Third Amendment Case in Nevada! (updated)

NV WTF

A federal lawsuit filed against the Henderson, NV police department raises Third Amendment issues! How exciting!

In the case, Anthony Mitchell and his family sued the City of Henderson and its Police Chief Jutta Chambers, Officers Garret Poiner, Ronald Feola, Ramona Walls, Angela Walker, and Christopher Worley, and City of North Las Vegas and its Police Chief Joseph Chronister, in Federal Court. The allegations stem from a domestic violence investigation, in which Mitchell alleges the Henderson police wanted him to let them use his house to gain a “tactical advantage” over the subject of their investigation.

At 10:45 a.m., Defendant OFFICER CHRISTOPHER WORLEY (HPD) contacted Plaintiff ANTHONY MITCHELL via his telephone. WORLEY told Plaintiff that police needed to occupy his home in order to gain a “tactical advantage” against the occupant of the neighboring house. ANTHONY MITCHELL told the officer that he did not want to become involved and that he did not want police to enter his residence. Although WORLEY continued to insist that Plaintiff should leave his residence, Plaintiff clearly explained that he did not intend to leave his home or to allow police to occupy his home. WORLEY then ended the phone call. (Complaint at Para 18)

Then, it gets really hinkey.

“Defendant Officer David Cawthorn outlined the defendants’ plan in his official report: ‘It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.'” (Complaint at Para. 19)

So what happened next? Allegedly the cops came to the house, beat on the door, and when Mitchell did not open up, they bashed the door down with a battering ram. They aimed their guns at him, screamed at him, shot him with “pepperball” rounds, searched the house, moved his furniture, and set up a lookout point in the house, and restrained him.

They then went to his father’s house, a few doors away, and made a similar “request.” They brought him to the Henderson police station, and when he tried to leave, they arrested him. (Complaint at Para. 39). They then intimidated his wife, Linda, into opening the door to the house and did just as they damn well pleased there as well. (Complaint at Paras 42-44)

The cops took Mitchell and his father to jail and booked them for obstructing an officer. They spent 9 hours in lockup. (complaint at Para 47). The Mitchells seek damages for violations of the Third and Fourth Amendments,assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress. How exciting that there might be a Third Amendment claim!

If the allegations are true, then this is a horrendous case that should result in a hell of a lot worse than mere civil damages. However, I think that the defamation count is a really bad idea. The rest of the complaint is so strong that throwing that in there seems gratuitous, and doesn’t get the plaintiff much mileage. However, given the strength of Nevada’s new Anti-SLAPP statute, it could expose the Plaintiff to (at the least) some serious procedural hassles.

UPDATE: I’ve gotten some questions as to whether the Third Amendment violation is a viable claim. I’m really not sure. Are police “troops?” Was the occupation of the Mitchell home actually “quartering” these “troops” in his house? Logically, I think the case could be made. What logical distinction is there in saying that you could quarter police in a private home, but not soldiers? When the Third Amendment was drafted, we didn’t even have police forces. I would argue that the police we have today serve many of the same functions as 1700 era soldiers, and thus the distinction between police and troops is nonexistent.

As far as “quartering” goes, that seems a little harder. To “quarter” means “to furnish with housing.” That’s a bit different from commandeering someone’s private property for an investigation (justified or not). To “quarter” seems to me to imply that the troops were going to, at least, use it as a dwelling. However, I could see a judge buying the argument that such an occupation of a private home constitutes “quartering” when the “troops” take over the private home for an indefinite period of time, and pretty much make themselves “at home” there (as they are alleged to have done).

The judge on this case is Andrew P. Gordon, a relatively new judge to the bench here, and one I have not yet practiced before. His judicial nomination questionnaire responses seem careful, and don’t really reveal much about how he might look at this.

