Only necessity defense may save Nevada police from home-invasion liability
Allegations of possible violations of rights secured under the Third Amendment by two Nevada police departments caught our eye late last week. Yes that’s right, the one remaining right in the Bill of Rights not yet explicitly or implicitly “incorporated” in the Fourteenth Amendment to apply to state governments, and most insisted upon by pre-Revolutionary residents of Boston and Charleston, S.C. that suffered the seizure of their homes by occupying British troops.
According to a federal civil action for damages filed on behalf of the Clark County, Nevada family of Anthony Mitchell by Las Vegas attorney Benjamin C. Durham, officers of the Henderson and North Las Vegas city police departments essentially “quartered” their residence by force for the purpose of conducting surveillance of a neighbor’s residence where domestic violence was suspected. Having read most of Robert Parker’s “Spenser” private eye novels, we are familiar with private dicks swinging this type of “breaking and entering” maneuver, albeit surreptitiously, without implicating constitutional-violation jurisdiction requirements for the bringing of federal lawsuits, but Lawyer Durham’s complaint (and Courthouse News Service report) reads more like Hollywood fiction than historical non-fiction:
“At 10:45 a.m. Officer Christopher Worley (HPD) contacted plaintiff Mitchell via his telephone [and told him] that police needed to occupy his home in order to gain a ‘tactical advantage’ against [a neighbor]. Mitchell told [him] he did not want to become involved… At a few minutes before noon…officers, smashed open plaintiff Mitchell’s front door with a metal ram as plaintiff stood in his living room…As plaintiff Mitchell stood in shock, the officers aimed their weapons at Mitchell, shouted obscenities at him and ordered him to lie down on the floor…[then] officers fired multiple ‘pepperball’ rounds at plaintiff as he lay defenseless on the floor.
Officers then arrested Mitchell for obstructing a police officer, searched the house and moved furniture without his permission and set up a place in his home for a lookout, Mitchell says in the complaint. To add insult to injury (and possibly involve PETA as an “intervenor” plaintiff), the Mitchells allege that gratuitous pepperball shots were fired at their cowering female family dog “Sam”, who was caged and imprisoned outside the home without water or food in 100 degree temps for most of the rest of the day.
The allegation that local police officers’ forced entry into a private home is the Third Amendment-equivalent of “soldiers” being “quartered” seems far-fetched. The amendment prohibits any such quartering “in time of peace” under any circumstance, “nor in time of war, but in a manner prescribed by law.” We doubt that the Authorization for the Use of Military Force passed soon after the attacks of September 11, 2001 (essentially declaring war on Al Qaeda and its affiliates) applies to the alleged neighborhood domestic violence, nor that Commander-in-Chief Barack Obama has prescribed any “law” for such seizures.
We do think the defendants will have a hard time justifying such actions as a “reasonable” search and seizure under the Fourth Amendment. The only possible defense, if the Complaint is anywhere close to the truth, would be that of “necessity”. Under certain “exigent and emergency circumstances” (usually involving the likely imminent loss of life) government agents and officers may temporarily seize real property; but would still be liable for compensatory damages.
Finally, governments are allowed to “take” property from private owners for public purposes [and even some private purposes given the execrable Kelo v. City of New London (2005) case] for “just compensation” under the Fifth Amendment; but such takings are ordinarily fee simple sales and not “rentals” for temporary stake-outs.
We advocate patience as the wheels of justice turn slowly enough for law enforcement to defend their actions, but would quibble a bit with the Outside the Beltway publication that brought this Third Amendment allegation to our attention when they say:
Even during early American wars like the War of 1812 and the Civil War, when soldiers were roaming the countryside far from anything resembling a base, there were seemingly no reports of soldiers occupying homes of civilians, although it was common for both sides in the Civil War to make use of property that had been seemingly abandoned in the face of advancing armies.
“Seemingly abandoned” property “in the face of advancing armies? My fellow Americans, we would welcome you down here in Atlanta to peruse the charred remains left in the wake General William Tecumseh Sherman’s March to the Sea for a clearer picture of soldier quarterings, followed by takings without just compensation, albeit admittedly in time of war in a manner prescribed by [Abraham Lincoln’s] law.
[Mike DeVine, a criminal defense and constitutional trial and appellate lawyer for over two decades throughout the South, now writes at DeVine’s Right.com]
“One man with courage makes a majority.” – Andrew Jackson