07.08.13, 02:16 AM #1
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Homewoners Sue Police For Violating The Third Amendment
Police Commandeer Homes, Get Sued
LAS VEGAS (CN) - Henderson police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court.
Anthony Mitchell and his parents Michael and Linda Mitchell sued the City of Henderson, 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.
Henderson, pop. 257,000, is a suburb of Las Vegas.
The Mitchell family's claim includes Third Amendment violations, a rare claim in the United States. The Third Amendment prohibits quartering soldiers in citizens' homes in times of peace without the consent of the owner.
"On the morning of July 10th, 2011, officers from the Henderson Police Department responded to a domestic violence call at a neighbor's residence," the Mitchells say in the complaint.
It continues: "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.
Mitchell claims that defendant officers, including Cawthorn and Worley and Sgt. Michael Waller then "conspired among themselves to force Anthony Mitchell out of his residence and to occupy his home for their own use." (Waller is identified as a defendant in the body of the complaint, but not in the heading of it.)
The complaint continues: "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.'"
At a few minutes before noon, at least five defendant officers "arrayed themselves in front of plaintiff Anthony Mitchell's house and prepared to execute their plan," the complaint states.
It continues: "The officers banged forcefully on the door and loudly commanded Anthony Mitchell to open the door to his residence.
"Surprised and perturbed, plaintiff Anthony Mitchell immediately called his mother (plaintiff Linda Mitchell) on the phone, exclaiming to her that the police were beating on his front door.
"Seconds later, officers, including Officer Rockwell, smashed open plaintiff Anthony Mitchell's front door with a metal ram as plaintiff stood in his living room.
"As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor.
"Fearing for his life, plaintiff Anthony Mitchell dropped his phone and prostrated himself onto the floor of his living room, covering his face and hands.
"Addressing plaintiff as 'asshole', officers, including Officer Snyder, shouted conflicting orders at Anthony Mitchell, commanding him to both shut off his phone, which was on the floor in front of his head, and simultaneously commanding him to 'crawl' toward the officers.
"Confused and terrified, plaintiff Anthony Mitchell remained curled on the floor of his living room, with his hands over his face, and made no movement.
"Although plaintiff Anthony Mitchell was lying motionless on the ground and posed no threat, officers, including Officer David Cawthorn, then fired multiple 'pepperball' rounds at plaintiff as he lay defenseless on the floor of his living room. Anthony Mitchell was struck at least three times by shots fired from close range, injuring him and causing him severe pain." (Parentheses in complaint.)
Officers then arrested him for obstructing a police officer, searched the house and moved furniture without his permission and set up a place in his home for a lookout, Mitchell says in the complaint.
He says they also hurt his pet dog for no reason whatsoever: "Plaintiff Anthony Mitchell's pet, a female dog named 'Sam,' was cowering in the corner when officers smashed through the front door. Although the terrified animal posed no threat to officers, they gratuitously shot it with one or more pepperball rounds. The panicked animal howled in fear and pain and fled from the residence. Sam was subsequently left trapped outside in a fenced alcove without access to water, food, or shelter from the sun for much of the day, while temperatures outside soared to over 100 degrees Fahrenheit."
Anthony and his parents live in separate houses, close to one another on the same street. He claims that police treated his parents the same way.
"Meanwhile, starting at approximately 10:45 a.m., police officers entered the back yard of plaintiffs Michael Mitchell and Linda Mitchell's residence at 362 Eveningside Avenue. The officers asked plaintiff Michael Mitchell if he would be willing to vacate his residence and accompany them to their 'command center' under the guise that the officers wanted Michael Mitchell's assistance in negotiating the surrender of the neighboring suspect at 363 Eveningside Avenue. Plaintiff Michael Mitchell reluctantly agreed to follow the officers from his back yard to the HPD command center, which was approximately one quarter mile away," the complaint states.
"When plaintiff Michael Mitchell arrived at the HPD command center, he was informed that the suspect was 'not taking any calls' and that plaintiff Michael Mitchell would not be permitted to call the suspect neighbor from his own phone. At that time, Mr. Mitchell realized that the request to accompany officers to the HPD command center was a tactic to remove him from his house. He waited approximately ten minutes at the HPD command center and was told he could not return to his home.
"Plaintiff Michael Mitchell then left HPD command center and walked down Mauve Street toward the exit of the neighborhood. After walking for less than five minutes, an HPD car pulled up next to him. He was told that his wife, Linda Mitchell, had 'left the house' and would meet him at the HPD command center. Michael Mitchell then walked back up Mauve Street to the HPD command center. He called his son, James Mitchell, to pick him up at the HPD command center. When plaintiff Michael Mitchell attempted to leave the HPD command center to meet James, he was arrested, handcuffed and placed in the back of a marked police car.
"Officers had no reasonable grounds to detain plaintiff Michael Mitchell, nor probable
cause to suspect him of committing any crime.
"At approximately 1:45 p.m., a group of officers entered the backyard of plaintiffs Michael Mitchell and Linda Mitchell's residence at 362 Eveningside Avenue. They banged on the back door of the house and demanded that plaintiff Linda Mitchell open the door.
"Plaintiff Linda Mitchell complied and opened the door to her home. When she told officers that they could not enter her home without a warrant, the officers ignored her. One officer, defendant Doe 1, seized her by the arm, and other officers entered her home without permission.
