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Police Take Over Private Home, Giving Rise To Possible Third Amendment Violation

bill-of-rights

Outside of an amusing article in The Onion several years back, the Third Amendment, which prevents the quartering of troops in a private home in times of peace without the consent of the owner, is pretty much the most ignored Amendment in the Constitution simply because it seems so irrelevant to our current circumstances. After all, does  anyone realistically expect the 82nd Airborne to show up at their house demanding room and board any time soon? Of course not. Historically, of course, it was a different matter. During the Colonial Era, it was a fairly routine practice for British troops to essentially commandeer the homes of colonists as residences for one reason or another, and when it came time to draft the Bill of Rights the Founding Fathers considered it an important enough issue to put fairly high on the list of rights protected by the Constitution.

Since then, however, the Amendment has been something of a dead letter largely because the circumstances under which it could be implicated are so rare as to be nearly non-existent. Even during early American wars like the War of 1812 and the Civil War, when soldiers were roaming the countryside far from anything resembling a base, there were seemingly no reports of soldiers occupying homes of civilians, although it was common for both sides in the Civil War to make use of property that had been seemingly abandoned in the face of advancing armies. In fact, in the entire history of the United States, there is only one recorded case that directly implicates the Third Amendment. It comes from New York State back in the 1980s:

The case was initiated by a 1979 strike by New York State correction officers. While the officers were on strike, some of their duties were performed by National Guardsmen who were activated. At Mid-Orange Correctional Facility (and other facilities) striking employees were evicted from employee housing which was then used to house some of the National Guard. Two of the evicted officers at Mid-Orange C.F., Marianne E. Engblom and Charles E. Palmer, subsequently filed suit against the state of New York and its governor, Hugh L. Carey.

The Court of Appeals in this case ended up ruling that the National Guardsmen did indeed qualify as soldiers under the Third Amendment, and that the case otherwise should go forward. At the District Court level, the case was dismissed because the Court determined that the National Guardsmen, as agents of the state had qualified immunity and therefore could not be held liable for their actions, which seems like an odd ruling only because qualified immunity has never been held to mean immunity from violations of Constitutional rights. Apparently, the case ended at that point because there was no record of any subsequent appeals. (If you’re interested in this case, you can read the Court of Appeals decision here.)

Now, there’s a case out of Henderson, Nevada, a large suburb of Las Vegas, in which the Third Amendment, among other Constitutional claims is playing a role  in what has to be one of the more shocking cases of police abuse I’ve seen in some time:

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.

Ilya Somin explains some of the legal issues involved in this case over at The Volokh Conspiracy:

The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.” On the other hand, as Radley Balko describes in his excellent new book The Rise of the Warrior Cop, many police departments are increasingly using military-style tactics and equipment, often including the aggressive use of force against innocent people who get in the way of their plans. If the plaintiffs’ complaint is accurate, this appears to be an example of that trend. In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as “soldiers” for Third Amendment purposes.

A second possible impediment to winning a Third Amendment claim in this case is that the Amendment is one of the few parts of the bill of rights that the Supreme Court still has not “incorporated” against state governments. For incorporation purposes, claims against local governments (like this one) are treated the same way as claims against states. On the other hand, the Supreme Court has never ruled that the Third Amendment does not apply to the states. If, as the Court has previously decided, virtually all the rest of the Bill of Rights applies to state governments, there is no good reason to exclude the Third Amendment. If the Third Amendment part of the case is not dismissed on other grounds, the federal district court may have to address the issue of incorporation..

It does strike me that it might be difficult to convince a Federal Court that a local police department is included under the definition of “soldier” as intended by the drafters of the Third Amendment. This is especially true given the fact that the Amendment’s clear history is rooted in the colonial practice of British troops, as opposed to local law enforcement personnel, taking up residence in private homes. The case from New York isn’t necessarily of much help here either because the National Guardsmen in question, while they were temporarily acting as prison guards, are quite clearly more properly thought of as an arm of the military rather than an arm of law enforcement. Given the fact, though, that there’s been precious little actual litigation about the 3rd Amendment in the 222 years that the Bill of Rights has been in effect, though, it’s hard to say what any Federal Court is liable to do here either with the “Who is a soldier” question, or with the question of whether the 3rd Amendment can be applied to the states (although the Court of Appeals in the New York case ruled that it can, that decision is not binding Constitutional law.)

