Does the Third Amendment Speak to the George Zimmerman Case?

Author’s Note, April 23, 2012: I have removed the word “gated” from my description of the Twin Lakes community per the following link: “According to Ryan Julison, assistant to Martin family attorney Benjamin Crump, Twin Lakes is actually not entirely gated. There is also no guard at the gate, there are no high fences. The community is just modest condos, Julison says, not protected with the electronic equivalent of a castle moat. So the Gate Access Form provided by The Retreat at Twin Lakes Homeowners Association could be considered somewhat misleading.” – J. Neil Schulman

On February 26, 2012 George Zimmerman, a neighborhood watch volunteer in the Sanford, Florida Retreat at Twin Lakes community which had recently suffered a spate of home burglaries, observed 17-year-old Trayvon Martin walking in circles in the rain, and telephoned his local police department to report the activity as suspicious. While on the phone with the police dispatcher Zimmerman reportedly followed Martin, and at some point there was a confrontation between Zimmerman and Martin in which witnesses report Zimmerman down on the ground with Martin on top of him. We know this confrontation ended when Zimmerman, who was licensed to carry a concealed firearm, fatally shot Martin.

Zimmerman is now out on bond, charged by Florida with Second Degree Murder. The state’s affidavit in support of this charge alleges that Zimmerman improperly followed Martin, initiating the confrontation, even though in the bail hearing State Investigator Dale Gilbreath testified that Florida does not know whether Zimmerman continued to follow Martin after the police dispatcher advised him this was not needed, and even though according to Dale Gilbreath’s testimony the State does not know whether Zimmerman or Martin started the fight.

But it’s the Florida prosecution’s contention that Zimmerman can not claim self-defense justifying his use of deadly force since by following Martin he created the circumstances leading to the teenager’s death.

Much of the discussion of this case has referred to Zimmerman’s right to be armed, constitutionally preserved under the Second Amendment. I’ve previously written on these pages that instead of restricting George Zimmerman’s right to keep and bear arms, it should have been expanded to include Trayvon Martin’s right to defend his life.

But what has not been discussed is whether as a Neighborhood Watch volunteer, George Zimmerman was acting properly in following Trayvon Martin.

The Third Amendment 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.”

A narrow reading of this prohibition against “quartering” has failed to find a legal case to apply it to in the 221 years since it was added to the Bill of Rights. But this amendment’s placement between amendments preserving the right to keep and bear arms and restrictions on the powers of the government with respect to the privacy of the people deserves closer examination.

The Framers of the Constitution’s Bill of Rights did not see a clear distinction between soldiers and police officers. There were no municipal police departments in the United States at the time the Bill of Rights was under discussion, and crime control was the responsibility of the citizenry at large, responding to a “hue and cry” and organized ad hoc under the Power of the County — today still known using the original Latin phrase, posse comitatus. The American experience of the recent British subjects was that British soldiers were used by the royally-appointed governors as police officers. Embedding such officers among the people by quartering them in private homes was just one particularly egregious way of taxing the Americans to pay for the protection “services” being provided to them by their government.

After the 1992 Los Angeles riots I applied for and received a California license to carry a concealed firearm — which I carried in California until 2007 — and as training I took California’s PC-832 course, and passed the California POST exam. My Powers of Arrest and Communications and Tactics instructor, Jim Saharek, was a retired U.S. Secret Service agent; my Firearms instructor, Barry Dineen, was an LAPD officer. I got a perfect 4.0 grade in all three modules, as well as on the final POST exam.

There’s an aspect to this case which I have not heard discussed: that the “police” powers of a private citizen are in many cases identical to a sworn police officer’s — and for a good reason; most police powers originate with the private citizen. George Zimmerman was a neighborhood watch security volunteer on private property that he was authorized to be on.

When George Zimmerman observed Trayvon Martin acting in a manner he considered suspicious — walking around in circles in the rain — Citizen Zimmerman was acting within his assigned role to investigate further.

