65°F
weather icon Mostly Cloudy

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.

Don't miss the big stories. Like us on Facebook.
Crime Videos
Bel Air Drive Officer Involved Shooting Presser - Video
LVMPD Assistant Sheriff Tim Kelly goes over the officer-involved shooting on Bel Air Drive.
Former Las Vegas police officer get 25 life sentences for sexually abusing child
Former Las Vegas Police officer Bret Theil was sentences to 25 consecutive life sentences at the Regional Justice Center Wednesday, May 15, 2019, for sexually abusing a child over a decade. (K.M. Cannon/Las Vegas Review-Journal) @KMCannonPhoto
Man pushed off bus in Las Vegas - VIDEO
Las Vegas police arrested 25-year-old Cadesha Bishop on May 6, after she allegedly pushed Serge Fournier, 74, off of a parked bus near Fremont Street and 13th Street about 4:50 p.m. March 21.(Las Vegas Metropolitan Police Department)
$1 million bail set for mother charged with drowning 2-year-old daughter
The 44-year-old mother who police say drowned her 2-year-old daughter in a bathtub in a northeast Las Vegas apartment on Saturday made her first court appearance on Tuesday, May 14th.
Officer arrested on suspicion of lewdness with a child appears in court
Matthew James Terry, a Las Vegas police officer arrested on suspicion of lewdness with a child, appears in court Monday morning, May 13, 2019. (Michael Quine/Las Vegas Review-Journal)
Police seek hit-and-run driver
A motorcycle officer pulled over a Mercedes SUV, and after the officer came to a stop, it shifted into reverse, intentionally hitting the officer.
Thedrick Andres becomes Henderson Police Department acting chief
Henderson Police Department Acting Chief Thedrick Andres speaks about his goals in his new position at the Henderson Police headquarters, Monday, April 29, 2019. (Caroline Brehman/Las Vegas Review-Journal)
2 dead, 1 wounded after east valley neighborhood shooting
One man and one woman are dead and another man wounded after a shooting Thursday afternoon in an east valley neighborhood.
Bail denied for former police detective charged with murder
Bail was denied Tuesday for former Metropolitan Police Department detective, Pamela Rene Bordeaux who is accused of fatally shooting her daughter’s ex-husband during supervised visitation with his child.
Third suspect in death of California doctor appears in court
The third and final suspect in the killing of a California doctor, Jon Kennison, 27, appears in court Friday, April 19, 2019. Kennison, Kelsey Nichole Turner, a former model, and Diana Pena, face charges of murder and conspiracy to commit murder. (K.M. Cannon/Las Vegas Review-Journal) @KMCannonPhoto
Richard Cleaves of Pahrump arrested in burglary on former Binion property
Updated press release regarding burglary on a former Binion property: Richard Cleaves, 56 of Pahrump, has been arrested on a warrant for burglary, conspiracy to commit grand larceny, and destruction of property. (Nye County Sheriff's Office)
Judge denies bail for suspect charged in the killing of California doctor
Diana Pena, one of three people charged in the killing of a California doctor, is being held without bail after her fingerprints were found on the car where Dr. Thomas Burchard's body was discovered.
Ex-NFL player and girlfriend held without bail in child’s death
Former professional football player Cierre Wood and his girlfriend, Amy Taylor, face charges of murder and child abuse in the death of Taylor's 5-year-old daughter. (Michael Quine/Las Vegas Review-Journal)
NHP identifies man who was shot by trooper on Mount Charleston
Nevada Highway Patrol updates the media on the April 2, 2019 officer involved shooting on Mount Charleston. (Michael Quine/Las Vegas Review-Journal)
Las Vegas court grants '90 Day Fiancé' defendant continuance
"90 Day Fiance" stars Colt Johnson and his mother Debra left the Las Vegas Justice Center Thursday, after the court granted Larissa dos Santos Lima a continuance in her misdemeanor case, in which she is accused of domestic violence against Colt. (Mat Luschek / Review-Journal)
Details released on in-custody death
Assistant Sheriff Charles Hank addresses media about details of an in-custody death at Clark County Detention Center on March 31. (Rachel Aston/Las Vegas Review-Journal)
