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April 26, 2015

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Constitutional scholars take notice of lawsuit against Henderson Police citing rare Third Amendment complaint


Mount Vernon Ladies Association, Mark Finkenstaedt / AP

This undated handout photo provided by George Washington’s Mount Vernon Estate & Gardens, shows George Washington’s annotated copy of the Constitution and Bill of Rights.

A lawsuit accusing Henderson Police of violating a family’s Third Amendment rights is rooted in one of the grievances Colonial Americans harbored against the redcoats.

And while the case, filed last week, has piqued the interest of legal scholars nationwide, a constitutional law professor at UNLV isn’t sure the litigation will play out in favor of the Mitchell family of Henderson.

Anthony Mitchell and his parents, Michael and Linda Mitchell, are suing for a series of events in 2011 that began when Henderson Police ordered Anthony Mitchell to leave his home so that police could use the residence to gain a "tactical advantage" in a suspected domestic violence case nearby.

The Mitchells sued on grounds the police violated their Third Amendment rights. If you’re having trouble remembering what the amendment says, you’re not alone.

“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.”

It was a response to British soldiers setting up residence in colonists' homes for indefinite periods of time during the Revolutionary War.

Thomas McAffee, a constitutional law professor at UNLV’s William S. Boyd School of Law, said he’s not sure about a legal argument that puts troops in the same legal category as a law enforcement officer.

"It is fairly hard to imagine the court taking completely serious that the idea of what's going on here is actually a violation of the Third Amendment. I guess it's conceivable," McAffee said.

The amendment is often thought to be archaic.

An article in the American Bar Association Journal, coincidentally published the day the complaint was filed, argues the amendment could be nicknamed the "runt piglet" of the Bill of Rights, since it is "short, overlooked, sometimes the butt of jokes."

The Mitchells' attorney, Frank Cofer, says he thinks the law has rarely seen litigation because it works.

The amendment’s language specifying “in time of peace” could help or hurt the case, McAffee said.

On one hand, the nation isn’t at war, so clearly no quartering is allowed; on the other, the peacetime requirement is another indicator the law was only intended to apply to the military.

Deciding what is and isn't quartering poses yet another hurdle, McAffee said.

During the Revolutionary War, quartered troops could loaf about a private home for weeks, maybe months. One day might be tough to argue.

Cofer said when he first saw the case, the facts struck him as perfectly satisfying quartering requirements: Police used the Mitchells' homes to their liking and took advantage of its resources.

Crisis in the neighborhood

The Mitchells' complaint tells a harrowing tale of how officers commandeered their homes in the 300 block of Eveningside Avenue, traumatizing everyone in the police’s path, including the Mitchell family dog.

Police reports portrayed an armed family suspected of relaying the positions of North Las Vegas and Henderson SWAT teams to a neighbor whom police suspected of a crime and who had barricaded himself inside his home with a 4-week-old baby.

According to the federal complaint, Henderson Police called Anthony Mitchell the morning of July 10, 2011, and told him to leave his home as they investigated a suspected domestic violence case nearby.

Anthony Mitchell said he didn’t want to become involved and didn’t want police coming inside the house.

Undeterred, police devised a plan, detailed in the North Las Vegas Police report, to oust Anthony Mitchell without a warrant. The report states the plan was necessary to ensure officer safety.

Police banged on Anthony Mitchell 's door just before noon and demand he open up, according to the complaint.

Annoyed, Anthony Mitchell called his mother, Linda Mitchell. Anthony's parents lived next door to him.

Police used a metal ram to bust open the door, aimed their weapons at Anthony Mitchell and yelled at him to get on the floor while shouting obscenities.

Panicked, Anthony Mitchell dropped his phone — his mother still on the line.

When police began shouting conflicting commands, Anthony Mitchell put his hands over his face and stayed still on the floor, unsure of what to do, according to the complaint.

An officer then shot pepper ball rounds at Anthony Mitchell, according to the complaint. Pepper balls are similar to paintballs, but instead of releasing paint, they release pepper spray.

Officers also shot Anthony Mitchell’s dog, Sam, who was cowering in the corner. Panicked and hurt, the dog howled, fled the home, and spent the majority of the day in the more than 100-degree weather without food or water, the complaint maintains.

At this point his mother, who heard the swearing and shooting through the phone, feared Anthony Mitchell was mortally wounded by gunfire.