Citizen Zimmerman was acting within his proper role as a private Neighborhood Watch security volunteer to track Trayvon Martin, and to approach Trayvon Martin to ask him whether he lived on the property or who he was visiting.

The police dispatcher Zimmerman was talking to on the phone had an inferior understanding of the tactical situation than the security officer on scene (Zimmerman) and the dispatcher’s statement “We don’t need you to [follow your suspect]” was a well-intentioned attempt to keep Zimmerman out of jeopardy; but Zimmerman was the security officer on scene and was within his duty to pursue if he thought by doing so he was acting in protection of his neighbors’ safety.

I’ve heard TV pundits refer to George Zimmerman as a wannabe cop or “self appointed” neighborhood watch volunteer. This is a denigration of the private citizen’s responsibility to protect his neighborhood that would have shocked the Founding Fathers, who considered it was precisely the role of the private citizen to protect his neighbors whether as posse comitatus or as militia; the idea of standing police departments or military officers quartered among the people (Third Amendment prohibition) was exactly what the American Revolution — and the preservation of its principles in the Bill of Rights — was designed to escape.

It’s the denigration of the private citizen using “police” powers to protect his community — and the usurpation of these powers by a centralized authority — that is one of the principal methods by which Americans are infantalized by a paternalistic government.

It’s one of the main Progressive strategies since the late nineteenth century tilting us into a top-down authoritarian order. We now see how these usurped police powers are commonly abused against the citizenry.

We see it in SWAT teams breaking down the doors of private homes, and sometimes killing the homeowners, in a War on Drugs that trivializes the Fourth Amendment and usurps rights still held by the People under the Ninth Amendment.

We see it when police racially profile minorities, whether black youths like Trayvon Martin or Hispanics like George Zimmerman, who police think might be illegally in the country.

We see it in police officers arresting citizens who legally have the right to video or photograph them while executing their police powers in public places.

We see it in the common excessive use of police powers, in handcuffing even a six-year-old girl being taken into police custody for throwing a tantrum while in a kindergarten class.

We see it in TSA officers touching the private parts of women, children, and senior citizens, whose only crime is an intent to board a commercial airliner.

If merely by following Trayvon Martin, pursuant to his responsibilities as a Neighborhood Watch Volunteer, Citizen Zimmerman loses his right of self-defense, then there is one more disempowerment of the sovereign American citizen as understood by the Founders.

This prosecution is one more indication that the progressive centralization of authority in soldiers embedded among the citizens is a counterrevolution far along its way of reversing the liberties fought for and won in the American Revolution.

zimmerman lost trayvon between the buildings. this is supported by the 9-1-1 call zimmerman made.

trayvon got away and was supposedly heading to his uncle’s place

the ‘confrontation’ occurred just south of the crossing walk.

this means trayvon had to circle back to attack zimmerman

as for ‘deadly force’... a 6’2” guy slamming your head repeatedly against concrete is generally deadly.

OBVIOUSLY, zimmerman did nothing wrong here. it was his neighborhood... he has a right to defend his home, and by extension the home of his neighbor

There were no municipal police departments in the United States at the time the Bill of Rights was under discussion, and crime control was the responsibility of the citizenry at large, responding to a “hue and cry” and organized ad hoc under the Power of the County — today still known using the original Latin phrase, posse comitatus.

Not exactly true. The office of Town Constable was common in colonial America.

He makes a good point.

In my opinion, no he does not. The relation to the 3rd Amendment is strained at best and non-existant in practice. Although there was no established police force, there were sheriff's offices and "nigh'ts watches" established at the time of the fouding of the Constitution, so law enforcement was a civil function, paid for by citizens of the day.

The authors conjecture that there was no distinction between soldiers and police is incorrect. Soldiers were clearly defined and had a specific role in warfare against other nations and states. They were called upon to quell rebelion and insurrection, but never to police city streets. So, to try and apply the 3dA to this case would be quite troublesome and not how Z's defense should go, IMHO.

Although there was no established police force, there were sheriff's offices and "nigh'ts watches" established at the time of the fouding of the Constitution, so law enforcement was a civil function, paid for by citizens of the day.

