Continuously opining, intermittently publishing.

Nearly two years ago on July 10, 2011, police officers in Henderson and North Las Vegas demanded to use a house as a tactical outpost or command center for a domestic violence investigation of the residents’ neighbors. When the residents appropriately told the police to buzz off, the police battered down the door, shot the occupants with nonlethal bullets, arrested the residents, and commandeered the house. (The charges were eventually dismissed with prejudice.)

Now, the lawyers for the family have brilliantly lain in wait for two years just before the statute of limitations expires* to sue the cities under a host of claims under 42 U.S.C. § 1983 (the federal civil rights statute), notably applying the Third Amendment—the one that prohibits the forcible quartering of soldiers during peacetime—as well as the Fourth Amendment (no unreasonable searches and seizures). Read the complaint here. It is dated July 1, 2013.

Assuming the facts in the complaint as pleaded are true, the plaintiffs deserve blood but will get only money. If the plaintiffs are stalwart enough not to settle (and the cities should absolutely try their hardest to settle), may the jury award them many millions of dollars—as punition for this sort of outlandish, outrageous, malevolent behavior. $100 million sounds about right.

If the government does not settle (assuming the plaintiffs are even willing), and it has the temerity to appeal any judgment, this will be a chance for the appellate attorneys to argue for the incorporation of the Third Amendment against the states—at least in the states inside the 9th Circuit.

Not all of the Bill of Rights apply against the states. (Until the early 20th century, none of the first ten amendments to the U.S. Constitution applied to state governments. See Gitlow v. New York, 268 U.S. 652 (1925), which applied some of the limitations on government in the First Amendment to the states using language in the Fourteenth Amendment.) Most of the Bill of Rights has been incorporated to/against the states. The Third Amendment has not, except in the 2d Circuit (Connecticut, New York, Vermont), because of that Circuit’s holding in Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982).

Admittedly, the Third Amendment, which reads,

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,

contemplates soldiers not police officers, per se. There are also comparative factual issues in the Englbom case that make Englbom harder to serve as an analogy, particularly that the governmental agents were National Guardsmen under the control of the Governor of New York. But without having done much historical research in this area, I’m sure I could come up with a novel but convincing argument to conflate the two concepts (soliders and police).

In any case, the Mitchell family deserves to heap opprobrium upon the cities of Henderson and North Las Vegas and I hope they pay the family handsomely for their actions. Every man’s home should be safe from random governmental force.

* There is no federal statute of limitations for § 1983 claims, so they track the personal injury statutes in the states underlying the federal jurisdictions where the federal courts sit. Nevada’s relevant statute appears to limit these actions to 2 years from the incident.

The Seton Hall Circuit Review at Seton Hall University School of Law graciously published my article, entitled The Defendant’s Right to Jury Trial in Jones Act Claims: Washington State’s Endicott Opinion Invites Much Needed Supreme Court Review near the end of December.

Plaintiffs in Jones Act claims have the ability to elect to have the claims heard in federal court or in state court. When a federal court hears the claim, the plaintiffs may elect to have it heard in admiralty (with no jury trial) or under another form of jurisdiction where either party can elect to have a jury determine the facts of the case. This is because the Seventh Amendment demands that the right to trial by jury be preserved except in a few special circumstances. The Supreme Court long ago ruled that admiralty trials were one of those exceptions.

At issue is that the plaintiff can elect to have the claim heard in admiralty or not in federal court, and because plaintiffs can amend their complaints (often as a matter of right), a plaintiff may first elect a form of trial that requires a jury and then amend the complaint to switch it back to admiralty. When this happens, some courts say the switching back is okay because even though the jury trial right should have attached in the first form of jurisdiction, because the plaintiff had the power to elect in the first place, there’s no harm done. Other courts say that so long as you keep the claim in admiralty, there is no jury trial right, but once you elect to have the case heard in another jurisdictional form, the jury trial right attaches irrevocably.

My article explores that split of authority and argues the latter courts are right. If you quote this article, please do so with the following attribution (amended as your citation framework may direct): O. Shane Balloun, The Defendant’s Right to Jury Trial in Jones Act Claims: Washington State’s Endicott Opinion Invites Much Needed Supreme Court Review, 9 Seton Hall Cir. Rev. 1 (2012).

If you want to read the predicate opinion by the Washington Supreme Court, Endicott v. Icicle Seafoods, Inc., 224 P.3d 761 (2010), it is here.