by Elizabeth Price Foley

The shooting death of eighteen-year-old Michael Brown by Ferguson, Missouri police officer Darren Wilson has sparked a renewed national conversation about the militarization of police. While Officer Wilson’s deadly encounter with Brown did not involve militarized force, subsequent protests, looting, and riots have triggered the display and use of armored vehicles, M4 assault rifles, Humvees, Kevlar vests, grenades, camouflage, and other military-style equipment by state and local police. U.S. Attorney General Eric Holder criticized the police response, asserting, “At a time when we must seek to rebuild trust between law enforcement and the local community, I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message.” Holder’s comment—and the civil unrest in Ferguson—evinces a broader societal concern about the changing role and increasing firepower of police.

In an era when police seem to be “at war” with drugs and crime generally, are they essentially becoming local “soldiers”? This question, in turn, raises interesting questions about the applicability of the Third Amendment that declares, “No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Depending on whom one asks, the Third Amendment is either the most or least successful portion of the Bill of Rights. As Professor Glenn Reynolds put it recently, “I often tell my constitutional law students that the Third Amendment is the only part of the Bill of Rights that really works—because there are almost no cases of troop-quartering.” But as Reynolds also acknowledges, the paucity of Third Amendment litigation likely belies workability, reflecting instead a deep uncertainty about the scope and meaning of the amendment itself.

Part I of this article will examine the nature and extent of police militarization, and why such militarization likely plays a role in minority communities’ protests—such as those in Ferguson, Missouri—about the excessive use of force by state and local police. It will also examine a couple of recent cases that suggest that the Third Amendment may have relevant application to civil rights lawsuits involving militarized force. Part II will explore whether the Third Amendment is binding on the States as well as the federal government. Finally, Part III will consider the meaning of the word “soldier” and its potential application to state and local police.


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