As the text quoted above makes clear, though, while the Third Amendment is the most unique and legally interesting part of the case, there are also claims being asserted under the 4th and 14th Amendment, along with various state law claims arising under Nevada law. There’s little question in my mind that those claims will be found to be legally sufficient to go forward, and based on the factual allegations set forth in the Complaint it seems fairly apparent that they absolutely should go forward. The allegations in this Complaint, and the way that Mitchell, his family, and his property were treated by the Henderson police is absolutely shocking and seems to be yet another example of the kind of police abuse that has become far too common in America. What’s even more shocking in this case, though, is that the police seem to have quite obviously known that Mitchell was not a suspect of any kind in whatever matter it was that they happened to be investigating, they simply decided that they required use of his property for some reason and decided to acquire that use by any means necessary. If that’s what America has come to, then we’ve clearly gone too far.

This is a case that bears paying attention to in the future.

Here’s the Complaint:

Mitchell v City of Henderson et al Complaint by dmataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. rudderpedals says:

    I like the creative 3rd amendment idea but IMO the facts fit condemnation. The 5th amendment “taking” claim is stronger.

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  2. bk says:

    Perhaps unsurprisingly, this case has gotten exactly no coverage whatsoever in our local (Las Vegas Review-Journal) rag. Using that paper for fishwrap is actually an insult to fish.

    Like or Dislike: Thumb up 13 Thumb down 0

  3. @rudderpedals:

    I’d argue that the 4th and 14th Amendment claims are stronger. Even if this were considered a “taking” under the 5th Amendment, the damages available would be de minims as best

    Like or Dislike: Thumb up 3 Thumb down 0

  4. JKB says:

    Being unfamiliar with any SCOTUS decisions, it seems people are taking a narrow view of what was meant by “soldiers” in the amendment. Given there was not a tradition of federal law enforcement at the time except by military forces, soldier could have a more expansive definition today.

    But then this was not federal or state actions but local. So I would think some examination of the common law posse comitatus and the enacting statutes common in state code would be in order

    Posse comitatus
    (Law) The power of the county, or the citizens who may be
    summoned by the sheriff to assist the authorities in
    suppressing a riot, or executing any legal precept which
    is forcibly opposed. –Blackstone.

    But this action by the officers seems to be a more investigatory taking rather than a call for assistance when being forcibly opposed. So can a citizen be ordered to surrender property and liberty to aid in a non-emergent police action?

    Like or Dislike: Thumb up 4 Thumb down 1

  5. @JKB:

    As I note above, there is only one reported case on the Third Amendment, which is the one from the 2nd Circuit Court of Appeals noted above. This issue has never been argued before SCOTUS

    Like or Dislike: Thumb up 1 Thumb down 0

  6. CSK says:

    Maybe I’m missing something big, but my understanding is that the police received a domestic violence call about a situation at another residence. Instead of going to that address, they wanted to take over a neighbor’s house for some sort of surveillance purpose? Why? Doesn’t a domestic violence call require an immediate response to the actual location at which the violence is reported to be taking place? What were the cops going to do–sit in the Mitchell house and watch while someone next door got beaten up or killed? This doesn’t even make sense in terms of a hostage situation.

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 0

  7. JKB says:

    @Doug Mataconis:

    Ah, well, not being trained in legal research, I’m always left with the lingering doubt that there may be some vector of query that while not fully on point, informs in such areas as say the definition of “soldier” for constitutional purposes.

    I looked a bit into Nevada’s code and can’t find a statute that this guy violated. And if he did “resist an officer”:

    NRS 199.280  Resisting public officer. A person who, in any case or under any circumstances not otherwise specially provided for, willfully resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his or her office shall be punished:

    as he had no firearm at the time or at least was unable to use it over the phone the charge is a misdemeanor.

    as is

    NRS 199.270  Refusal to make arrest or to aid officer.  Every person who, after having been lawfully commanded by any magistrate to arrest another person, shall willfully neglect or refuse so to do, and every person who, after having been lawfully commanded to aid an officer in arresting any person, or in retaking any person who has escaped from lawful custody, or in executing any lawful process, shall willfully neglect or refuse to aid such officer shall be guilty of a misdemeanor.

