Henderson Incident Raises 3rd Amendment Issue
Bob Beers, Las Vegas councilman and Nevada advisor to U.S. Civil Rights
Gloria Browne-Marshall, lawner and assistant professor at John Jay College of Crimnal Justice
Terrence Dwyer, former New York state police officer, attorney in area of police liability
BY JOAN WHITELY -- Law enforcement officers routinely enter the homes of civilians in the pursuit of suspected criminals or when they have reason to believe a crime is occurring.
But can police enter the homes of bystanders, who are not suspects, either to keep them from distracting officers or to use their location as an observation post?
That's what members of a Henderson family claim in a civil-rights lawsuitthey have filed in federal court.
Anthony Mitchell and his parents both live on the same street in Henderson. Both were at their homes on the day in July 2011 when police came to investigate a neighbor who had been reported for domestic violence.
Neither Mitchell was a suspect. Both were taking photos and making phone calls in sight of the police. Both, according to police reports, were ignoring police orders to evacuate, or at least stay inside their homes.
When Anthony Mitchell denied officers entry to his home, they rammed open the door and then arrested him for obstructing police. “They smashed in his front door, ordered him to lie on the ground. They gave him conflicting orders,” Frank Cofer, the Mitchells’ lawyer says. “And then they shot him with pepper balls.”
Michael Mitchell, the father, claims officers told him he could help "talk down" the suspect if he joined police at their command post down the street. So he went to help. There, the police did not phone the suspect, but arrested Michael Mitchell for obstructing police when he tried to leave.
According Gloria Browne-Marshall, an attorney who’s on the faculty at the John Jay College of Criminal Justice, the allegations that police illegally searched and seized the Mitchells’ homes may hinge on police intent. The law, she noted, does not compel bystanders to be Good Samaritans by assisting police.
The Mitchells, father and son, were both jailed for most of that day, though Henderson later dismissed the charges without prejudice. Likewise, the Las Vegas Review-Journal reported, Henderson dismissed the charge against the neighbor reported for domestic violence, though that case has been sealed.
When Michael and Linda Mitchell returned home hours later, they found police had entered and searched it. The Mitchells also noted some food eaten, water taken from a dispenser, food items from the refrigerator placed on the floor, and the fridge door standing open. For that, the Mitchells' lawyer, Frank Cofer, has included a claim that police officers violated the couple's Third Amendment right to not be forced, without consent, to quarter "soldiers" in their home.
The lawsuit asserts that in the modern era of increasing militarization of police, the officers' use of the Mitchells' amenities constitutes quartering.
According to Browne-Marshall and Terrence Dwyer, another New York attorney, the Third Amendment is rarely litigated, but does protect the privacy and sanctity of one’s home.
Dwyer, who used to be a New York state police officer, advises individuals to “not litigate on the street” by arguing with officers about civil rights. Rather, he says compile careful notes on the incident, and then contact a lawyer who specializes in civil rights. Dwyer often represents police officers in disciplinary matters.
Las Vegas councilman Bob Beers wants the U.S. Civil Rights Commission to review the Henderson incident. Beers said he’s on the Nevada advisory committee to the commission. The Nevada advisors will discuss Mitchell case at their August meeting.
The SWAT team who handled the 2011 incident included officers from the police departments of Henderson and North Las Vegas. The Mitchells have sued both cities, the two police chiefs at the time, and the individual officers involved.
Browne-Marshall also said she is observing a trend in civil-rights lawsuits that indicate police officers in small to mid-size cities may need better training and supervision.