Remember that whole business in the Third Amendment about not having quarter soldiers in private homes without the owner’s consent or that stuff in the Fifth Amendment about takings of property or that other stuff in the Fourth Amendment on unreasonable searches and seizures. It does not appear to apply to police in Henderson Nevada. The City of Henderson is being sued with its police chief Police Chief Jutta Chambers (left) as well as the City of North Las Vegas and its Police Chief Joseph Chronister (right) for a bizarre takeover of a home for a stakeout. Anthony Mitchell says that he was told that police needed to occupy his home to get a “tactical advantage” on the occupant of a neighboring house. When Mitchell refused, the police ultimately, according to his complaint, busted through his door, hit him with pepper balls, and put him into custody. The lawsuit also names Officers Garret Poiner, Ronald Feola, Ramona Walls, Angela Walker, and Christopher Worley.
Mitchell says that the ordeal began with a call from Officer Worley demanding access to his home. He refused to allow the police to do so and the call ended.
The complaint states that Officer David Cawthorn laid out the following plan in a report: “It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.’” Ultimately, when Mitchell did not open the door, the police bashed it in, shot him with “pepperball” rounds, searched the house, and set up a lookout point in the house. He says that they then went to his father’s house, a few doors away, and made a similar “request.” They took the father to the Henderson police station, and when he tried to leave, they arrested him. When his wife Linda opened the door, they used the house as planned. Both Mitchell and his father were booked them for obstructing an officer.
If these allegations are true, it is unclear why the police chiefs or the responsible prosecutors are still employed. Chief Chambers retired with a large buyout from the city.
All of the charges were later dismissed, a pattern we have seen in police abuse cases where victims are hit with charges and later offered pleas bargains or settlements. In this case, the charges were dropped but what prosecutor prepared the charges to begin with?
What I find most troubling about this case is that it seems to be following a trend. After the Boston bombing, I wrote a column expressing concern over how the Boston police effectively searched every home in a huge area — forcing families into the street under some general claim of exigency. It turned out that the suspect was not in the area. Police seem to be using exigency or “tactical” claims to circumvent constitutional protections.
I am eager to hear the response of these departments because, if true, these allegations constitute a chilling case of police abuse. If police can simply proclaim a “tactical” need as the basis for entering any home, the fourth amendment would become a purely discretionary rule. In my view, Mitchell had every right to refuse the use of his home. This was not some hot pursuit of a suspect or a need to protect officers from an imminent threat or harm. It was the forced occupation of a home — a poignant case to read on the Fourth of July weekend. We previously broke away from a guy named George who liked to do stuff like this.
Source: Courthouse News
Kudos: Andre Campos
Juliet, Jury nullification in Federal cannabis cases might get the loathsome DOJ to stop prosecuting cannabis laws and give Congress a chance to catch up w/ the public on this. I think they’re finally ready to turn it over to the states where it belongs. The US Conference of Mayors just met in Vegas[nothing like Vegas in July!] and voted 180-0 to allow cities and states to establish their own laws. The Teeny Tiny Nanny Mayor Bloomberg was absent.
Nick: Said nullification would be a perfect example of how we “overturn” laws that don’t serve our greater good. Bloomberg is such a tool.
Jury nullification should be an anomaly. Our judicial system — our society — depends on each of us showing up every day and doing “the right thing.”
BarkinD:
I am glad to read something from a SLU Law grad. I have a personal affinity for SLU going back to when I applied to law schools in the early 1980’s. And when I ended up going to L school (after a cowardly and mercenary retreat from graduate studies), I had a close friend from St. Louis. Though he went to Michigan undergrad & was at a law school supposedly “superior” to SLU, he was adamant regarding his respect for SLU, and the important role the L school played in the history of what until relatively recently was one of the largest & most important cities in the U.S.
Talking about jury nullification or trying someone in federal court after they are acquitted in a state court sounds good under certain egregious circumstances, but doesn’t it really depend on whose ox is being gored? The same folks delighted when the Feds tried the police after acquittal in the Rodney King case, might not have been happy when the same scenario happened to the killers of Yankel Rosenbaum.
And wasn’t the jury in the state’s trial of Rosenbaum’s killers engaging in jury nullification?