"Defendant Doe 1 then forcibly pulled plaintiff Linda Mitchell out of her house.
"Another unidentified officer, defendant Doe 2, then seized plaintiff Linda Mitchell's purse and began rummaging through it, without permission, consent, or a warrant.
"Defendant Doe 1 then escorted Linda Mitchell at a brisk pace through her yard and
up the hill toward the 'Command Post' while maintaining a firm grip on her upper arm. Plaintiff Linda Mitchell is physically frail and had difficulty breathing due to the heat and the swift pace. However, Doe 1 ignored her pleas to be released or to at least slow down, and refused to provide any explanation for why she was being treated in such a manner.
"In the meantime, the officers searched and occupied plaintiffs Michael Mitchell and
Linda Mitchell's house. When plaintiff Linda Mitchell returned to her home, the cabinets and closet doors throughout the house had been left open and their contents moved about. Water had been consumed from their water dispenser. Even the refrigerator door had been left ajar and mustard and mayonnaise had been left on their kitchen floor."
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07.08.13, 03:24 AM #2
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07.08.13, 06:30 AM #3
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Police arrested the Mitchell family in Nevada when the family refused to let the police take over their houses to observe the Mitchells’ neighbors. The Mitchells have sued the City of Henderson and various police officials, claiming among other things that the police violated their rights under the Third Amendment to the Constitution.
Anthony Mitchell lives on the same street as his parents Michael and Linda Mitchell in a suburb of Las Vegas. On July 10, 2011, police contacted Anthony to say they were investigating his neighbors for domestic violence. The police said they required stationing officers in Anthony’s house to gain a tactical advantage. Anthony refused, saying he did not want to get involved.
According to a disturbing news report, officers later arrived at Mitchell’s house demanding entry. When he did not open the door, this report cites court documents as saying that the police broke through the door and treated Mitchell in a threatening and abusive manner, ordering him to the ground at gunpoint and using non-lethal force on Anthony and his pet dog. The report says police also forced themselves upon Mitchell’s parents, and that they took control of both houses for most of the day, during which time they consumed food and drink and treated both houses as their residences.
If the facts in this news story are true, then the police committed a host of clear violations of the Mitchells’ civil rights. One fascinating claim is that the police violated the least-invoked provision of the Bill of Rights in the Constitution, the Third Amendment.
The Third Amendment provides, “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.”
The Third Amendment was adopted by the Framers of the Constitution because the British would often force themselves upon colonial families, claiming rooms for the redcoats to live in even when the colonist owners objected. So the amendment was adopted to say that this could never happen in America during peacetime, and even in the event of war, Congress would have to devise a system for using houses that Congress would be able to sell to the voters.
No Third Amendment case has ever been decided by the Supreme Court, and I am only familiar with one Third Amendment case that has made it to a federal court of appeals. That case is Engblom v. Carey, decided by the U.S. Court of Appeals for the Second Circuit in 1982.
In Engblom, state corrections officers (prison personnel) went on strike. The governor of New York called in New York National Guard personnel to take their places at the prison during the strike. State leaders then evicted the officers from their state-provided living quarters, and put the National Guardsmen in those rooms. The corrections officers sued, saying that this violated their Third Amendment rights.
The interesting discussion is found in the dissenting opinion in Engblom. Judge Irving Kaufman dissented from the majority in this 2-1 decision from the court’s conclusion that these state-owned facilities were a “home” in which the officers had property rights, by which they could refuse to allow the Guardsmen to stay there.
But Kaufman agreed that National Guardsmen were “soldiers” within the meaning the Third Amendment. And he agreed that the Third Amendment applies to states through the Fourteenth Amendment:
With its historical origins in the English Bill of Rights of 1689, the Third Amendment of the United States Constitution embodies a fundamental value the Founders of our Republic sought to insure after casting off the yoke of colonial rule: the sanctity of the home from oppressive governmental intrusion.
Kaufman then went on to correctly apply Supreme Court precedent for determining which rights are “fundamental rights” that also apply to the states. (The Bill of Rights by itself only gives citizens rights against the federal government.) Kaufman elaborated further, in part quoting from an earlier case, saying:
The notion that the home is a privileged place whose privacy may not be disrupted by governmental intrusions is basic in a free and democratic society… a sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some isolated place ….
It will be fascinating to see how this lawsuit proceeds. The courts could easily agree with the Second Circuit that the Third Amendment applies to state and local governments. And there is no doubt that the Mitchells are homeowners.
There will be two questions on this count.
The first is whether the police are considered “soldiers” under the Third Amendment. On one hand, they are not military personnel of any type. On the other hand, they carry firearms and act with the coercive power of government, including the inherent threat of being able to use deadly force.
The second question will be duration. Officers did not even sleep in the houses overnight.
Does a day-long occupation of a house amount to being “quartered” there?
Regardless of the Third Amendment issue, the police are in real trouble if these facts are true, as they egregiously violated the rights of three American citizens. And it may provide an unusual opportunity to consider one of our original constitutional rights, one that most Americans are probably unaware of, because thankfully even in this modern age of government overreach the government has never literally invaded their homes--at least, not yet."Watch what people are cynical about, and one can often discover what they lack.” -- Gen. George S. Patton
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