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A lawsuit has been filed against the Henderson, Nev., police department over an incident in which its officers allegedly demanded to use a private home as a lookout for an investigation, then arrested the resident when he refused.

It raises the unusual claim that the police violated the Third Amendment, which prohibits the “quartering of soldiers” in private homes in peacetime without the owner’s consent.

“Whatever the ultimate outcome of this case, it is clear that lawyers and legal scholars should start taking the Third Amendment more seriously,” commented legal scholar Eugene Volohk. “Contrary to conventional wisdom, there is in fact a history of violations of the Third Amendment, such as the military’s brutal treatment of Alaska’s Aleutian Islanders during World War II.”

In the new case, filed just days ago, plaintiff Anthony Mitchell is suing Henderson, North Las Vegas and a long list of police officials and officers including Jutta Chambers, Garret Poiner, Ronald Feola, Ramona Walls, Angela Walker, Joseph Chronister and Christopher Worley.

Joining as plaintiffs are his parents, Michael and Linda Mitchell, who live nearby and also allegedly were physically rousted by police from their home.

They allege on July 20, 2011, Henderson officers responded to a domestic violence call at a neighbor’s residence.

According to the complaint, “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.”

The complaint then explains that members of the police departments “conspired among themselves to force Anthony Mitchell out of his residence and to occupy his home for their own use.”

According to a report in Court News, “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.’”

The lawsuit explains at least five police officers banged on Anthony Mitchell’s front door and demanded he leave, then broke down the door and pointed their guns at him.

“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.”

His parents were lured out of their home and arrested, the lawsuit alleges.

According to the complaint, “Plaintiffs Anthony Mitchell and Michael Mitchell were subsequently transported to Henderson Detention Center and were booked on charges of Obstructing an Officer. Both Anthony and Michael Mitchell were detained for at least nine hours and were required to pay a bond to secure their release from custody.

“A criminal complaint was subsequently filed by the Henderson city attorney’s office … charging them with counts of Obstructing an Officer. All criminal charges against plaintiffs were ultimately dismissed with prejudice.”

The cities are named because they “developed and maintained policies and/or customs exhibiting deliberate indifference to the constitutional rights of United States citizens, which caused the violations of plaintiff’s rights.”

The legal action alleges assault, battery, false arrest and imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, conspiracy, defamation, abuse, malicious prosecution, and negligence, and it claims the plaintiffs are due compensation for each offense.

Volokh noted that one question that would have to be resolved for damages to be due under the Third Amendment, one of several standards under which claims are being made, is whether “police … qualify as ‘solders.’”

“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.

“In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as ‘soldiers’ for Third Amendment purposes.”

The claim also seeks damages under the Fourth and 14th Amendments and under state law.

Police could not be reached over the holiday period for a comment.

 

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