Your Home Is The Cops' Tactical Base -- Whether You Like It Or Not
First Amendment bulldog, lawyer Marc J. Randazza, posts about a rather amazing case (and not in a good way) out of Nevada. Due to a domestic violence investigation at a man's neighbors', the Henderson cops wanted a man to let them use his house to surveil the subject of of their investigation, saying it would give them a "tactical advantage."
Well, the man, Anthony Mitchell, said he didn't want that happening, and explained that he didn't intend to leave his house or to allow the police to occupy it.
And then, as Randazza says, "it gets really hinky." From the complaint:
"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.'" (Complaint at Para. 19)
Randazza writes:
So what happened next? Allegedly the cops came to the house, beat on the door, and when Mitchell did not open up, they bashed the door down with a battering ram. They aimed their guns at him, screamed at him, shot him with "pepperball" rounds, searched the house, moved his furniture, and set up a lookout point in the house, and restrained him.They then went to his father's house, a few doors away, and made a similar "request." They brought him to the Henderson police station, and when he tried to leave, they arrested him. (Complaint at Para. 39). They then intimidated his wife, Linda, into opening the door to the house and did just as they damn well pleased there as well. (Complaint at Paras 42-44)
The cops took Mitchell and his father to jail and booked them for obstructing an officer. They spent 9 hours in lockup. (complaint at Para 47). The Mitchells seek damages for violations of the Third and Fourth Amendments,assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress. How exciting that there might be a Third Amendment claim!
If the allegations are true, then this is a horrendous case that should result in a hell of a lot worse than mere civil damages. However, I think that the defamation count is a really bad idea. The rest of the complaint is so strong that throwing that in there seems gratuitous, and doesn't get the plaintiff much mileage. However, given the strength of Nevada's new Anti-SLAPP statute, it could expose the Plaintiff to (at the least) some serious procedural hassles.
More on the potential for Third Amendment grounds at the bottom of Randazza's post.
For those of you a little rusty on Amendment number three:
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.








The only difference between cops like this and home invasion robbers is the uniform.
fatfred at July 5, 2013 1:43 AM
They're lucky this guy was unprepared, and that they were not in Texas, which allows defense of a home with deadly force regardless of who it is holding the battering ram.
To me, the most important thing about this is that now, the Henderson police have abandoned the public as a source of cooperative operation. Beat the dog, he's not watching out for you any more.
Radwaste at July 5, 2013 2:00 AM
This level of disregard for the law means that the corruption probably starts with the chief of police downward, and probably goes sideways into the prosecutors office.
This is a case where the state needs to come in and look at the whole local system.
Jim P. at July 5, 2013 5:58 AM
I agree with Jim; at a minimum this calls for a state takeover of the police department, and an investigation by whatever Nevada's equivalent of the FBI is. There's also an open-and-shut civil rights case, if available evidence actually supports the complaint.
And yes, for the interesting-trivia aspect: it is my understanding that Third Amendment cases are extremely rare. I imagine it will hinge on whether a police officer is considered a "soldier" for this purpose.
Cousin Dave at July 5, 2013 6:19 AM
I'm glad you posted this, Amy. I posted a link about it on your blog yesterday, but this definitely needed to be a blog entry.
Third Amendment violations are rare. In fact, the Third Amendment is virtually obsolete, according to a lawyer I spoke with. During the colonial period, British soldiers had the endearing habit of picking the choicest homes in any neighborhood, moving in without the owner's consent, taking the best beds, were fed, etc.
Hence the Third Amendment was created because we decided we didn't like the government doing this to us.
Those cops don't just need to be fired, and the city does not just need to be paying damages. Those cops belong in prison.
Patrick at July 5, 2013 6:21 AM
Government at all levels may be contemptuous of the First, Second, Third and Fourth Amendments but we know they love the Fifth!
