No 3rd amendment violation in Henderson, NV case

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**Ouze**

So I like to follow up on old threads now and then, as is my wont.

Judge: Police takeover of Henderson homes not covered by Third Amendment
By CARRI GEER THEVENOT
LAS VEGAS REVIEW-JOURNAL

Members of a Henderson family may proceed with their civil rights case against police officers who took over their homes without warrants in 2011, but a federal judge has thrown out the family’s unusual Third Amendment claim.

Michael and Linda Mitchell and their adult son, Anthony, filed the lawsuit in 2013 against Henderson and North Las Vegas police. The case included a seldom-raised claim that police violated the Third Amendment, which places restrictions on the quartering of soldiers in private homes.

“While we are sorry that we will not be able to have a jury decide whether the Mitchell family’s Third Amendment rights were violated, the judge’s order was well-reasoned, and we respect the court’s decision,” said attorney Frank Cofer III, who represents the Mitchells. “There are plenty of other constitutional rights at issue, and the case is proceeding on these claims.”

Henderson City Attorney Josh Reid called the Third Amendment claim a “red herring” and said he believed the plaintiffs’ lawyers raised the novel issue to make news.

“We’re pleased that the judge limited the scope of the case, and we’re going to continue to litigate to defend our police officers,” Reid said.

Henderson and North Las Vegas police arrived outside the Mitchells’ homes on Eveningside Avenue on July 10, 2011, in response to a domestic violence call involving a neighbor. The homes are near Gibson Road and Horizon Ridge Parkway.

Police believed the neighbor had barricaded himself and a child in his home, and a SWAT team arrived at the scene.

According to the Mitchells’ lawsuit, a Henderson police officer asked Anthony Mitchell to allow police to use his house to gain a “tactical advantage” over the neighbor, but Anthony Mitchell rejected the request.

The lawsuit claims police later knocked down Anthony Mitchell’s door with a metal ram and entered his house without either a warrant or his permission. A Henderson police officer then arrested Anthony Mitchell, according to the lawsuit, and multiple officers searched his home.

Meanwhile, the lawsuit alleges, police entered his parents’ home across the street without either a warrant or permission and searched it.

Michael Mitchell also was arrested, according to the lawsuit, which claims both he and his son spent at least nine hours at the Henderson Detention Center on charges of obstructing an officer before they were released on bond.

The lawsuit claims police officers should be considered soldiers under the Third Amendment and that their occupancy of a house for less than 24 hours constitutes quartering. In this case, the Mitchells claim the occupancy lasted about nine hours.

“The Third Amendment was passed in response to several quartering acts imposed on the American colonists by Parliament; these acts functioned as a pseudo-tax to support the British military,” U.S. District Judge Andrew Gordon wrote in his Feb. 2 order in the Mitchell case.

According to the 39-page decision, Third Amendment case law is sparse, but modern interpretations have described it as protecting a fundamental right to privacy.

“I hold that a municipal police officer is not a soldier for purposes of the Third Amendment,” Gordon wrote. “This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment.”

The ruling allows the Mitchells to proceed with their claims that police violated both the Fourth Amendment, which prohibits unreasonable searches and seizures, and the First Amendment, which protects free speech.

According to the lawsuit, police retaliated against the Mitchells for engaging in protected speech activities, which included photographing police conduct from inside their homes. Anthony Mitchell also made a gesture with his middle finger to one of the officers.

“The defendants do not dispute that their alleged conduct in pointing firearms at the plaintiffs and entering their homes without a warrant would chill a person of ordinary firmness from ceasing to engage in protected activity,” Gordon wrote.

Probably the right call IMO, though I thought the 3rd amendment argument had at least some merit.

**Sgt_Scruffy**

Ouze wrote:
So I like to follow up on old threads now and then, as is my wont.

Judge: Police takeover of Henderson homes not covered by Third Amendment
By CARRI GEER THEVENOT
LAS VEGAS REVIEW-JOURNAL

Members of a Henderson family may proceed with their civil rights case against police officers who took over their homes without warrants in 2011, but a federal judge has thrown out the family’s unusual Third Amendment claim.

Michael and Linda Mitchell and their adult son, Anthony, filed the lawsuit in 2013 against Henderson and North Las Vegas police. The case included a seldom-raised claim that police violated the Third Amendment, which places restrictions on the quartering of soldiers in private homes.

“While we are sorry that we will not be able to have a jury decide whether the Mitchell family’s Third Amendment rights were violated, the judge’s order was well-reasoned, and we respect the court’s decision,” said attorney Frank Cofer III, who represents the Mitchells. “There are plenty of other constitutional rights at issue, and the case is proceeding on these claims.”

Henderson City Attorney Josh Reid called the Third Amendment claim a “red herring” and said he believed the plaintiffs’ lawyers raised the novel issue to make news.

“We’re pleased that the judge limited the scope of the case, and we’re going to continue to litigate to defend our police officers,” Reid said.

Henderson and North Las Vegas police arrived outside the Mitchells’ homes on Eveningside Avenue on July 10, 2011, in response to a domestic violence call involving a neighbor. The homes are near Gibson Road and Horizon Ridge Parkway.

Police believed the neighbor had barricaded himself and a child in his home, and a SWAT team arrived at the scene.

According to the Mitchells’ lawsuit, a Henderson police officer asked Anthony Mitchell to allow police to use his house to gain a “tactical advantage” over the neighbor, but Anthony Mitchell rejected the request.

The lawsuit claims police later knocked down Anthony Mitchell’s door with a metal ram and entered his house without either a warrant or his permission. A Henderson police officer then arrested Anthony Mitchell, according to the lawsuit, and multiple officers searched his home.

Meanwhile, the lawsuit alleges, police entered his parents’ home across the street without either a warrant or permission and searched it.

