Judge: Police takeover of Henderson homes not covered by Third Amendment

Members of a Henderson family may proceed with their civil rights case against police officers who took over their homes without warrants in 2011, but a federal judge has thrown out the family’s unusual Third Amendment claim.

Michael and Linda Mitchell and their adult son, Anthony, filed the lawsuit in 2013 against Henderson and North Las Vegas police. The case included a seldom-raised claim that police violated the Third Amendment, which places restrictions on the quartering of soldiers in private homes.

“While we are sorry that we will not be able to have a jury decide whether the Mitchell family’s Third Amendment rights were violated, the judge’s order was well-reasoned, and we respect the court’s decision,” said attorney Frank Cofer III, who represents the Mitchells. “There are plenty of other constitutional rights at issue, and the case is proceeding on these claims.”

Henderson City Attorney Josh Reid called the Third Amendment claim a “red herring” and said he believed the plaintiffs’ lawyers raised the novel issue to make news.

“We’re pleased that the judge limited the scope of the case, and we’re going to continue to litigate to defend our police officers,” Reid said.

Henderson and North Las Vegas police arrived outside the Mitchells’ homes on Eveningside Avenue on July 10, 2011, in response to a domestic violence call involving a neighbor. The homes are near Gibson Road and Horizon Ridge Parkway.

Police believed the neighbor had barricaded himself and a child in his home, and a SWAT team arrived at the scene.

According to the Mitchells’ lawsuit, a Henderson police officer asked Anthony Mitchell to allow police to use his house to gain a “tactical advantage” over the neighbor, but Anthony Mitchell rejected the request.

The lawsuit claims police later knocked down Anthony Mitchell’s door with a metal ram and entered his house without either a warrant or his permission. A Henderson police officer then arrested Anthony Mitchell, according to the lawsuit, and multiple officers searched his home.

Meanwhile, the lawsuit alleges, police entered his parents’ home across the street without either a warrant or permission and searched it.

Michael Mitchell also was arrested, according to the lawsuit, which claims both he and his son spent at least nine hours at the Henderson Detention Center on charges of obstructing an officer before they were released on bond.

The lawsuit claims police officers should be considered soldiers under the Third Amendment and that their occupancy of a house for less than 24 hours constitutes quartering. In this case, the Mitchells claim the occupancy lasted about nine hours.

“The Third Amendment was passed in response to several quartering acts imposed on the American colonists by Parliament; these acts functioned as a pseudo-tax to support the British military,” U.S. District Judge Andrew Gordon wrote in his Feb. 2 order in the Mitchell case.

According to the 39-page decision, Third Amendment case law is sparse, but modern interpretations have described it as protecting a fundamental right to privacy.

“I hold that a municipal police officer is not a soldier for purposes of the Third Amendment,” Gordon wrote. “This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment.”

The ruling allows the Mitchells to proceed with their claims that police violated both the Fourth Amendment, which prohibits unreasonable searches and seizures, and the First Amendment, which protects free speech.

According to the lawsuit, police retaliated against the Mitchells for engaging in protected speech activities, which included photographing police conduct from inside their homes. Anthony Mitchell also made a gesture with his middle finger to one of the officers.

“The defendants do not dispute that their alleged conduct in pointing firearms at the plaintiffs and entering their homes without a warrant would chill a person of ordinary firmness from ceasing to engage in protected activity,” Gordon wrote.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710. Find her on Twitter: @Carri Geer.