H/T: Courthouse News

41 Responses to Third Amendment Case in Nevada! (updated)

  1. Charles Platt says:

    I often feel *as if* local police forces in the US have started to test the waters to find out just how far they can go, and/or get us used to the idea that they can violate basic rights in any way they choose. I say “as if” because I doubt that it is as planned and premeditated as that. I don’t think they are intellectually capable of devising such a macro-strategy. But it’s having that effect. They certainly got away with it in Massachusetts after the marathon bombing, when they ordered people out of their homes “for their own safety” (and apparently everyone fell for it). I like to think that in the western states, it may not be so easy.

  2. Ernie Menard says:

    Holy cow. If these allegations are true it seems to me that not only should a judgment bankrupt the city of Henderson but these cops need to be imprisoned.

    Coincidentally, I was also thinking about the police action in Massachusetts.

  3. Horace Hogsnort says:

    Legalized thuggery. The Nazi SS must all be smiling in their graves.

  4. I suppose it’s a good thing I’ve never been in this situation. Adults in my house are armed. If the door flys in without anyone being invited in, lead will fly. Police overstepping their authority do not have authority.

    • Charles Platt says:

      captaindooley, do you have a sign outside notifying potential “visitors” that you are armed? So they cannot claim that they didn’t know. I’m thinking maybe I should have such a sign here.

      As for the Third Amendment, it says “no soldier.” Is there a precedent establishing that this term includes latter-day police? As I recall, there were no police, as such, when the Constitution was written. This could be as unproductive as the endless argument over the term “militia” in the Second Amendment.

      • “As for the Third Amendment, it says “no soldier.” Is there a precedent establishing that this term includes latter-day police? Radley Balko would certainly offer compelling evidence that the difference has long since become moot…

      • george says:

        a soldier is a member of a land based armed force. The cops and the soldiers are both armed. They are both found in the executive branch. They have a chain of command. They both fight wars. The cops are constantly fighting the war on drugs and the war on crime. The case law around the 3rd has to do with the home being private and free from government agents……it is also a fifth amendment violation. Taking private property for public use without compensation.

        • Charles Platt says:

          Understood. But federal armed forces, i.e. “soldiers” are forbidden from doing law enforcement in the US (excluding the Coast Guard, and National Guard when state authorized). If there is a successful argument that state law enforcement is now indistinguishable from “soldiers,” then presumably federal law enforcement such as FBI or BATF are also indistinguishable from “soldiers,” and under posse comitatus, they can no longer operate. I’m thinking that no court would want to establish a precedent admitting that the line has blurred between “soldiers” and law enforcement–even though it obviously has.

          • george says:

            Well, the feds give the locals and state surplus military gear and then they train them. They use weapons and tactics just like soldiers, they are involved in the war on terror, drugs and crime. They operate on land and are controlled by the executive branch civilians. They are armed and trained to potentially avoid the posse comitatus act or what remains of it, stealthy becoming the military to avoid the Constitutional issues. The professional police departments we have are defacto standing armies that have watches and shift commanders. They have a hierarchy just like a military and also have standing orders. Only a less than honorable judiciary would call the police something other than a non standing army. The case law around the 3rd amendment set precedent that no government agent can “take over your home” and you have an expectation of privacy. This police action is wrong on so many levels. We live in perilous times and the people are the enemy of the police by virtue of the us v them attitude and the actions of the executive branch agencies with police powers.

  5. Reblogged this on ExCop-LawStudent and commented:
    Third Amendment? This ought to be real interesting. There are exactly five cases that deal with this amendment, and only one is a SCOTUS case.

  6. The cops official report is an admission of guilt. They already said they were going to do it however they wanted. Since this is OUTRIGHT prohibited by the 3rd amendment there is no defense.

  7. So I think the cops should have just set up house in the abuser’s home. Seriously, if it was a domestic case just keep repeating, “We’ve been invited here. We’re setting up shop until you can learn to behave or move out.”

    Still totally fucking wrong, but at least in this case it’s not involving a non-involved party.