    Which to my mind do not apply when one refuses police use of your home for investigatory/surveillance purposes of a non-emergent situation. Otherwise, we have not 4th or 5th amendment rights.

    So they form a raid, break down his door, pepper-ball him for what could only possibly be a misdemeanor. And if their purpose was the quietly observe the neighbor, then a police raid next door seems an odd way to do that.

    Ironically, obstructing a public officer which involves lying or misleading comes right before Oppression under Color of Office.

    NRS 197.200 Oppression under color of office.
    1. An officer, or a person pretending to be an officer, who unlawfully and maliciously, under pretense or color of official authority:
    (a) Arrests or detains a person against the person’s will;
    (b) Seizes or levies upon another’s property;
    (c) Dispossesses another of any lands or tenements; or
    (d) Does any act whereby the person, property or rights of another person are injured,
    Ê commits oppression.
    2. An officer or person committing oppression shall be punished:
    (a) Where physical force or the immediate threat of physical force is used, for a category D felony as provided in NRS 193.130.
    (b) Where no physical force or immediate threat of physical force is used, for a gross misdemeanor.

    While unlikely to be charged given the officers close relationship with the other thugs in government, i.e., the DA, but it appears the officers are guilty of a Class D felony for assaulting a citizen while armed over what could only have been a misdemeanor if only his refusal had been unlawful.

    Like or Dislike: Thumb up 7 Thumb down 0

  8. michael reynolds says:

    @CSK:

    If I were guessing, I’d guess the domestic complaint was just a useful legal pretext for cops who had some other, greater interest in the target. Maybe drugs?

    Like or Dislike: Thumb up 12 Thumb down 1

  9. PD Shaw says:

    I wouldn’t consider the allegation here to be one of quartering troops. It sounds as if they occupied the house for less than a day, perhaps less than 9 hours? Too much redacted to be sure.

    Quartering troops was the means by which the Crown shifted the cost of defending the Colonies to the colonial governments. An unfunded mandate or hidden tax. The colonial governments were supposed to supply barracks for the troops that were defending them, but some refused. One of the Intolerable acts gave the military the right to seize vacant buildings, include houses if quarters weren’t provide. I think these were intended to be indefinite seizures, not temporary.

    Like or Dislike: Thumb up 2 Thumb down 1

  10. JKB says:

    @PD Shaw:

    On the other hand, without the 3rd amendment violation claim, this would be just another police abuse of power that goes unnoticed. So successful or not before the government’s arbitrator, this claim is somewhat successful in the pursuit of liberty.

    Like or Dislike: Thumb up 5 Thumb down 0

  11. Mr. Prosser says:

    @michael reynolds: Not only the pretext but I would also like to know the racial/ethnic makeup of the neighborhood and whether Mr. Mitchell and his neighbor were white.

    Like or Dislike: Thumb up 2 Thumb down 1

  12. Dave Schuler says:

    @PD Shaw:

    From the Somin post cited above:

    From the complaint, it’s hard to tell how long the officers planned to stay in the house, though it’s possible to interpret their actions as an effort to occupy the house for as long as it might take to get incriminating information on the neighbor they sought to observe).

    Possibly an indefinite occupation.

    Like or Dislike: Thumb up 3 Thumb down 0

  13. RGardner says:

    As it typical, they assault a dog as well

    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.”

    Like or Dislike: Thumb up 7 Thumb down 0

  14. Franklin says:

    I was going to say: I’m surprised they didn’t also kill a dog. Well, at least they tried.

    This is hideous. I mean, christ, we’re debating how many amendments they might have violated. Clearly they felt their investment in SWAT equipment was being under utilized.

    And what penalty will the offending officers suffer? None, as usual.

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  15. Jeremy Kiahsobyk says:

    BANG BANG BANG BANG BANG BANG BANG BANG BANG BANG BANG BANG

    Like or Dislike: Thumb up 3 Thumb down 0

  16. anjin-san says:

    I’m surprised they didn’t also kill a dog. Well, at least they tried.

