Police as “Soldiers” – 3rd Amendment Suit
I’m not a lawyer, I don’t play one on television, and I didn’t stay in a Holiday Inn last night. Nevertheless, I can still say that if this report is accurate, the police egregiously violated the rights of the people involved.
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.
So the police, attempting to build a case against a person exercising unrighteous dominion over a spouse or domestic partner, exercises unrighteous dominion over innocent folks who just happen to live nearby, and consider the family’s completely legitimate refusal to cooperate to be a criminal act of “obstruction”.
The Mitchell family is suing the Henderson Police Department on 3rd Amendment grounds, claiming that the police who bashed in their door, shot them with pepper spray, and occupied their home were being “quartered.” I’d be interested to hear from some of the lawyers among us (Mr. DeVine, perhaps) on whether they think the Mitchells have a 3rd Amendment case. With my limited legal knowledge, I would have to say they don’t have much of a case using the 3rd Amendment. If I were a lawyer for the police, I’d say that the Posse Comitatus Act clearly separates military and law enforcement personnel, which means that law enforcement officers acting in an official capacity could not be defined as soldiers, and so the 3rd Amendment cannot apply. It would seem that the 4th Amendment is a much better avenue, because the Mitchell’s right to be secure in their persons, houses, papers and effects was clearly violated by the Henderson Police.
Although the 3rd Amendment doesn’t apply to the situation if the aforementioned logic holds true, I can think of another way to define what the police did in this situation. I’m not a lawyer, but it seems to me that bashing in someone’s door, subduing them, occupying their house and using their resources without permission can be defined as a home invasion. If one were to leave out the fact that the people doing the bashing and the shooting and the occupying were police officers, what other conclusion could be reached? If I walked across the street and did something like that to my neighbors, I would be arrested and prosecuted for it, and rightly so.
The Mitchells were arrested for “obstructing a police officer”. If kind of behavior is allowed to stand, it sets a dangerous precedent. The Mitchells, according to the story, weren’t actively obstructing anything. Their “obstruction” consisted of them refusing to allow the police to enter their home without a warrant. If the Mitchells are in the wrong, then it means that law enforcement agencies have an implicit right to confiscate the property of law-abiding citizens and appropriate that property for their own use. If the Fox story is accurate, the Mitchells weren’t suspected of any wrongdoing. Their only crime was to have the temerity to live in a location that gave the police some sort of “tactical advantage” over a suspect in a nearby house, and then refuse to allow the police inside. This happens all the time in Hollywood, when Will Smith or Bruce Willis steals a car or a motorcycle, and with a smirk and a clever one-liner, speeds off in pursuit of the bad guy. In the real world, people like the Mitchells aren’t just stuntmen or character actors onscreen for a moment expressing their consternation as Bruce Willis makes off with their car in the Name of the Law. They have to deal with the bashed-in door, and the knowledge that their home was violated and occupied by a group of heavily armed men, the very men, in fact, that were supposed to be preventing such behavior.
I hope that the Mitchell family is handsomely rewarded for their troubles, and that the officers of the Henderson Police Department who think that home invasion is a legitimate police power are given the opportunity to explore new career paths, preferably careers that involve the transportation port-a-potties or the deep cleaning of sanitation pipes, or any other job that places them away from the rest of civilized society.