Municipal liability. If a police department has a Board of Trustees which sets policy and a particular policy then allows a cop (state actor) to violate the civil rights of a citizen, then the policy and acts will subject the muni to liability. If a city merely appoints a Chief and lets him set policy then the city is on the hook for policy violations or violations not constrained by a policy. Municipalities are not on the hook for conspiracy. 42 U.S.C. Section 1985. Board members can be liable and in some situations one must sue the Board in order to get to the city. The lawyers for the insurance underwriters can tell the cities, chiefs, and cops how to act. But they often fail to listen.
A few things get a bark from a dog who was a lawyer in a prior life and went to Saint Louis University Law School and then practiced law and indeed sued some opCays, municipalities and others under 42 U.S.C. Section 1983. We had four good law schools in Missouri and good ones in Illinois right next door. So, not a lot of influx of dumb law grads into the profession.
As to the Supreme Court. It needs geographical balance. Listen to the oral arguments on CSPAN and you will hear that 7 of 9 speak New Yorkie. We need a Hugo Black on the bench from the South and a Justice Douglas. Harvard and Yale seems to cut the mutard (mustard in English) but how come none of the present members of the Supreme Court ever represented a defendant in a criminal jury trial? How many ever tried a jury trial as a lawyer not as a judge? How many even sat as district court judges? This is why they are lame on many issues.
Too many law schools, too many law grads. I agree. The profession is dumbed down.
Spheres of liability in a federal civil rights act suit. The pain is felt by the bad state actor who violates a human beings civil right and has a money judgment or an injunction rendered against him. The pain goes up to the Superior officer who did not supervise or told bad cop to be bad. The pain goes to the municipality if it is named as a defendant and gets nailed. And also to the municipality if the cop gets nailed because they will often pay the judgment of the bad cop. They have insurance often. The insurance carrier tells all the departments under its wing to be clean. The defendants pay attorney fees. A judge in the federal court in the Eastern District of Missouri just set an hourly rate for a top attorney at $450 an hour. This might give some incentive to all those punks out there doing divorces and bankruptcies to learn some civil rights law and something or other about the Constitution.
Toni,
As I pointed out earlier, the S. Ct. decided that municipalities are not responsible for acts of gross misconduct that violate department policies. Granted that leaves a lot of latitude for misconduct that doesn’t violate dept. standards: for instance, shooting dogs. A cop can claim the dog was acting in a threatening manner, or he felt the dog was capable of becoming threatening. In that case, the taxpayer is more than likely on the hook. A viscous beating during a roadside stop for backchat? The cop is probably on his own for that.
The problem is that lawsuits really don’t affect cops. The city and local jurisdictions (via the taxpayers) are the ones on the hook for the money. The only consequences that should have an effect on rogue cops (and there are plenty) is termination (good luck getting past the unions on that one), having to cough up the money out of their own pocket, and/or criminal prosecution. Then, and only then, will the cops understand that they have been hired at taxpayer expense, and that they are public servants…maybe.
Welkom to the peoples republic of Germica 1929…….
No need to get all uppity over law schools.
Back in the old days, judges were just common men.
If they did not understand a law, it was void for vagueness.
We have a lot of laws that are void and/or unconstitutional.
Since no one in office is going to undo those wrongs, only jury nullification will rectify the situation.
Skip,
“At least with a Republican in office the remaining media fulfills its vital role of ‘oversight'”.
—————
You mean like when it exposed the attempts by the Bush/Cheney cabal to drag us into a war in Iraq with a bunch of cocked up evidence. Oh, wait a minute.
I definitely agree with those who urge litigation (easy for us to say) based on a violation of the Third Amendment. That Amendment is a strong statement regarding the right of privacy, and the right to be free from bullying tactics by the “State”.
While I am aware there has never been a Supreme Court decision considering the Third Amendment, nor any lower court case truly addressing Third Amendment rights, maybe its time to breathe new life into a privacy right that was near the top of the Founding Fathers’ agenda.
We need every shield available to guard against the overreaching of an out of control Obama Administration, not to mention whatever follows. Can you imagine the nightmare if Hillary becomes President! The combination of her track record of being intellectually and personally disingenuous and/or dishonest, plus the remaining “major” media’s obsequiousness towards liberal Democrats, would allow an administration to outright ignore the Fourth Amendment. At least with a Republican in office the remaining media fulfills its vital role of “oversight” (i.e., the “Press Clause” of the First Amendment), even if it might sometimes be hypocritical or somewhat hyper-ventilating in style and/or substance.