    What is it about cops and shooting animals? A while back, Oakand PD shot a fawn, which was a danger to no one, in front of a bunch of kids. These rocket scientists could not even manage a clean kill, they riddled it with bullets, but it died slowly and painfully.

    http://abclocal.go.com/kgo/story?section=news/local/east_bay&id=7420987

    Like or Dislike: Thumb up 6 Thumb down 0

  17. Phillip says:

    @anjin-san: I believe it has something to do with their sociopathic tendencies.

    Like or Dislike: Thumb up 6 Thumb down 0

  18. Ben Wolf says:

    @anjin-san: Given the NYPD managed to wound five times as many innocent bystanders as the initial shooter outside the Empire State Building, it does make one wonder how much weapons training and practice cops actually have.

    Like or Dislike: Thumb up 8 Thumb down 0

  19. Jack says:

    I actually see this as a perfect example of when self defense by the home owner would be justified against the police. The police are lucky the home owner did not own or seek to use his own firearm(s). With no Probable Cause, exigent circumstance, or warrant, they violated this man’s castle. The full weight of the criminal justice system, and without any “qualified immunity” should be brought forth upon these officers and any chain-of-command that was involved. Let these gentlemen see what the inside of a cell looks like for a while.

    Like or Dislike: Thumb up 13 Thumb down 0

  20. Jack says:

    @Ben Wolf: They are much better at stopping and frisking minorities. That seems to be where the training is focused these days.

    Like or Dislike: Thumb up 5 Thumb down 2

  21. PD Shaw says:

    @Jack:” With no Probable Cause, exigent circumstance, or warrant, they violated this man’s castle. ”

    You don’t know any of that is true. The Plaintiff has no obligation to identify any defenses that the police might raise, and usually won’t. The Plaintiff might not know what the true circumstances around the police action here.

    And if someone is going to start shooting at a group of five or more police officers, I expect that someone will be dead shortly.

    Like or Dislike: Thumb up 2 Thumb down 4

  22. Jenos Idanian #13 says:

    I am relieved. While there is some disagreement about the precise nature of the police’s misconduct, there seems to be no one saying that the police were justified here.

    I’m with the majority here. Unless something truly astonishing comes out to completely invalidate what we know so far, I want a big-ass lawsuit, firings, and maybe even criminal prosecutions.

    Like or Dislike: Thumb up 11 Thumb down 0

  23. OzarkHillbilly says:

    @Jack:

    The police are lucky the home owner did not own or seek to use his own firearm(s).

    Jack, no offense but do you really think the home owner would have survived that? He’s lucky he survived this.

    Like or Dislike: Thumb up 10 Thumb down 0

  24. PD Shaw says:

    I don’t know if I’m the only one having trouble reading the entire Complaint, the yellow highlighted portions are redacted on my computer. I found another version (pdf) here, in which I can see the highlighting.

    What strikes me about some of the new (at least for me) material is the events at the second house was that the mother’s purse was searched (without consent or warrant), and when she returned the cabinets and closets throughout the house had been opened and searched. There is something more than surveillance of a third-party house involved here.

    Like or Dislike: Thumb up 9 Thumb down 0

  25. Jack says:

    @OzarkHillbilly: They had no right to enter in the 1st place. But a few rounds coming their way would certainly have caused them to rethink their strategy. Some things are worth dying for.

    Like or Dislike: Thumb up 5 Thumb down 4

  26. Jack says:

    @PD Shaw: Show me a warrant, exigent circumstances or PC and I will change my tune. Until then, they didn’t have it.

    Like or Dislike: Thumb up 1 Thumb down 0

  27. PD Shaw says:

    @Jack: Burden-shifting. I don’t disagree that there was no warrant. That would have been easy enough for the plaintiff’s attorney to check over the last two years. But things like exigent circumstances or justification to act without a warrant are technical legal issues that a judge resolves after the fact after hearing both sides of the argument.

    Plus a quick google suggests Nevada does not have a Castle doctrine. You’re proposing murder in this instance.

    Like or Dislike: Thumb up 1 Thumb down 3

  28. Jeremy says:

    Cops are a genuine menace to Americans. This isn’t even police acting as political intimidation (although that also happens), this is just police acting as thugs. And considering how militarized police are these days, I think you could make a very good argument that they are soldiers as defined under the Third Amendment.

    Legalize drugs. Decriminalize society. Complete top to bottom reform of the legal code. And demilitarize the cops. Nobody needs this.

