Third Amendment Case in Nevada! (updated)

July 4, 2013

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


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