Published July 08, 2013
A Nevada family is using a rare legal argument in a lawsuit claiming police tried to commandeer their homes for a surveillance operation and then arrested the homeowners for resisting -- invoking the Third Amendment, which bars soldiers from being "quartered" in a residence without permission.
The Mitchell family, in a lawsuit filed July 1, detailed the incident from July 10, 2011. According to the complaint, it all began when the Henderson city police called Anthony Mitchell that morning to say they needed his house to gain “tactical advantage” in a domestic violence investigation in the neighborhood.
The situation turned ugly when Mitchell refused repeated requests to leave and police smashed through the door, the 18-page complaint states.
Mitchell alleges the police, upon entering his home, forced him to the floor at gunpoint, then shot him and his “cowering” dog with a few rounds of pepper-spray pellets. Police then allegedly handcuffed and arrested Mitchell in connection with “obstructing a police officer” before occupying his home.
It didn’t end at Anthony Mitchell’s house in suburban Las Vegas, the complaint continues. That same day, the officers also took over the home of Mitchell’s parents, Linda and Michael Mitchell, who live in the same neighborhood and are named as plaintiffs.
The police department declined Monday to comment on the case when reached by FoxNews.com, leaving the matter to the court should the case go to trial.
However, the more compelling questions appear to focus on whether the Third Amendment strategy can work, considering the courts would have to consider the police officers as soldiers.
The amendment states: "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."
“I’m confident the Mitchells have a good case,” said Frank Cofer, a partner in the firm Cofer, Geller & Durham LLC representing the plaintiffs.
Cofer told FoxNews.com that what struck him about the case was the officers’ use of military-style tactics.
“And after entering the houses, they drank water, ate food, enjoyed the air conditioning,” he said. “That struck me as quartering.”
The suit alleges that, at the parents' house, police lured Michael Mitchell from his home to a nearby “command center” by saying they needed him to get the neighbor involved in the domestic violence case to surrender. When officers began to backpedal, Mitchell eventually attempted to leave, which resulted in him being handcuffed and eventually charged with obstructing an officer.
Police then returned to Mitchells' house where they allegedly yanked wife Linda from the premises after she refused to let them in without a warrant.
She was not arrested, and police have dropped all charges against the family.
However, the Mitchells are still suing for an undisclosed sum, saying their rights as citizens were violated under the Third Amendment -- as well as the Fourth and 14th Amendments -- and that the incident resulted in physical injury, malicious destruction of property and “extreme emotional distress.”
Anthony and Michael also had to pay a bond to secure their release, the suit alleges.
John Yoo, a professor at the University of California at Berkeley’s law school, wasn't so sure about the family's argument. He said the Mitchells may have claims under other federal and state laws “but their chances are very, very low on the Third Amendment.”
Yoo, a visiting scholar for the conservative-leaning American Enterprise Institute and former Justice Department official, told FoxNews.com the most difficult challenge for them is that there were no "soldiers" in their house, before the court gets into the question of whether "quartering" occurred.
“Local police on law enforcement missions are not soldiers,” he said. But “Nevada should compensate the Mitchells’ for the temporary use of their home and for any damages caused in the operation.”
Among those named in the suit are the city of Henderson, the city police department, the police chief, five officers and the North Las Vegas Police Department.
The suit also alleges both police departments “developed and maintained policies and/or customs exhibiting deliberate indifference to the constitutional rights of United States citizens, which caused the violations of the plaintiffs’ rights.”