Man hurt in shooting with Nevada troopers at Mount Charleston
A man was injured in a shooting involving Nevada Highway Patrol troopers Tuesday afternoon at Mount Charleston on state Route 157 near Echo Trail. (Michael Quine/Las Vegas Review-Journal)
Officer wounds inmate during escape attempt
An officer fired on an inmate who stole a vehicle and tried to flee, ramming several cars and leading officers on a chase until he ran out of gas.
Man fatally shot during a 'beer skip'
A store clerk is being questioned after a man was fatally shot during a robbery at a gas station Friday. (Michael Quine/Las Vegas Review-Journal) @Vegas88s
Las Vegas police give details on fatal shooting
Metro homicide Lt. Ray Spencer gives a briefing on a fatal shooting near downtown Las Vegas that occurred on March 27, 2019. (Katelyn Newberg/Las Vegas Review-Journal)
Las Vegas community pays tribute to boy killed by car
The community joined friends and family at Wilbur & Theresa Faiss Park, Wednesday evening, to remember the boy who was struck and killed by a car crossing South Fort Apache Road from Faiss Park, near West Maule Avenue, on Monday. (Mat Luschek / Review-Journal)
Person of Interest Found For Downtown Las Vegas Bar - Video
Las Vegas Metropolitan Police Department is seeking help to find a person of interest in a potential homicide case at a bar in downtown Las Vegas.
Metro briefs media on OIS near downtown Las Vegas
Police address media about officer-involved shooting that started on Maryland and Vegas Valley, and concluded downtown, near the Golden Nugget.
Update on OIS at Vegas Valley and Maryland
The incident began at the Steinberg Diagnostic Medical parking lot and ended downtown.
Amy And Spencer Powell Recount Hit And Run
Amy Powell and her son Spencer recount the day Spencer was hit by a truck while riding his bike. (Mat Luschek / Review-Journal)
Jeremy Burch of Tonopah arrested in Amarillo, TX
Jeremy Burch of Tonopah was arrested in Amarillo, TX on a Nye County warrant for open murder, burglary, obtaining money under false pretense, use of credit card w/o owner consent, and destruction of evidence. (Nye County Sheriff's Office/Facebook)
Metro Presser For OIS 6 (Full)
Metro police address the officer involved shooting that took place on March 19, 2019.
Metro Presser For OIS 6
Metro police address the officer involved shooting that took place on March 19, 2019.
Domestic disturbance call ends in suicide
A man died by suicide after police tried negotiating with him outside of his ex-girlfriend’s home on March 13. (Michael Quine/Las Vegas Review-Journal) @Vegas88s
20-year-old armed robbery suspect shot by Las Vegas police
A 20-year-old armed robbery suspect shot by a Las Vegas officer on Saturday night is also accused of burglarizing a Boys & Girls Club minutes before the shooting.
Metro briefing on OIS near downtown Las Vegas
Metropolitan Police Department Capt. Kelly McMahill briefs the media on a officer-involved shooting near Ninth Street and Bonanza Road on March 19, 2019. Mike Shoro/Las Vegas Review-Journal)
Man robs restaurant with large kitchen knife
On March 16, 2019, at approximately 6:00 PM, an armed robbery occurred at a local restaurant located near East Charleston and Eastern. The suspect entered the business with a large knife, demanding money from the registers. (Las Vegas Metropolitan Police Department)
Commercial Robbery On 3000 Block Of North Las Vegas Blvd - VIDEO
On February 19th, 2019, at approximately 10:23 am, a robbery occurred to a business located on the 3000 block of North Las Vegas Boulevard. The pictured suspect entered the business, approached the counter and pointed a firearm at the victim demanding money. The victim complied and the suspect fled with an undisclosed amount of money. No injuries were reported.
DEA Launches New Program To Combat Opioid Epidemic
The Drug Enforcement Administration is launching a new effort in Nevada to combat the opioid epidemic.
THE LATEST
Dancers put on a Hollywood show in Las Vegas — PHOTOS

Local dancers from the Sun City Dance Company performed during the Hollywood Lights show at the Starbright Theatre at the Sun City Summerlin Pinnacle Community Center in Las Vegas on Sunday.