DrMaturin at July 5, 2013 7:11 AM
The only difference between cops like this and home invasion robbers is the uniform.
Well, no. If you shoot and kill robbers, you'll be lauded. If you shoot the cops...not so much.
Patrick posted this yesterday, and my comment was prison was too good for these knuckleheads. Tar, feathers, some assembly required.
Also: rail, as in run them out of town on one.
I R A Darth Aggie at July 5, 2013 8:46 AM
So here's their rationale: "Due to a domestic violence investigation at a man's neighbors', the Henderson cops wanted a man to let them use his use to surveil the subject of their investigation..."
And here's their action: "Allegedly the cops came to the house, beat on the door, and when Mitchell did not open up, they bashed the door down with a battering ram. They aimed their guns at him, screamed at him, shot him with "pepperball" rounds, searched the house, moved his furniture..."
Did these pigs ever stop to worry about alerting the subject of their investigation? If I was a criminal up to no good, and the law suddenly barged in on my next door neighbor like Seal Team 6 hunting for bin Laden, I'd be inclined to lay low for a while.
Martin at July 5, 2013 9:36 AM
I heard an interview with the author of a book (I believe this one A Charter of negative Liberties http://bookstore.westbowpress.com/Products/SKU-000587044/A-Charter-of-Negative-Liberties.aspx) yesterday and it was talking about why the constitution and amendments are written the way they are. It was prerecorded but was fairly recent. He sounded like a very intelligent guy with quite a bit of insight. I don't know how much the book deals with individual cases, the most recent one they talked about that I heard was Obamacare penalty issue & scotus's ruling.
The Former Banker at July 5, 2013 10:12 AM
During the colonial period, British soldiers had the endearing habit of picking the choicest homes in any neighborhood, moving in without the owner's consent, taking the best beds, were fed, etc.
_______________________
And because of all that, as a literary critic pointed out, in the folktale "Stone Stoup," the villagers weren't necessarily being "greedy" in hiding all their food - just practical, given the reputation of soldiers.
lenona at July 5, 2013 10:38 AM
Not like regular soldiers...soldiers pay the owners for use and (likely) damage.
These are our heroes and protectors running amok.
The troubling part that I'm seeing is our police forces turning more and more military while our military forces turn more and more into police.
Red at July 5, 2013 11:33 AM
I have to agree with Martin on any use of the place as a spying post is completely gone now.
As to they aren't soldiers in a ime of war: I seem to remember several presidents declaring war on drugs, poverty, crime and possibly domestic violence but I'm not sure on the last two. If so war was declared with police being the 'soldiers' of it.
Joe J at July 5, 2013 12:05 PM
Not only is it true that the actions on the part of the cops alerted the suspect next door; but, there is a whole lot of irony in that the cops were looking for domestic violence - isn't "domestic violence" sort of what they did themselves?
Charles at July 5, 2013 5:37 PM
What gets me so angry about all this is the mindset of the cops. What must they have been thinking?
"How DARE this man tell us we have NO RIGHT to use his home as we see fit? Why, we're the POLICE and we have the right to do any damned thing we PLEASE! We'll show that asshole that he has to do what WE SAY and that we have more right to his home than he does!"
Patrick at July 5, 2013 6:42 PM
I dont see why YOU are angry Patrick, the courts have allowed such behavior from cops for years, just as you like to point out the courts say you have no right to fly without the TSA fingering your asshole.
lujlp at July 6, 2013 9:44 AM
It's sad when the Cato Institute can create a "raid map" that has so many dots. And those are only the ones we know about.
But of course raiding and searching your house is separate from wanting to fly.
Jim P. at July 7, 2013 7:53 PM
Something in the back of my mind says that there's a historical case involving a police car that parked in someone's driveway, without the owner's permission, in order to run a speed trap. IIRC the resulting tickets were thrown out. Anyone else remember this? I need to do some searching.
Cousin Dave at July 8, 2013 7:04 AM
Leave a comment