Daily Archives: March 24, 2015

I am part of a group of constitutional and property law scholars who have filed an amicus brief in, Horne v. Dept. of Agriculture, an important Supreme Court case that will determine whether a federal program that forces owners to turn over large quantities of raisins to the government creates a taking that requires compensation under the Fifth Amendment. The brief is available here.

The Ninth Circuit court of appeals rejected the owners claim in large part because it concluded that the just compensation requirement of the Takings Clause affords less protection to personal [property] such as the raisins, than to real property (real property is the legal term for property in land).

Our brief points out what should have been obvious from the start: the text, history, and original meaning of the Takings Clause Fifth Amendment does not distinguish between real and personal property. The text specifically references private property generally, and is not limited to any particular type of property right. Nor does it indicate that one type is given less protection than another. Moreover, as we note, the desire to protect personal property against government requisitions was one of the main reasons why the Takings Clause and similar provisions in state constitutions were adopted in the first place. Modern Supreme Court precedent also makes clear that personal property is protected against uncompensated seizure, no less than real property.

The federal government also claims that there is no taking because the owners of the raisins benefit from the program that mandates their seizure. The purpose of the program is to artifically reduce the supply of raisins on the market, thereby creating a cartel that benefits producers. We point out that such benefits might reduce the amount of compensation the government owes. But it does not change the fact that a taking has occurred. Otherwise, the government could avoid paying full compensation in numerous other cases where property is taken by the state for purposes that might benefit the owners in some way. For example, if part of a coastal property is used by the government to build a military base, the owner may derive some benefit from the construction, because his remaining land may be more secure against attack. But that does not mean no taking has occurred, or that he is not entitled to full market value compensation.

The other signers include prominent academic experts on constitutional property rights, including my James Ely (Vanderbilt, author of The Guardian of Every Other Right: A Constitutional History of Property Rights), Nicole Garnett (Notre Dame), and my George Mason University colleague Adam Mossoff, among others.

Horne is one of the rare cases that that has gone to the Supreme Court twice. In 2013, the Court unanimously rejected the federal governments claim that the property owners should not even be allowed to present their Takings Clause argument in federal court without first paying some $483,000 in fines and pursuing various likely futile administrative remedies.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."

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Volokh Conspiracy: Constitutional and property law scholars amicus brief in Horne v. Dept. of Agriculture the raisin ...

Back in 2013, a lot of attention focused on a Third Amendment claim against Henderson, Nevada police officers. I wrote about the case here. The Third Amendment, which forbids the quartering of soldiers in private homes without the owners consent, is often the butt of jokes because it is so rarely litigated. But in this case, a Nevada family claimed that local police had violated the Amendment by forcibly occupying their home in order to gain a tactical advantage against suspected criminals in the neighboring house.

In this recent ruling, federal district court Judge Andrew Gordon dismissed the Third Amendment claim [HT: VC reader Sean Flaim]. Although it occurred several weeks ago, the ruling seems to have gotten very little attention from either the media or legal commentators outside Nevada. That is unfortunate, because the ruling raises important issues about the scope of the Third Amendment, and its applicability against state and local governments. A Here are the key passages from the opinion:

In the present case, various officers of the HPD and NLVPD entered into and occupied Lindas and Michaels home for an unspecified amount of time (seemingly nine hours), but certainly for less than twenty-four hours. The relevant questions are thus whether municipal police should be considered soldiers, and whether the time they spent in the house could be considered quartering. To both questions, the answer must be no.

I hold that a municipal police officer is not a soldier for purposes of the Third Amendment. This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment. Because I hold that municipal officers are not soldiers for the purposes of this question, I need not reach the question of whether the occupation at issue in this case constitutes quartering, though I suspect it would not.

This reasoning is very plausible and quite possibly correct. But it may too readily conclude that municipal police can never be considered soldiers for purposes of the Amendment. When the Amendment was enacted in 1791, there were virtually no professional police of the sort we have today. The distinction between military and law enforcement officials was far less clear than in the world of 2015. Moreover, many parts of the Bill of Rights were in part of inspired by abuses committed by British troops attempting to enforce various unpopular laws enacted by Parliament.

A second complicating factor is the increasing militarization of police forces in many parts of the country, which has resulted in cops using weapons and tactics normally associated with military forces. If a state or local government decides to quarter a SWAT team in a private home, it is not clear whether that is meaningfully different from placing a National Guard unit there.

In sum, Judge Gordon may well be right that the officers involved in this case are not plausibly considered soldiers under the Third Amendment. But he is too quick to conclude that no municipal police officer could ever qualify as such.

The issue of how long the soldiers (or militarized police) have to stay in a private home before their occupation of it qualifies as quartering is also a tough question. Without actually resolving the issue, Judge Gordon suspects that a 9 to 24 hour period is too short. I am not convinced. It seems to me that spending one night in the house does qualify as quartering, albeit for only a brief period. Just as the First Amendment covers even brief restrictions on freedom of speech and the Fifth Amendment requires compensation for the taking of even small amounts of private property, so the Third Amendment forbids even brief involuntary quartering of troops in private homes.

It is also worth noting that the Third Amendment is (along with the Seventh Amendment) one of the few parts of the Bill of Rights that has not yet been incorporated against state governments by the Supreme Court. Judge Gordon follows a 1982 Second Circuit decision in concluding that the Amendment does apply to state governments. I think that is almost certainly the right conclusion. Over the last few decades, leading scholars on different sides of the political spectrum have converged on the conclusion that the Fourteenth Amendment was originally understood to incorporate all of the individual rights protected by the Bill of Rights. It would be anomalous for courts to refuse to apply the Third Amendment to the states when almost all of the rest of the Bill of Rights does apply to them. A future Supreme Court decision on the subject would need to address the issue in more detail than Judge Gordon gives it here.

The difficult issues raised by the militarization of police forces suggest that it may be time to stop treating the Third Amendment as just a punchline for clever legal humor. Contrary to popular belief, there have been some egregious violations of the Amendment in the past, and we should not be too quick to assume such things wont recur.

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Volokh Conspiracy: Federal court rejects Third Amendment claim against police officers