Pretty sure this situation later resulted in the suspects home getting 7 or 8 flashbang grenades fired into the home…to…protect the baby…
http://www.topix.com/forum/city/henderson-nv/TI0HGQIQ8515T6HGA
There’s video of that on youtube as well
Nevada Family Says Police Occupation of Homes Violated the Third Amendment
Jacob Sullum|Jul. 5, 2013 10:00 am
You don’t often hear about lawsuits based on the Third Amendment, the one that says “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.” That usually overlooked provision is cited in a federal lawsuit recently filed by Anthony Mitchell and his parents, Michael and Linda Mitchell—an oddity for which we can thank the Henderson, Nevada, police department. The Mitchells, who live in separate houses near each other in the Las Vegas suburb, were forcibly evicted from their homes on July 10, 2011, by police officers responding to a domestic violence report involving one of their neighbors. Here is how it all started, according to the complaint:
At 10:45 a.m. defendant Officer Christopher Worley (HPD) contacted plaintiff Anthony Mitchell via his telephone. Worley told plaintiff that police needed to occupy his home in order to gain a “tactical advantage” against the occupant of the neighboring house. Anthony Mitchell told the officer that he did not want to become involved and that he did not want police to enter his residence. Although Worley continued to insist that plaintiff should leave his residence, plaintiff clearly explained that he did not intend to leave his home or to allow police to occupy his home. Worley then ended the phone call.
The cops did not take no for an answer:
[Henderson police officers] banged forcefully on the door and loudly commanded Anthony Mitchell to open the door to his residence. Surprised and perturbed, plaintiff Anthony Mitchell immediately called his mother (plaintiff Linda Mitchell) on the phone, exclaiming to her that the police were beating on his front door.
Seconds later, officers, including Officer Rockwell, smashed open plaintiff Anthony Mitchell’s front door with a metal ram as plaintiff stood in his living room. As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor. Fearing for his life, plaintiff Anthony Mitchell dropped his phone and prostrated himself onto the floor of his living room, covering his face and hands.
Addressing plaintiff as “a**hole,” officers, including Officer Snyder, shouted conflicting orders at Anthony Mitchell, commanding him to both shut off his phone, which was on the floor in front of his head, and simultaneously commanding him to ‘crawl’ toward the officers. Confused and terrified, plaintiff Anthony Mitchell remained curled on the floor of his living room, with his hands over his face, and made no movement.
Although plaintiff Anthony Mitchell was lying motionless on the ground and posed no threat, officers, including Officer David Cawthorn, then fired multiple “pepperball” rounds at plaintiff as he lay defenseless on the floor of his living room. Anthony Mitchell was struck at least three times by shots fired from close range, injuring him and causing him severe pain.
The cops pepperballed Mitchell’s dog for good measure, even though she was “cowering in the corner when officers smashed through the front door.” They charged Mitchell with…wait for it…”obstructing an officer.” His father, Michael, faced the same charge after he tried to leave a police command center to which he was lured under false pretenses while the police took over his house as well. The two men were jailed for nine hours before making bail, and the charges ultimately were dismissed with prejudice. The lawsuit argues that police filed the unjustified charges “to provide cover for defendants’ wrongful actions, to frustrate and impede plaintiffs’ ability to seek relief for those actions, and to further intimidate and retaliate against plaintiffs.” In addition to Third and Fourth Amendment violations tied to the warrantless occupation of their homes, the Mitchells say the police are guilty of assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence, and infliction of emotional distress.
[Thanks to Johnny Cook for the tip.]
http://reason.com/blog/2013/07/05/nevada-family-says-police-occupation-vio
Sonofthunder… Pretty good hit on that Canadian syntax. I will only say that anyone choosing a few years of post-graduate study at the University of Toronto, quickly learns that U of T, not McGill, is clearly the best University in Canada. (I also like Univ. of Calgary, but its really, really cold up there).
You have the kool-aid analysis wrong, though. I recall the incident very well, including questioning the mindset of a fraternity, where I went undergrad, that had a Jonestown themed party. Grain alcohol laced grape Kool-Aid. And this was just after the events in Guyana. (Never been to that country, although Surinam, a neighbour, is quite OK).
Now that i think about it, the Kool-Aid saying is in rather poor taste (excuse the pun). However, it has become a good shorthand for certain situations, so I figure, go with it.