  8. Scott Nazzarine says:

    Sweet! I was wondering when the gvmt was gonna finally get around to this. They’ve been really slackin on 3rd Amendment violations for the last couple hundred years. We also haven’t had a lot of cruel & unusual punishments lately. Gotta get to work on that one now too. I’m actually surprised that this wasn’t a drug case: that’s where they seem to get the most enjoyment — and cover from the courts — in violating all our other constitutional rights. In all seriousness, I’ve actually always wanted to bring a Third Am. claim based on an undercover/confidential informant staying in someone’s home to fight the war on drugs. If thats not the modern equivalent of quartering a soldier, I’m not sure what is.

    • senpai71 says:

      Scott,

      In CA, there have been a number of cruel & unusual claims by state inmates resulting from prison overcrowding and the like.

    • Some Random Guy says:

      You really think “arresting” suspects by burning them to death via incindiary tear gas grenades fired into a structure isn’t “cruel and unusual”?

  9. For the sake of the cops, they better hope it is only a 3rd amendment violation. Otherwise they are looking at home invasion charges with deadly weapons. Serious felonies with a minimum of 2 years in prison. In either case, it’s very very bad. The whole thing just wreaks of evil. Forced to relinquish your home. Then charged with obstruction. No doubt the cases will be dismissed. God I hope these jackboots are held accountable. Accountable with prison time.

  10. lujlp says:

    Well given according to the complaint the cops helped themselves to the homeowners water cooler and refrigerator I think a case can be made for quartering

  11. AlgerHiss says:

    Radley Balko put together an interesting photo quiz entitled “Cop or Soldier?”:

    http://www.theagitator.com/2012/01/16/take-the-quiz/

    It’s quite pertinent to this thread.

  12. a_random_guy says:

    Why is this not simply criminal? Breaking and entering, assault and battery, assault with a deadly weapon, etc.? There was no legal justification for the actions – it should be possible to remove their immunity. Charge the individuals involved with crimes and have them prosecuted. If this insane plan was approved by supervisors, then charge the supervisors too.

  13. Melody says:

    Fascinating!

  14. David Eoll says:

    “It was determined to move to 367 Evening Side…”

    “Move to” or “move IN to”? Interesting choice of verb. Doesn’t help them, that’s for sure.

  15. truthspew says:

    I’ll help you out with “Are police troops.” They are for the most part uniformed thugs trained in para-military methods. So yes in my opinion the 3rd does apply.

  16. Eli Grey says:

    the fact of the matter is the police illegally and unlawfully entered the home of a sovereign citizen of this country and not only illegally occupied his home, but then illegally imprisoned or held captive an innocent citizen who had committed no crime and therefore could not be compelled to acquiesce to their demands. the officers involved should be charged criminally for breaking and entering, destruction of property and MOST DEFINITELY KIDNAPPING.these officers should be stripped of their badges and prosecuted to the fullest extent of the law. any judge who does not adjudicate this case properly should be deemed complicit in the crime and be named as a defendant as well.

    • Jean says:

      Until we get tough, nothing will change.
      We get tough: Execute the officers. ALL of them.

      Up the ante, even: Burn their families to death with them, at home, at night while they sleep. Terminate the genome.

      Send a warning. The blade cuts both ways.

      • Don’t you think that’s a little disturbingly extreme? I realize that you’re just being hyperbolic, but “burn their families to death with them”? Dude. Not cool.

        • Jean says:

          Hyperbolic?
          Read the comments on policeone – they see us as enemy combatants. They murder with impunity. Not just kill too often, but literally MURDER, and walk.IF there’s a review, the conclusion is usually that they did nothing wrong.
          They kill pets, burn people, commit crimes – and YOU want to think I’m being unreasonable?

          I think you are the one who is delusional. Reality check time: Copblock.org, and look from there. Policeone for the counter-point – which often makes them look WORSE than the (potential) abuses on CopBlock.