    Like or Dislike: Thumb up 6 Thumb down 2

  29. CSK says:

    @michael reynolds:

    But whose drugs? The house at which the domestic violence call was taking place? The cops already had good reason to demand entry there–which would be to rescue the person on the receiving end of the violence. On the other hand, if they had probable cause to suspect the Mitchells of conducting a drug operation, they wouldn’t have called and asked/demanded to use their house as a surveillance post, which would have given the inhabitants warning. And why would the cops warn drug dealers that they’d be coming into their house?

    On the basis of what we know–and it’s important to keep that in mind–this sounds like a case of some rogue cops deciding to go full-out Gestapo.

    Like or Dislike: Thumb up 4 Thumb down 0

  30. PD Shaw says:

    @CSK: I think the Plaintiffs either don’t know what the cops were up to, won’t tell us what they think the cops were up to, and/or the cops lied about what they were up to.

    How do cops conduct secret surveillance of the house next door after five or more cops have used a metal battering ram to take down the front door? Shouting obscenities and entering the house with weapons drawn?

    Like or Dislike: Thumb up 3 Thumb down 1

  31. wr says:

    @Jack: “The police are lucky the home owner did not own or seek to use his own firearm(s). ”

    Yes, because they would have had to spend good money on dry cleaning to get his blood and brains out of their uniforms.

    Geeze, do you have to think like a child to worship the almighty Second? If there’s an armed SWAT team breaking into your house, reaching for a weapon, no matter how legally owned, is nothing more than suicide.

    Oh, yes, I know that all Ammurrican gun owners are magically brilliant shots, just like Bruce Willis in a Die Hard movie. But ten quasi-military assault team members will still turn you into strips of bacon within seconds.

    Like or Dislike: Thumb up 7 Thumb down 2

  32. wr says:

    @Jack: “They had no right to enter in the 1st place. But a few rounds coming their way would certainly have caused them to rethink their strategy. Some things are worth dying for. ”

    Yeah, you get right on that.

    Here I was concerned I was being a little harsh saying you were indulging in childish thinking. Now I’ve got to apologize to children.

    Like or Dislike: Thumb up 0 Thumb down 2

  33. Jack says:

    A state does not have to have Castle Doctrine for one to legally resist an illegal entry in to one’s home.

    Like or Dislike: Thumb up 4 Thumb down 0

  34. Jack says:

    @wr: So what you are saying is this guy was just supposed to take it because a few rogue agents of the state wearing tin badges decided that his house was going to be their “surveillance point”? What I’m saying is this could have been much worse for all involved because the police decided to take this to the next level without cause. Now that this has come to light, firings and jail time are the minimum that should occur.

    Like or Dislike: Thumb up 2 Thumb down 0

  35. anjin-san says:

    @ Jack:

    Right wing fantasies about winning shootouts with the police are something to behold.

    Like or Dislike: Thumb up 3 Thumb down 2

  36. OzarkHillbilly says:

    @Jack:

    Some things are worth dying for.

    Says the man who did NOT have 5 guns pointed at him. You know what? It is real easy to act the tuff guy on the internet. In the real world? Bullets kill. Come back when you have had a few come your way.

    Like or Dislike: Thumb up 1 Thumb down 0

  37. OzarkHillbilly says:

    @Jack:

    So what you are saying is this guy was just supposed to take it because a few rogue agents of the state wearing tin badges decided that his house was going to be their “surveillance point”?

    Uhhhh, excuse me Jack, but what in this lawsuit leads you to think this guy is just “taking it”?

    Like or Dislike: Thumb up 2 Thumb down 0

  38. PD Shaw says:

    @Jack: You are advocating murder, killing someone to defend your right to property, not to protect yourself from death or great bodily harm.

    Value of Life > Value of Property

    Like or Dislike: Thumb up 1 Thumb down 3

  39. OzarkHillbilly says:

    @OzarkHillbilly:

    what in this lawsuit leads you to think this guy is just “taking it”?

    Oh… Wait a minute, I forgot, lawyers are for pussies, real men die in a hail of bullets. And are soon forgotten.

    Like or Dislike: Thumb up 3 Thumb down 1

  40. OzarkHillbilly says:

    @PD Shaw:

    Value of Life > Value of Property

    Yes PD, always yes.