His mother screamed his name and an officer hung up the phone. Officers then dug their knees into Anthony Mitchell’s back, handcuffed him, dragged him outside, slammed him up against his home’s stucco wall and arrested him for obstructing an officer, the complaint contends.

The complaint continued:

While police were dealing with Anthony, his father, Michael Mitchell, was asked to go to a command center police had set up in the neighborhood so that he could help coax the suspected neighbor out of his home.

Once Michael Mitchell got to the command center, he was told the neighbor “was not taking any calls” and that Michael couldn’t return to his home, according to the complaint.

When Michael Mitchell attempted to leave the neighborhood, he was also arrested for obstructing an officer.

Around 1:45 p.m., officers dragged Linda Mitchell out of her home after she told them they couldn’t enter without a warrant.

Officers then made Linda Mitchell, who is frail, walk quickly to the command center, even though she begged to be released or at least be allowed to walk at a slower pace, according to the complaint.

Having driven the Mitchells out of two homes, police were said to have rummaged through their belongings and moved furniture.

When Linda Mitchell did eventually return, she found mustard and mayonnaise on the floor, her refrigerator and kitchen cabinets ajar and her water dispenser emptier than it had been.

The police reports differ from the complaint when it comes to basic facts, such as how the Mitchells were contacted and who was where at what time. The police reports don't indicate a need for a "tactical advantage" and focus instead on neighborhood safety.

According to Henderson Police reports, when officers entered Anthony Mitchell’s home, he was wearing a ballistics vest and loading ammunition into a rifle magazine.

North Las Vegas Police reports say Anthony Mitchell was wearing a ballistics vest while talking on the phone, but it wasn't until after he'd been removed that police found a partially loaded magazine, several unsecured guns and loose rounds.

The lawsuit alleges the obstruction charges against the Mitchells were part of an attempt to intimidate the family and cover up police wrongdoing. Anthony and Michael Mitchell both had to be bailed out of jail and both cases were dismissed with prejudice, meaning the cases were so without merit they couldn’t be cured by additional evidence, Cofer said.

The domestic violence case police were pursuing against the neighbor also was dismissed with prejudice.

In addition to Henderson, the complaint names North Las Vegas, North Las Vegas Police Chief Joseph Chronister, several Henderson police officers and former Henderson Police Chief Jutta Chambers, who retired in February 2012 after a video surfaced of a Henderson police officer kicking a restrained driver in the head multiple times during an October 2010 traffic stop.

The case also alleges that the Mitchells’ Fourth and 14th Amendment rights were violated. The Fourth Amendment guards against unreasonable searches and seizures; the 14th Amendment prohibits the state from depriving “any person of life, liberty, or property, without due process of law.”

"It was just an extremely humiliating experience," Cofer said. "They still feel humiliated and insulted and violated over it."

Keith Paul, a spokesman for the Henderson Police Department, said in an email the city could not comment on the case, due to the pending litigation.

In the case, filed in U.S. District Court in Las Vegas, the Mitchells seek unspecified compensatory and punitive damages. The Mitchells also seek a jury trial.

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  1. HPD has a responsibility to ensure everyone's safety. Questions remain as to if HPD tactics were that of peace officers or a paramilitary squad on steroids.

    Why no warrant?

    After all of the police shootings and beatings in Clark County creating an atmosphere of fear and distrust...who could blame any citizen for trying to protect their family and friends?

    Let the case go to trial and let a jury of Mitchells' peers decide...

  2. Funny how some people are so feeble minded and gullible in "police doing their job."

    So one guy is holding a gun against an innocent person in one house - and the police decide to hold a gun against an innocent person in another house and this is "doing their job?"

    How twisted is that logic?

    Are people really so invested in the "good of government" that you ignore the the most basic and fundamental laws to protect against such behavior?

    Do people not truly understand that we have laws on the books PRECISELY!! to prevent this kind of Gov't conduct?

    If Gov't "doing their job" will always trump these protections - then what is the point of having those protections in the first place? Protection from what!!

    Christ! Put some thought into that process!

  3. If a civilian did this, it would be prosecuted as a home invasion. When police do this, it's doing their job?

    These guys sound drunk on power. Police are not above the law. In fact they should be held to the highest standard because they are supposed to be an example. When the police department does this they lose their credibility and law abiding citizens lose trust and start to fear them.

  4. This isn't just about "having your door open."

    They need a little more than you opening the door and having cookies ready for them. That is more fantasy/hollywood world.