His point was, however, that the discrepency in acknowledged police powers between the citizenry and any duly established law enforcement was much smaller then, than the vast gulf between the citizenry and police powers today. I think that's an extremely important observation that affects any number of issues facing the citizenry currently, not just the Zimmerman case.

I agree that the author was pointing out the discrepancy that existed, but his insistence that the 3dA covers the case is off track. Since the 3dA deals with quartering soldiers, there is no extrapolation that Z was quarted against the owners will since it was his own home (gated community not withstanding) and Z was there of his own accord.

“But it’s the Florida prosecution’s contention that Zimmerman can not claim self-defense justifying his use of deadly force since by following Martin he created the circumstances leading to the teenager’s death.”

If that’s their case, they’re gonna lose. Following people is not illegal, unless the person you’re following has a restraining order against you. It’s not provacative, it doesn’t justify someone instigating violence against you (if that’s what happened, and I don’t think the prosecution can prove that isn’t what happened), and it doesn’t negate your ability to defend yourself.

When the 911 operator said they didn't need him to follow the person he had called to report, Zimmerman said "Ok".

The media leaves that part out to make people think Zimmerman disregarded the 911 operator request and cowboyed up to chase Trayvon down. Liars, all.

Just from what I've heard on the 911 tape, it's hard to see where Zimmerman was doing anything wrong or doing anything he hadn't done many times before.

Moreover, supposedly Zimmerman wanted to be a cop and the reports say he had taken classes toward a law enforcement degree. As such, he likely knew police procedures.

It's even more likely that he would follow procedures and operator directions to show his potential as a future LEO.

What is happening to him, could happen to anyone doing the right thing by looking out for their neighbors and calling 911 to report something/someone suspicious.

Making people think twice about doing the right thing is what is really going on here.

Frankly, I hope the reason cited for any immunity, dismissal or acquital is straight self-defense. Let’s leave the 3rd Amendment out of it. This was ANYONE who does defends themselves as Zim apparently did, whether a neighborhood watch person or not, has more comfort from this decision.

If the state can’t so much as prove that the confrontation between Zimmerman and Martin was not because Martin taking offense at being surveilled and actively maneuvering into position and away from where he was staying - let alone that Zimmerman sustained injury to the back of his head due to being manhandled by Martin - it’s hard to see how they can legitimately even bring charges against Zimmerman. “Stand your ground” seems pretty irrelevant when you are pinned to the ground and getting your head banged into the cement . . .
The controversy is actually over the title of nobility claimed for blacks which, it is proposed, means that the right of defense of the self depends on the particular self being defended. Martin Luther King’s “content of character” has been losing out to color of skin precisely among those who most vociferously protested when the shoe was often on the other foot.

MarkTwain reposted my article before I added the following paragraph:

“I’m suggesting the Third Amendment opens a window to the context and mindset of the Framers regarding a standing paramilitary police department embedded among the people — beyond the literal and narrow text of the Third Amendment. The Supreme Court might well call this the “penumbra” of the Third Amendment.”

Yes, but what of it?

The Framers also made it quite obvious police powers were the domain of the states, and as others contributing to this thread have mentioned, taxpayer-funded law enforcement on a local level did exist in the Framer's time. Even more so, the Framers would have made the distinction between a soldier and a peace officer, and the Third Amendment clearly applies to soldiers.

Now, have modern-day police forces become para-militarized to such an extent they may resemble the "standing armies" our forefathers feared? One could certainly argue that point convincingly, but that's not a matter of Constitutional law. As a matter of Constitutional law, I would argue the Third has absolutely no practical application here, and as conservatives, we should be wary of any sort of "penumbra" concept because that almost invariably leads to over-reach.

In Florida, the law reads this way: “a person is justified in using deadly force (and does not have a duty to retreat) if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony, or to prevent imminent death or great bodily harm to himself or herself or another.” [Florida Statute Section 776.012.]

“The use of deadly force is further justified when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which the person is located.” [Florida Statutes Section 782.02]

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