    Like or Dislike: Thumb up 0 Thumb down 0

  41. OzarkHillbilly says:

    @OzarkHillbilly: I just noticed, the arrow points in the wrong direction. Should say

    Value of Property > Value of Life

    Like or Dislike: Thumb up 0 Thumb down 1

  42. OzarkHillbilly says:

    @PD Shaw: I just reread your post… you got it right. My sarcasm has it wrong. Oh well…. time to make dinner anyway.

    Like or Dislike: Thumb up 0 Thumb down 0

  43. superdestroyer says:

    @PD Shaw:

    There was a police stand off at the house next door (and across the street) from the two houses mentioned in the complaint. Image if your next door neighbor was in an armed standoff with the police and you refuse to leave your house or cooperate with the police.

    Like or Dislike: Thumb up 0 Thumb down 0

  44. PD Shaw says:

    @superdestroyer: If there is an armed standoff with the police next door, I am taking my family and leaving the area. I can’t tell if that necessarily happened here from the Complaint though; do you have additional background?

    Like or Dislike: Thumb up 1 Thumb down 0

  45. Tyrell says:

    There have been other cases in which the government/military/NSA seized property. In the 1960′s a property in either Michigan or Ohio was the site of some sort of crash. Authorities swooped in, took control of a farm property and took the owner and his wife away and they were held in some sort of custody, all of this without a warrant. The other case is the curious Kecksburg, Pennsylvania incident in which something also crash landed. In this case there were hundreds of witnesses who stated stated categorically that it was not any of the following: weather balloon, airplane, meteorite, or Russian satellite. Again some sort of gvt/military/NSA people came in refusing to show proper identity and took control of property, took cameras, roughed people up, warned people not to talk, and got the news media out. To this day the government has refused to declassify all of the information about this.

    Like or Dislike: Thumb up 1 Thumb down 0

  46. Tony W says:

    @RGardner: Cruelty to animals should always justify an additional, commensurate, punishment.

    Like or Dislike: Thumb up 3 Thumb down 0

  47. rsmatesic says:

    “. . . qualified immunity has never been held to mean immunity from violations of Constitutional rights.”

    You’re way off. The whole purpose of qualified immunity is to shield the defendant from liability, and ideally, the hassle of a trial, for violations of constitutional rights that were not “clearly established” at the time of their violation. For example, you may think you have a constitutional right to video a cop in an interaction with you or another citizen, and to not have your camera seized from you while doing so. But in those federal circuits in which this right is not yet clearly established, any cop you sue for seizing your camera would be able to invoke qualified immunity to get out of the suit.

    Like or Dislike: Thumb up 0 Thumb down 1

  48. wr says:

    @Jack: “So what you are saying is this guy was just supposed to take it because a few rogue agents of the state wearing tin badges decided that his house was going to be their “surveillance point”? What I’m saying is this could have been much worse for all involved because the police decided to take this to the next level without cause. Now that this has come to light, firings and jail time are the minimum that should occur. ”

    What I am saying is indeed that firings and jail time should occur. And that they would not occur if this homeowner picked up a gun and started firing at — or even threatening — the SWAT team. Then they would have blasted him into spaghetti sauce with their infinitely superior firepower, and the news headline would be about some gun nut battling it out with the cops and losing.

    So yes, I’m saying he was supposed to “take it” — at the moment it was happening. While he was confronting and armed and hostile invading force.

    And once it was over, since we don’t live in a military dictatorship, he should have gone to a lawyer and gone to the press and gone to his congressman, his mayor, his city councilperson, and made sure that everyone knew what had happened to this peaceful, law-abiding citizen. He should have sued, he should have started political campaigns, he should have done everything possible to get anyone involved thrown off the force.

    But none of that could happen if he was dead, particularly if he was the dead guy who decided to shoot at a SWAT team.

    And while it’s great that you now think lawsuits are a good idea, just a little while ago you were yapping about how this was worth dying for. Just the opposite. It’s worth living for. Dying does no one any good here.

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  49. wr says:

    @Tyrell: Boy, it doesn’t take a lot of scratching to reveal just who the local right wingers really are…

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  50. Jack says:

    @PD Shaw: No, I’m advocating defending your home. The police do not have the right to come into someone’s home for no reason, arrest him, and then camp out there. A badge does not make it right.

