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

A case from Nevada provides another example of police abuse, and a possible claim arising under the long-forgotten Third Amendment.

Doug Mataconis · · 64 comments

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