I may lean libertarian, but not Republicrat. Other than a few stand-out kooks on each side (e.g., antisemites amongst the Dems; anti-abortion nuts amongst the Rep), they’re practically mirror images of each other. Consider, with all the liberal and Dem attacks on Bush II for being an authoritarian fascist, etc., good old B. Obama has outdone him. And it was predictable that he would do so. (You never really believed he would close Guantanamo, did you?)
The “media” doesn’t (w/some exceptions, like here) call Obama on his strongly authoritarian leanings, but the former Constitutional Law professor (which is B.S.) seems amongst those attorneys who never quite got around to thinking about the Bill of Rights. Or, maybe he has thought about it, which might be more frightening. Personally, I think the guy is a bit of an empty suit, but I’m glad the U.S. had the opportunity to twice elect a Black president. It was an incredibly important part of American History, although I did think that systems like Affirmative Action would be over by the end of his second term. Guess there is still a little time.
Juliet: And doing NOTHING will stop these insane cops? What WILL? The Courts? The Law? We’ve LOST. You need to understand that, Juliet. When we allowed Bush to do whatever he wanted, we LOST. Odd thing is we KNEW it and tried to change things with Obama, for whom I voted twice. Once, believing, second time, the lesser of two evils like always.
Kraaken: I am agree with your assessment re past and current presidents, but all the blame cannot e laid at their feet. We scream for security and safety, demanding it in the form of more guns and more aggression — at home and abroad. Fighting for peace is like f**king for virginity.
Skip: You’re much more interesting when you join us on topic.
RE:
RTC 1, July 5, 2013 at 5:26 pm
Hey J.Brian Harris…
“For anyone who reads any of my writings and regards me as being some sort of “out-of-it” loner, I find it may be useful to mention that I actually have a lot of company.”
———-
Usually when someone feels the need to declare that they are not some sort of “out-of-it” loner, it means they’re some sort of “out-of-it” loner. Especially when they follow it by posting a thesis which has little bearing on the subject at hand. You might want to dial it back a little bit, and try having a conversation with folks. I’m just saying.
****** ******
When I deem it useful to learn something that I do not yet know, and therefore don’t know what it is, I start out in a relatively small way, and “dial up”: what I do until I get some response that conveys some plausibly useful information to me.
What is not relevant to many of the people who read and contribute to the Turley Blog and other Internet sites that permit reader participation may happen to be profoundly relevant to me and to my bioengineering work regarding public safety aspects of the oft-imputed social contract to which no one has ever given actually informed consent.
Were I to state what I believe in, I suppose I might state that I believe in the truthful decency of a typical newborn baby.
Doesn’t surprise me. They shot the ice cream lady a few years back in front of her children.
Some people still wish to be in denial of systemic break down within govt’s nationwide & across Europe happening right now!
Below is just a few local cases, but I’m sure a simple search of youtube for police corruption, like Fast & Furious & others, would keep you busy viewing videos of corruption for years!
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Former prisoner sues the City of Tulsa
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6. Tulsa, Okla.
Brandi Simons
Weather Channel tornado expert Dr. Greg Forbes made a list of the most tornado-prone cities based on data from 1962-2011 from the National Weather Service’s Storm Prediction Center. In this photo, it’s a winter storm and not a tornado threatening, as a City of Tulsa sand truck picks up a load of sand to put down on icy roads in January 2007. (Photo by Brandi Simons/Getty Images)
By Skyler Cooper
and The Associated Press
A man recently freed from prison has filed a lawsuit against the city of Tulsa alleging that the city failed to properly supervise officers who deprived citizens of their rights.
The complaint was filed Tuesday and is 17 pages long.
Tony Becknell filed the suit in Tulsa County District Court.
Becknell is one of the dozens of former prisoners who had his sentence reduced due to a federal corruption probe of police practices that began in 2009.
Becknell was released last year from a 16-year term on drug charges.
He is seeking a trial and over $15 million in damages and attorney fees.
In addition to the city, former Tulsa officer Jeff Henderson is named as a defendant, along with 40 other city employees, policymakers and supervisors on the force.
Henderson has been in prison since he was sentenced in December 2011 after a jury found him guilty of lying six times during a federal court case and violating the civil rights of citizens during an illegal search.
He was among 11 officers to be charged or named as unindicted co-conspirators in the federal investigation of the department. It represented one of the worst police corruption scandals in at least a generation. **