    Eight centuries of legal precedent, from the Magna Carta to two 20th century SCOTUS decisions, explicitly authorize the use of reasonable force to prevent unlawful acts of the police. The laws of the state of Nevada do not privilege police officers from justified force if they are acting outside the bounds of the law. The Fourth Amendment, and a substantially similar provision in Nevada’s Constitution prohibit precisely this conduct- the unwarranted and unlawful entry into a private home by government agents.

    Our Second, Third, and Fourth Amendment rights were established by our Founding Fathers for expressly this reason: Prior to, and during, the American Revolution, armed agents of the British government- soldiers- would routinely enter private homes without cause, assault homeowners and arrest them without charges, and quarter themselves in private homes in order to intimidate homeowners into submission. Expressly for this reason, we have a right to keep and bear arms, a freedom from quartering in private homes, and a freedom from unreasonable searches and seizures.

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  51. superdestroyer says:

    @PD Shaw:

    I searched for police stand offs in Henderson Nevada in June 2011 and found this news report http://www.ktnv.com/news/local/125308298.html It is the correct date and address.

    The question is what are the police allowed to do do when there is a stand off next door. Can they force you from your house during a “tactical situation” versus leaving a citizen in the middle of a stand off.

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  52. sam says:

    “It does strike me that it might be difficult to convince a Federal Court that a local police department is included under the definition of “soldier” as intended by the drafters of the Third Amendment. This is especially true given the fact that the Amendment’s clear history is rooted in the colonial practice of British troops, as opposed to local law enforcement personnel, taking up residence in private homes. ”

    Yeah. And as originalists are always telling us, we must cleave to the meanings of the terms of and Amendment at the time of its adoption. Except, of course, when we’re talking about the constitutionality of the Air Force.

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  53. PD Shaw says:

    @superdestroyer: Thanks for the link. I was thinking several scenarios were possible before.

    Timing: The police gathered outside the house they seized just before noon and the domestic violence perp was taken into custody at 2 p.m. So, the seizure of the home was less than three hours. I don’t think that’s “quartering.”

    I would say that the police power includes reasonable searches and seizures without pre-judicial approval in emergencies. Even if the circumstances justified the seizure of the home, there are also issues about exceeding the scope of any such justification, such as false arrest of the first home-owner or searching the purse and closets/drawers of the second home-owner. I think at the very least damage to the home (door) should be reimbursed under the Fifth Amendment as a taking. There is no Fifth Amendment claim in the Complaint, so I wonder if those damages have been reimbursed.

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  54. creeper says:

    @CSK: Consider also that they broke into the house with a battering ram. Now don’t you suppose that might have given the next-door neighbors a clue that they were there?

    Talk about stupid. No, on second thought not stupid. Totalitarian to the extreme.

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  55. superdestroyer says:

    @creeper:

    the police were in a stand off with the neighbor next door. The Michell’s seemed to want to refuse to both evacuate their homes or assist the police during the stand off. The neighbor knew the police was there. Remember, they had set up a command post.

    Also, who calls his others when the police are banging on the door. I suspect the family are grifters and see a huge win in suing the police

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  56. PD Shaw says:

    More background in this morning’s papers:

    Police had gone to the 300 block of Evening Side Avenue, near Horizon Ridge Parkway and the Las Vegas Beltway, for an alleged domestic violence incident at Phillip White Jr.’s home, according to a media report at the time and the lawsuit.

    White was believed to have barricaded himself and a child inside his home at 363 Evening Side.

    SWAT officers closed all entrances and exits to the neighborhood. The standoff lasted hours.

    Police began to call people in their homes.

    . . .

    Meanwhile White, the man at the center of the reported domestic violence incident that sparked the standoff with police, was arrested on one count each of domestic battery-first offense and coercion.

    Attempts to contact White on Friday were unsuccessful.

    However, Henderson Municipal Court records show that on Nov. 1, 2011, both charges against White were dismissed with prejudice and that the case was closed.

    Pictures of houses at link too.

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  57. Jack says:

    I guess the Henderson officers weren’t accustomed to being told “no,” because they figured that that meant he was obstructing justice, so they broke down his door, arrested him at gunpoint, for good measure went to his parents’ house arrested them.