    If they burst into this innocent person's house with guns drawn - how is this any different than the guy who is holding a child hostage with a gun to his head? The conduct is one and the same. It makes no difference.

    Here, officers breaking into a home and holding a man hostage only creates another hostage situation.

    We have to put things in perspective - How is it that the Mitchells have the burden in this case? Officers claim they want to save a life - so they put the life of an innocent person in danger?

    "I want to save a life, so I'm going to put your life at risk to save the life of another"?

    It is self-defeating logic.

    A person has NO affirmative duty to come to the rescue. Why should THEIR life be put at risk?

    When you set your standards so low that you allow Gov't bureaucrats absolute immunity - there will be abuse. This is why we strive for a representative democracy - because we know that absolute power corrupts absolutely.

    We know the history of giving Gov't too much power over her citizens. This is why we have laws prohibiting certain gov't conduct. To prevent such abuses.

  5. I buy the "innocent person" BS, because all charges were dropped WITH PREJUDICE. They don't have any obligation to prove their "innocence". Who cares if they are "malcontents"? Is that illegal?

    Yes, if he was wearing a vest, or had "unsecured" guns -- that's suspicious, creepy, and a bunch of other things, but also not illegal.

    The whole police report smells bad.

  6. Just get a warrant. This isn't nazi germany. With the patriot act you can get a warrant for almost anything. Keep a copy of the bill of rights around & have video, audio tape going so they respect your rights.

  7. Sounds like the Henderson police should be charged with home invasion, assault, and slander. What a load of BS. I hope this family wins their case. But more so, I hope that officers are held liable for their actions. Of course this being two years later, they're probably on paid administrative leave for shooting an unharmed civilian, tazering them to death, or something cute like that.

  8. Interesting. As a LEO, I once asked a professor doing an evidence seminar: What is the authority to secure a crime scene? He had NO ANSWER. But, he was curious why I asked since a very experienced LEO had recently asked the same thing. I wondered because I wanted to consider applying whatever precedent allowed local cops to BAR YOU FROM YOUR HOME (after a crime was committed there) and perhaps apply that precedent to federal seizures--warrant less seizures at the time. As an aside: many people don't seem to realize that they can file a claim against the city/ county/ whoever after law enforcement executes a warrant and damages property. Sure, sometimes property "must be" damaged--but you have a RIGHT TO RECOVER the cost.

  9. louise 5:12: Might we consider that the "problem" might be attributable to ONE poorly informed police Captain?

  10. Paul and company: there are precedents for "imminent" harm--police CAN AND SHOULD COMMANDEER your vehicle to pursue an escaping .... There MIGHT be some interpretations that the "suspect" next door was a threat to the safety of the entire neighborhood--perhaps had an IED.

  11. Perhaps the police reports which were released say the Mitchells were arming themselves and wearing helmets, tactical vests and loading guns as Nocal claims (at 9:31 a.m.). Two questions:\

    1) Once the people on the scene realized that they were involved in a real FUBAR operation, it is not all that difficult to pencil-whip a "report" saying anything you wish. And people who would create such a situation are quite capable of doing just that.

    2) So what? Cite any law that the Mitchells could be said to have violated. Indeed, there is an argument that grabbing vests and loading guns is a very reasonable and proper response to a home invasion by armed thugs.

  12. Paul Rudd @7:56 a.m., asked: "Why no warrant?"

    Well, from what I understand, many officers seem to be under the impression that refusing consent and making them to go through the bother of getting a warrant meets the threshold for misdemeanor "obstructing a police officer". Given how even momentarily "delaying" an officer is prohibited under the statute it's no surprise that the Mitchells ended up charged with it.

    The Sun should have posted the police reports with this story, but more importantly: that statute gives police wide discretion to arrest for contempt of cop and the Sun should investigate how it is being used. How often are people arrested for obstructing alone? How often are obstructing-only arrests accompanied by the use of force? Are those types of arrests more likely to lead to citizen complaints?

  13. How dare you people have negative remarks toward the finest police department in the state , no , in the country. Everybody knows how perfect the Henderson Police Department is, I can't believe that people would take the victims story over the police report, I mean c'mon you should know the report is only going to be truth and only the facts. In all my dealings with the HPD they have always been professional and courteous ,,,,,, haaaaaaaaa , just kidding. Gotcha.