A Third Amendment Case in Nevada


Wait, a Third Amendment lawsuit? Yep. They’re pretty rare. The Third Amendment forbids the quartering of troops in the homes of citizens, something the British did when we were a colony. And a family in Nevada is suing the police for occupying his home.

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.

I don’t know if they have a Third Amendment claim; that will depend on whether the court rules that police officers are the equivalent of soldiers. But they sure as hell have a case for wrongful arrest and Fourth Amendment violations. If that isn’t a violation, it’s hard to imagine what would be.

Comments

  1. says

    The police breaking down your door and pointing guns at you for the “crime” of saying “no” to them? Yup, sounds like a police state to me.

  2. jaxkayaker says

    I’m not a lawyer, but I have to wonder at the wisdom of suing based on the 3rd amendment, since it relies on the premise that police=soldiers, and there were more obvious legal theories to rely on, as Ed pointed out, like wrongful arrest.

  3. Chiroptera says

    Wait, a Third Amendment lawsuit? Yep. They’re pretty rare.

    I was about to say: I didn’t even know there was a Third Amendment.

    I don’t know if they have a Third Amendment claim; that will depend on whether the court rules that police officers are the equivalent of soldiers.

    It might also depend on whether this is an example of “shattering”; I thought by quartering referred to soldiers living in a home as opposed to a barracks.

    Would the Fourth Amendment apply? What if the police found a bag of pot while in the home?

  4. says

    Wouldn’t it have been easier to forcefully enter the residence where the actual crime was taking place, rather than that of a neighbor in order to gain “tactical advantage”?

    Either the police are incredibly stupid, or there’s something else going on here.

  5. dingojack says

    a) Are police officer members of the military?
    b) did the police officers intend to live and sleep in his home?
    c) did someone in higher authority assign such living/sleeping arrangements?

    This also begs the question to what extent are the public obliged to assist| permitted to resist the police in the course of their lawful duties?

    Dingo

  6. Chiroptera says

    Area Man, #4: …or there’s something else going on here.

    Yeah, the state security forces having to remind the masses who’s in charge.

  7. machintelligence says

    It sounds like illegal seizure (of his house) to me. The illegal arrest part depends on the state law requiring the assistance of police officers. Hot pursuit is often the standard. IANAL

  8. says

    The Fifth Amendment’s Due Process might apply, but I’m not sure about the Fourth: strictly speaking, nothing was taken for use against them in a legal proceeding so it is unclear whether the greatly weakened Search and Seizure clause applies. These approaches are iffy, especially in light of how the courts have been ruling on them recently.

    I think the Third Amendment is a good avenue to pursue. The issue here is law enforcement forcing a home owner to turn over resources to temporarily support said law enforcement. This is EXACTLY the situation that the Third Amendment was intended to prevent. The lack of precedent may also be helpful in getting a conviction. Also note that there has been a very visible militarization of law enforcement in the US in the last couple of decades, making the distinction between civil police and military soldier rather blurry.

    It should also be noted that police, as such, did not exist in the late 1700s; that function was considered the duty of the militia… soldiers, in other words. The primary function of the Redcoats quartered in homes during the late colonial period was to enforce the king’s will and the laws of Parliament. I think a very strong case could be made, both from an originalist and a broad interpretation, that the Third Amendment applies.

  9. Ben P says

    I’m not a lawyer, but I have to wonder at the wisdom of suing based on the 3rd amendment, since it relies on the premise that police=soldiers, and there were more obvious legal theories to rely on, as Ed pointed out, like wrongful arrest.

    A lawsuit is not limited to a single claim.

    I read the complaint when I saw this on Reddit the other day. The third amendment claim is one of about 50 claims the Plaintiffs bring including Third, Fourth, Fifth and 14th amendment claims as well as state law claims for assault/battery, wrongful arrest, conversion of property etc.

  10. Ben P says

    Wouldn’t it have been easier to forcefully enter the residence where the actual crime was taking place, rather than that of a neighbor in order to gain “tactical advantage”?

    Either the police are incredibly stupid, or there’s something else going on here.

    Area Man, #4: …or there’s something else going on here.

    Yeah, the state security forces having to remind the masses who’s in charge.

    Ed’s excerpt doesn’t make this clear. The Courthouse News Bit addresses it in some detail, and the complaint provides more.

    Basically the police were called out to the nextdoor neighbor’s house for a domestic violence complaint. There was something to the effect of the neighbor saying her husband (who has open warrants) had left but said he was going to come back and shoot her (or something like that).

    The police decide the best way to deal with this is a stakeout in the house next door to watch for so and so coming back. They walk up to the house next door and the Plaintiff in this case says “nope sorry, don’t want to get involved, find another house.”

    The officers subsequently concoct this scheme to force the Plaintiff to allow them into his house or be arrested for obstructing.

  11. postwaste says

    I have a bad feeling about this one. Given the current level of State surveillance, the increasing immunity of police from accountability and the increasing amount of public apathy on these matters, it is probable a new precedent wil be set.

  12. unbound says

    dingojack – Wouldn’t it have been Reichskriminalpolizeiamt for the time period? I always had a hard time tracking the various police forces…

  13. Don Williams says

    Re Area Man at 4: “Wouldn’t it have been easier to forcefully enter the residence where the actual crime was taking place, rather than that of a neighbor in order to gain “tactical advantage”? ”

    The “tactical advantage” came from pulling a gun on a surprised , unarmed homeowner rather than confronting the possible armed perp.

    You know — kinda like Obama going to other countries and advising them on how to fix their problems instead of addressing 5 years of massive unemployment, collapsing median incomes, and exploding federal debt in the country that actually elected him President.

  14. says

    The incident referred to occurred two years ago, Wednesday and it seems a long time to put together a case that is as clear cut as this one seems to be.

    I looked for a bit but couldn’t find any photos of the plaintiff. I assume since he and his parents weren’t all gunned down that they must be white folks.

  15. eric says

    The issue here is law enforcement forcing a home owner to turn over resources to temporarily support said law enforcement. This is EXACTLY the situation that the Third Amendment was intended to prevent.

    Like postwaste, I’m pretty pessimistic that the judicial branch will say no the executive branch in this political climate.

    It’s also pretty grim thinking about how a loss could cause a big change in future police behavior. I expect that this is unusual because most police forces simply would not have considered doing this (evicting someone temporarily so they can use the person’s house for surveillance on a third party). But if a court determines that its legal, pretty much every force could start using it as a regular procedure.

  16. eric says

    The incident referred to occurred two years ago, Wednesday and it seems a long time to put together a case that is as clear cut as this one seems to be.

    IANAL but that indicates to me that one side thinks its going to lose, so its stalling. Don’t know which side, though – it may have more to do with the local lawyers knowning the particular judge than one of them believing their client is on the wrong side of the law.

  17. ozboy says

    As another poster has stated, the line between the military and the police has become rather blurry since the militarization of America’s police forces.
    Some units of police now wear full military combat fatigues, they wear military combat helmets and boots, they use military tactics and they use military equipment – up to and including light tanks. Very often when you see pictures of some “police” actions it appears for all the world to be military soldiers in the pictures.

    It will be interesting to see if this case makes it to the Supremes, and if it does how they will rule on this important issue.

  18. iplon says

    I think if they are going to go with the 3rd Amendment defense, they probably will have to also rely on the 14th Amendment, since it restricts the state/local governments from violating the bill of rights.

    But I’m not a lawyer so yeah.

  19. D. C. Sessions says

    The cops weren’t thinking this through. If they’d gotten legal advice first, they could have simply used civil forfeiture to take the house and evict the plaintiff. Then instead of suing the police for damages, he’d have to sue just to get the house back. Which would be tricky, since his credit would be nonexistent thanks to the huge unsecured loan for the house (which he no longer owned.)

    All in all, a total win for the police. And the house would have paid for a lot of things that the department needed.

  20. timberwoof says

    The outcome of this case is a Bugout Sign.

    If you were living in Germany in the 1930s and didn’t have the advantage of history books dropped into your lap through a time warp, what were the signs that it was time to get out before it’s too late? What are the signs today in the US?

  21. John Horstman says

    @10: Allowing localized policing forces i.e. militias to carry guns is also the intended purpose of the second amendment. The whole thing sure makes a lot of sense if we actually consider its historical context. :-P

  22. escuerd says

    Don Williams @15:

    You know — kinda like Obama going to other countries and advising them on how to fix their problems instead of addressing 5 years of massive unemployment, collapsing median incomes, and exploding federal debt in the country that actually elected him President.

    Ooooookay.

  23. whheydt says

    Given the reactions to the police and the tactics, perhaps the best analog would be the Gehiemestaatspolizei, but that analogy would work better if it had be done by DHS.

  24. Ben P says

    @10: Allowing localized policing forces i.e. militias to carry guns is also the intended purpose of the second amendment. The whole thing sure makes a lot of sense if we actually consider its historical context. :-P

    That would make sense except…well….that isn’t it’s historical context.

    First off, regarding the grammar in its historical context, THe COmmonplace Second Amendment by Eugene Volokh The argument that the phrase “A well regulated Militia, being necessary to the security of a free State,” is intended to limit “the right to keep and bear arms” doesn’t hold water in context.

    Second, regarding the 2nd Amendment’s legal context, the Constitution explicitly references and incorporates English Common law.

    Why does “The right to trial by jury” include criminal cases but not include family law or equity cases? Because at english common law there was no right to a jury in “chancery court” where certain causes were heard. Why does Free Speech not cover threats or false speech? Because “The freedom of speech” did not include those things at common law.

    Likewise, the constitution did not invent “the right to bear arms” but was referencing a pre-existing common law right. The direct common law forbear of the phrase “The right to keep and bear arms” was the English Bill of Rights of 1689, which specifically provided that “Subjects which are Protestants may have Arms for their Defence”” Blackstone wrote regarding the right at English law

    The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

  25. says

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. ”

    (See more at: http://constitution.findlaw.com/amendment2/amendment.html#sthash.Ax4NRdDi.dpuf)

    Type 2A’s will always say that the “context” of the 2nd Amendment is all that matters, not the actual words. They will also always say that the first half of the first sentence is not germane to their right to haz teh gunz.

    The 2nd Amendment, if we are to believe the Type 2A’s, has a total of 27 words. According to the Type 2A’s, these 13 words (just shy of 1/2 the total number of words in the Amendment) are superfluous and gratuitous.

    The U.S. Constitution, together with the “Bill of Rights” has been used as an exemplar tor that type of document. It’s scope is enormous, but it uses just a few sentences (or less) for each of the ten articles in the bill of rights. Reading over the other 9 Articles in the BoR, I can see no other Amendment that wastes half of its scant word count on a meaningless phrase.

    Why the 2nd Amendment and ONLY the 2nd Amendment is this way is beyond my understanding. What is not beyond my understanding is the fact that the SCotUS has weighed in on the matter in the two cases involving D.C. and Chicago and made a ruling which greatly pleased the Type 2A’s. I am reminded that slaveholder and slave states were greatly pleased by the SCotUS decision in Dred Scott; likewise, segregationists were emboldened by Plessy v Feguson’s outcome. Both decisions are viewed today as immoral and illegitimate by the vast majority of those who have any sense of justice. Someday, if we don’t kill each other first, we might look back on the Type 2A’s embrace of the SCotUS most recent rulings of the 2nd Amendment and wonder how they could have gotten it so wrong. I just hope that another Civil War or 100 years of oppression isn’t necessary.

  26. dingojack says

    Oh noes! ‘The Yellow Peril’ ?
    Has Donnikens started channelling ‘pig-iron Bob’, now?
    Dingo

  27. kermit. says

    Don @30 – What’s the alternative, moving to the midst of the crowd? The coming dark times are unpredictable in detail; climate change interacting with mass extinctions, climate refugee migration, marine ecology collapse, corporatist police states, etc. make it difficult to predict where the safest place to be will be.
    .
    Ichthyic @29 America appears to be heading towards Feudalism.

    Yes, and many of the peasants have already openly declared their love and loyalty for their high lords. Half of the people now complaining about the police state (not us, I trust) will stop complaining as soon as a white man who says “Jesus” a lot moves into the White House.(“The usurper is dead; long live the King! We mean, president!”)

  28. caseloweraz says

    Since the woman who called the police was obviously cooperative, and the alleged criminal was absent, I’m unable to comprehend why stationing an armed officer or two in her house to await his return wasn’t done.

    (Or maybe it was done, but the police thought they needed more. Who is this criminal, the Terminator?) /snark

  29. Ben P says

    Why the 2nd Amendment and ONLY the 2nd Amendment is this way is beyond my understanding.

    That’s a false dichotomy.

    First, if you actually bother to read the article I posted, you’ll see that numerous other period constitutions were written with very similar gramatical construction, even if no other amendments in the bill of rights were written with precisely that construction.

    For example, Rhode Island’s 1842 constitution provides “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . ”

    The question is not whether the words have meaning, but whether they explain the purpose for the amendment, or are to be construed to limit “the right to keep and bear arms” that is addressed.

    Support is much stronger on the side saying that the proper construction is that the militia clause does not limit “the right to keep and bear arms,” any more than one would say the Rhode Island constitution referenced above limits freedom of speech to things which are “essential to the security of a free state.”

  30. says

    Ben P:

    I have read other articles. Some by Volokh., some by others–this guy’s work:

    http://www.english.illinois.edu/-people-/faculty/debaron/essays/guns.pdf

    for instance.

    I am not convinced, despite his certifiable genius credentials and his street cred with the Type 2A’s (all of the gunzloonz think he’s the neatest thing since sliced bread), that his take is any more “correct” than others that argue against him.

    You say that the Constitution is based on English Common Law, I won’t dispute that. The Constitution was also based on colonial common sense. The people that wrote it were doing so under some considerable pressure, considering that a lot of states were opposed to a Constitution that didn’t have the BoR appended to it.

    The notion that ONE of the 10 original Amendments (the BoR) was badly written (rather than poorly interpreted) to the extent that we are still arguing about those 13 words 225 years after they were made law strikes me as farcical. Obviously the people who want their Sacred 2nd to be inviolate, eternal and immutable are only too happy to say that the first part of the sentence is meaningless re: ownership of firearms. We, you and I, will likely never agree on that. Suffice to say that an “unlimited right” does not exist for any action or speech under the U.S. Constitution but the gunzloonz would sure be happy if that one they worship was untouchable.

    One of my favorite questions for gunzloonz who complain that they are LAGO’s (Law Abiding Gun Owners) who have an absolute RIGHT to own any and all weapons (except, of course, nuclear weapons, aircraft, warships, fully automatic weapons such as machine guns, anti-personnel bombs and the like–and why is that?) what they would do if the Supremes ruled that they DON’T have that right and the feds began the process of registering and regulating firearms. The answer is always some variation of the “…cold, dead hands!” nonsense from Chucky Heston. And when I tell them that they will then be CGO’s (Criminal Gun Owners) they tend to get cranky. Of course they will obey any law that they agree with, just not the bad laws with which they do not agree.

    You’re certainly entitled to your opinion and considering that your profession is the law, you may well know a lot more about case law re: the 2nd Amendment. It’s still an opinion, just like mine.

  31. Don Williams says

    1) Re Kermit at 32: “Don @30 – What’s the alternative, moving to the midst of the crowd? The coming dark times are unpredictable ”

    1) Well, the USA population density and fertile land per capita ratio is still better than that of many places,
    especially on the Eurasian continent.

    2) The places with low population density are very vulnerable to climate change (e.g, droughts).
    They are sparsely populated for a reason. Exception might be southern Canada if global warming
    continues.
    The oceans are one of the worst, most hostile environments on earth –far worst than the Sahara —
    so I don’t favor Pacific Islands (see Jared Diamond re Easter Island.)

    3) Argentina has many natural resources but its government and economy are screwed up beyond belief.

    4) Within the USA I would avoid the upper Midwest and Montana/Wyoming:
    http://www.backwoodshome.com/columns/pix/benson0201-5.gif

    Regarding the above map, the US Army major forts are in the Low Risk (Yellow) Areas.

    5) Fort Hood Texas is a tremendous killing machine — you can see hundreds of tanks and armored personnel carriers parked there. They could easily blow every pickup from El Paso to the Mississippi to hell.
    At first, Texas appears vulnerable to a Mexican Volkerwanderung but if you look at Mexican maps you will see
    a large desert and low population south of the Big Bend Area.

    The East Coast areas are heavily populated but fertile and with water. The Southeastern states have poverty which can be a problem or an advantage if you have greater relative wealth. Mel Tappan favored the Rogue River area of southern Oregon.

    6) While blue water sailing is highly dangerous, coastal sailing is the only fuelless method for moving large stores of food and supplies over great distances. So being inland but near a large river with access to the ocean would provide valuable flexibility , especially on the East Coast. (West Coast has few harbors.)

    It would be important to avoid the Caribbean islands however — they are grossly overpopulated at present and piracy is already a problem. And winds, currents, weather etc tightly circumscribe travel options at some times of the year.

  32. Ichthyic says

    Oh noes! ‘The Yellow Peril’ ?
    Has Donnikens started channelling ‘pig-iron Bob’, now?

    LOL

    indeed.

  33. Ichthyic says

    1) Well, the USA population density and fertile land per capita ratio is still better than that of many places,
    especially on the Eurasian continent.

    that’s a reason to live somewhere, is it?

    “Hitler made the trains run on time” (which of course, is a myth itself).

  34. Ichthyic says

    btw, that particular measure is actually much better here in NZ, fwiw, although hardly the reason I came here.

    I’m curious though… are there actually people that listen to what you say with a straight face, Don?

  35. dingojack says

    Ichthyic – Mussolini made the trains run on time. The German rail system was always rather efficient (particularly those to Treblinka, Auschwitz and etc.), but what else would one expect from Germans? *
    Dingo
    ——-
    * ‘Don’t mention the War. I just did, but I think I got away with it!’ :)

  36. Don Williams says

    Ichthyic at 39: “btw, that particular measure is actually much better here in NZ, fwiw, although hardly the reason I came here”

    1) Is that after you subtract the 31 square MILES of NZ farmland sold to China in the Crafar Farms deal?
    http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10851202

    And you were paid largely because the US Navy is still the most powerful in the world. If the US economy collapses,then that Navy shrinks and you are just as vulnerable as you were in WWII before Roosevelt sent those 100,000 marines and the Fleet to protect you.

    And ,yes, farmland per capita is one of the self-sufficiency in chaos criteria that survivalists look at.

    2) Dinjojack carefully evaded the point that the Poster to which I linked in post 30 was an AUSTRALIAN GOVERNMENT WWII poster. Maybe he could talk to some of his countrymen from that era and ask who was screaming about the “Yellow Peril” before the US fleet won at the battles of Midway and Coral Sea.

    http://www.dva.gov.au/commems_oawg/commemorations/education/Documents/workingtheweb_9.pdf

  37. dingojack says

    Donnikens – you really need to read some real history. Put down My First Big Book of C*nsp*r*cy Th**r**s * and get yourself an education. Particularly about breaking the Japanese Naval Codes.
    Dingo
    ——–
    * Remember no one speaking Italian, English, French or Greek can discuss them, Donnikens said. @@

    PS Surely all of WWII was about securing the North Virginia’s coal.

  38. dingojack says

    Oh and BTW Donnikens, I did address the poster’s contents. You’re just too ignorant to know it.
    Dingo

  39. Don Williams says

    Ichthyic at 39:

    1) In 1950 Asia’s population was only 1.4 Billion — today it is over 4.3 Billion. The idea that
    Australia (pop 20 million) and New Zealand (4.5 million) are viable retreats from a US collapse
    is hilarious. If the US economy hiccups, you guys are dead road kill.

    http://en.wikipedia.org/wiki/World_population#Population_growth_by_region

    2) Especially since New Zealand is stealing the common heritage of mankind — the ocean
    floor metal ore deposits — with a greed that would have shamed Cecil Rhodes.
    New Zealand’s 4.5 million people claim 4 million sq kms of ocean bed as EEZ whereas China’s 1.3 billion people are only given 0.88 million sq kms.

    http://en.wikipedia.org/wiki/Exclusive_economic_zone#Rankings_by_area

    White Man’s Burden, eh?

  40. Don Williams says

    Oh — and Australia’s 20 million people claim 8.5 million sq kms as EEZ. ha ha ha

    And the USA is supposed to DEFEND you greedy little buggers?

  41. slc1 says

    Re Don Williams @ #36

    One might not want to move to California, Oregon, or Washington State which are going to disappear into the Pacific when the big one (a 10 on the Richter scale) hits.

  42. Don Williams says

    SLC at 46: I know –my son just moved about 2 miles from the San Andreas fault. He ignores me when I point
    to the liquefaction maps. He babbles about “California building codes” at which point I crack up laughing.

  43. Don Williams says

    I admire your alma mater, Berkeley. It was clever to build the football stadium on the Hayward fault — so that at any time the opposing team’s fans might drop into a deep crevasse. ha ha ha you sick bastards.

  44. slc1 says

    Re Don Williams @ #47

    On the other hand, the 5.8 that occurred in central Virginia last year caused damage in Washington, D. C;. more then a 100 miles away and was felt in New York City and Boston. They’re still repairing damage to the Washington Monument and the National Cathedral. A 5.8 in California would hardly be noticed 100 miles away.

  45. Don Williams says

    PS to Ichtyric

    1) New Zealand doesn’t just face invasion from the north. In the coming decades she will be subject to a wave of hundreds of thousands of refugees as global warming causes rising sea levels which submerge the Polynesian islands lying only a few feet above the sea.

    http://jonbowermaster.com/blog/2012/03/thanks-to-rising-seas-kiribati-looks-for-new-homeland/

    But I’m sure that motorboat with the unreliable engine –known as the New Zealand Navy — will be able to cope.

    2) Send them to Australia? As Jared Diamond noted, Australia can’t feed more than 10 million of its 20 million people in the longer term. And, as recent massive droughts have shown, Australia herself is vulnerable to global warming and has had to import food.

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