    His parents were lured out of their home and arrested, the lawsuit alleges.

    According to the complaint, “Plaintiffs Anthony Mitchell and Michael Mitchell were subsequently transported to Henderson Detention Center and were booked on charges of Obstructing an Officer. Both Anthony and Michael Mitchell were detained for at least nine hours and were required to pay a bond to secure their release from custody.

    “A criminal complaint was subsequently filed by the Henderson city attorney’s office … charging them with counts of Obstructing an Officer. All criminal charges against plaintiffs were ultimately dismissed with prejudice.”

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  58. superdestroyer says:

    @Jack:

    Once again, what are the police suppose to do when there is a stand off situation and there are people in the houses next door? Are just suppose to ignore that there are people there? The claim reads much different when you find out that their next door neighbor was in a stand off when police.

    What is amazing is in one post everyone will argue that Zimmerman was legally bound to do what the 911 operator told him to do and then it the next post people are arguing that people do not have to do anything the police ask of them during a stand off.

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  59. Jack says:

    @superdestroyer: They didn’t tell the occupants, “there is a standoff next door and we want you to leave for your safety”, they said “we want your house so we can watch the people next door”. A home owner can refuse such a request/demand as is his right. As all charges were dropped with prejudice, it’s obvious the police overstepped. A little research will show it was 107 degrees in Nevada that day, so I bet the popo just wanted to get out of the sun.

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  60. superdestroyer says:

    @Jack:

    In the complaint, the father stated that the police asked him to come down to the command post and call his neighbor on the phone. The father most definitely knew that there was a stand off going on. Why would the police tell the father in the house across the street but not the son who was next door. All he know is that the lssues listed in the complaint are slightly different than what has been reported in the media. Everyone has misinterpreted what “surveillance” means and thought it was a drug stake out.

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  61. Mark says:

    Can someone explain to me under what rule of law they were operating under? To me this seems like an illegal taking and certainly violates a whole host of rights not to mention that the officers involved acted like street thugs. I personally did not think, short of a Governor signed state of emergency that the police had the ability to just walk into your house without a warrant or PC.

    I am very pro 2nd amendment but I have to say that pulling a weapon on police is not the answer to this.

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  62. Mark says:

    NRS 197.200 Oppression under color of office.

    1. An officer, or a person pretending to be an officer, who unlawfully and maliciously, under pretense or color of official authority:

    (a) Arrests or detains a person against the person’s will;

    (b) Seizes or levies upon another’s property;

    (c) Dispossesses another of any lands or tenements; or

    (d) Does any act whereby the person, property or rights of another person are injured,

    Ê commits oppression.

    2. An officer or person committing oppression shall be punished:

    (a) Where physical force or the immediate threat of physical force is used, for a category D felony as provided in NRS 193.130.

    (b) Where no physical force or immediate threat of physical force is used, for a gross misdemeanor.

    [1911 C&P § 541; RL § 6806; NCL § 10487]—(NRS A 1967, 462; 1995, 1172)

    NRS 197.210 Fraudulent appropriation of property. An officer who fraudulently appropriates to his or her own use or to the use of another person, or secretes with the intent to appropriate to such a use, any money, evidence of debt or other property entrusted to the officer by virtue of his or her office, shall be punished:

    1. Where the amount of the money or the actual value of the property fraudulently appropriated or secreted with the intent to appropriate is $650 or more, for a category D felony as provided in NRS 193.130. In addition to any other penalty, the court shall order the person to pay restitution.

    2. Where the amount of the money or the actual value of the property fraudulently appropriated or secreted with the intent to appropriate is less than $650, for a misdemeanor.

    [Part 1911 C&P § 80; RL § 6345; NCL § 10029]—(NRS A 1967, 462; 1979, 1419; 1989, 1431; 1995, 1173; 2011, 158)

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  63. Deserttrek says:

    the cops all belong in jail first then put on a list similar to a sex offender registry so they will never be cops or even security guards ever again.
    any and all government officials who support these criminal cops should be removed from office and join them in prison.

    this is disgusting and no civilized society should permit such actions

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  64. Westridge says:

    I guess they had to fill out the violate bill of rights punchcard.

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