Michael Mitchell also was arrested, according to the lawsuit, which claims both he and his son spent at least nine hours at the Henderson Detention Center on charges of obstructing an officer before they were released on bond.

The lawsuit claims police officers should be considered soldiers under the Third Amendment and that their occupancy of a house for less than 24 hours constitutes quartering. In this case, the Mitchells claim the occupancy lasted about nine hours.

“The Third Amendment was passed in response to several quartering acts imposed on the American colonists by Parliament; these acts functioned as a pseudo-tax to support the British military,” U.S. District Judge Andrew Gordon wrote in his Feb. 2 order in the Mitchell case.

According to the 39-page decision, Third Amendment case law is sparse, but modern interpretations have described it as protecting a fundamental right to privacy.

“I hold that a municipal police officer is not a soldier for purposes of the Third Amendment,” Gordon wrote. “This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment.”

The ruling allows the Mitchells to proceed with their claims that police violated both the Fourth Amendment, which prohibits unreasonable searches and seizures, and the First Amendment, which protects free speech.

According to the lawsuit, police retaliated against the Mitchells for engaging in protected speech activities, which included photographing police conduct from inside their homes. Anthony Mitchell also made a gesture with his middle finger to one of the officers.

“The defendants do not dispute that their alleged conduct in pointing firearms at the plaintiffs and entering their homes without a warrant would chill a person of ordinary firmness from ceasing to engage in protected activity,” Gordon wrote.

Probably the right call IMO, though I thought the 3rd amendment argument had at least some merit.

The police should burn on unwarranted search and seizure, as well as violation of free speech grounds. I'd like to see them burn on third amendment, but as long as head's roll, I will hold my tongue on the third amendment issue.

**Peregrine**

Ouze wrote:
Probably the right call IMO, though I thought the 3rd amendment argument had at least some merit.

What merit would that be? The police are clearly not soldiers, and the 3rd amendment doesn't establish any kind of broader rights beyond quartering of soldiers.

(Needless to say the police are still wrong even if they aren't guilty of that particular crime, and should be sent to prison just like any other criminals who break into houses and remove the owners by force.)

**Ouze**

At the time the document was drafted, the Redcoats - which the amendment was in response to - performed at least some law enforcement duties, did they not?

Perhaps I am mistaken.

**Sgt_Scruffy**

Hasn't jurisprudence found the third amendment to be another pillar of the 'right to privacy?'

**Peregrine**

Ouze wrote:
At the time the document was drafted, the Redcoats - which the amendment was in response to - performed at least some law enforcement duties, did they not?

Sure, and the national guard (part of the military and clearly soldiers) performs at least some law enforcement duties now. There's still a difference between civilian law enforcement and soldiers that just happen to be used in a law enforcement role. And this difference existed when the amendment was written.

Automatically Appended Next Post:

Sgt_Scruffy wrote:
Hasn't jurisprudence found the third amendment to be another pillar of the 'right to privacy?'

A quick look at wikipedia says no. No significant supreme court cases have ever been based on it, it's rarely cited at all, and even the vague "it's evidence they wanted a right to privacy" argument gets more obvious support from other parts of the constitution. It's really just an obsolete law that dealt with an issue that is no longer relevant in modern society.

**LordofHats**

Indeed, the Third Amendment, is probably the most maligned, simply because it is by far the most situational and responsive of the Amendments. At the time, the idea of the Standing Army was not an accepted one in America. The Founders believed they didn't need one and that militia could defend the country. This of course has the immediate consequence that when you raise an army on the spot, you lack all the mechanisms for its upkeep, one of this is where do you house the soldiers? The Founders wanted an assurance that soldiers couldn't be quartered in people's homes by force which was a common practice when the British Army was present during the Revolution.

**djones520**

I was considering this amendment not to long ago, wondering when it was last brought up in court or the like. I guess I have my answer.

**Jihadin**

Glad the Judge struck it down. Cannot imagine if it was upheld because that would reaffirm so many beliefs that the LEO is becoming militarized

**Dreadclaw69**

While I can see why the claims in relation to the Third were struck down I can still see that this lawsuit has legs. I hope the family succeed in their case.

**Shadow Captain Edithae**

Constitutional issues aside, am I understanding the scenario?

There was a possible hostage situation with someone barricaded in a house.
The Police wanted to use a neighbors home as some sort of base of operations or a vantage point.
The neighbor refuses, and the Police PUNISH him (an innocent person) by ramming down his door, arresting him, searching his home and searching his parents home.

WTF???

**Haight**

Agree with Gordon. Not a third amendment case. 3rd is basically an anachronism at this point, and the parallels between police and soldiers are too sparse to have one equated with the other (at least legally speaking. You can personally disagree, but you'll never get a court to say "Law Enforcement = Military Soldier / Personnel" If you did, the SCOTUS would annihilate that from orbit because it opens up a lot in problems). Yes there are points of contact and similarity. I have points of contact and similarity with a mouse, genetically. Doesn't mean i'm a mouse or that a police officer and a soldier are the same thing.

The 3rd is one of those things that time has pretty much evolved out of relevancy in this modern day. That's not to say it couldn't become relevant again, but right now, it's a throwback to different days with different problems

However it is a text book 4th amendment case. As in, there might be a new bar set to show as exemplar of "This is how you completely violate the feth out of someone's 4th amendment rights". I am normally a staunch defender of law enforcement, but these guys acted improperly if hte information presented is accurate.

**kronk**

Haight wrote:

However it is a text book 4th amendment case. As in, there might be a new bar set to show as exemplar of "This is how you completely violate the feth out of someone's 4th amendment rights". I am normally a staunch defender of law enforcement, but these guys acted improperly if hte information presented is accurate.

Agreed. While I'm not a litigious man, I do hope this family gets their payday.