          I am deadly serious, especially as they get bigger guns and better armor, and we are disarmed.
          Will we wait until our only weapons are pitchforks and torches?

          And are you naive enough to believe that these ex-military recruits aren’t a de-facto STANDING ARMY, as discussed by the founders? That they don’t have an “us vs. them” mindset?
          NYPD and Philly PD and Chicago PD are excellent examples of the evils of police occupation.

          Please wake up to the reality: YOU can be shot and it will be justified later, without any real reason – because the piggy YOU paid for, “feared for his life (safety)”. You “reached for your waistband,” or, “made a furtive movement.”

          Unless you believe powers granted to government can never be abused….

          In which case, you’re a sheep, not a human.

  17. […] Third Amendment Case in Nevada! (randazza.wordpress.com) […]

  18. Regarding the question of police v. soldier, I suggest we all turn the to mayor of New York City who recently proclaimed he controlled the 7th largest army in the world. As we saw following 9/11 police departments across the nation, large and small, regard the men and women of the NYPD as their peers, their equals. They refer to those who are not cops as ‘civilians.” They tell us they are fighting a ‘WAR on drugs.” All this seems pretty clear that today’s cop has, in fact, become a soldier.

  19. Joey Gross says:

    A couple of useful pieces of information that are more informative than the vast majority of these posts can be found here:
    1. Roger Roots, Are Cops Constitutional?, 11 Seton Hall Const. L.J. 685 (2001); and
    2. http://www.abajournal.com/news/article/how_did_americas_police_become_a_military_force/
    You’re welcome. There have been 5 or so cases on the 3rd Amendment; it would be very interesting to see SCOTUS make a modern call on this (If they did, it would be an incredibly narrow holding).

  20. fritzworld says:

    I live in Henderson and haven’t heard of this till now. My main point is why is North Las Vegas PD involved in a Henderson operation? North Las Vegas is 20 miles across the valley from Henderson. If HPD needed or wanted backup assistance they should have contacted Las Vegas Metro PD, whose Chief is actually also the Clark County Sheriff and has loose authority to use the MLV Metro PD in any assisting as needed. NLVPD is mentioned as defendant in the case, but there is no explanation as to why or how they were even involved.

  21. Edward F. says:

    It’s a shame that the event boils down to legal interpretations when we all know that what happened was just plain WRONG.

  22. fritzworld says:

    I’m still very curious as to how/why North Las Vegas PD plays a role in the lawsuit? How are they involved, being 20 miles across town.? If HPD needed a backup all they had to do was call LVMPD for an assist. The lawsuit also is inclusive in suing NLVPD. Why?

  23. fritzworld says:

    This whole thing is really surprising from the aspect of a “real” surveillance operation. All the hubbub caused by the HPD trying to gain an advantage over those they wished to surveill seems lost because of all the commotion they caused in the neighborhood! Very poor police work, I’d say! Next time they need to call those they wish to watch and ask if they can set up a command post in their living room so they can watch them! :-)

  24. The 3d A. has not been incorporated, though it probably could be.

    Are police troops? In form–no, not at all. The 3d A was directed at professional armies. Police aren’t even militia, (except inasmuch as every tom dick and harry is part of the general militia).

    In substance? Possibly. Were these guys armed as paramilitaries? Did they have army gear? “Obsolete” army gear is often sold to police departments at a tremendous discount; thus police in rural Oklahoma can end up with APCs.

    Last, is this quartering? Not in form, but possibly in substance. The key question is–did they raid the fridge?

  25. “When the Third Amendment was drafted, we didn’t even have police forces.”

    America has had municipal sheriffs and jails since at least 1625. The idea of standing armies living with citizens was an anathema to the colonists, which is why the British occupation of Boston in 1770 hit them so hard and became the basis for the 3rd Amendment.

Follow

Get every new post delivered to your Inbox.

Join 2,891 other followers

%d bloggers like this: