Arrested for Refusing to Let the Police use His House to Gain "Tactical Advantage".

[wewoapsiak]

http://www.courthousenews.com/2013/07/03/59061.htm

 

 

LAS VEGAS (CN) - Henderson police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court.  The Mitchell family's claim includes Third Amendment violations, a rare claim in the United States. The Third Amendment prohibits quartering soldiers in citizens' homes in times of peace without the consent of the owner.

The story is written poorly, but it looks like the police didn't really care what the homeowners thought about them using their house.  They were going use it without a warrant no matter what.  

 

 

 

The complaint continues: "Defendant Officer David Cawthorn outlined the defendants' plan in his official 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.'"

 

 Here are the case files on archive if anyone would rather read these.  Crappy cops are in the news a lot lately, but I can't make heads nor tails of this.  How hard would it have been for the department to get a warrant?  

[Chucktshoes]

Pffft! A warrant? Why you gotta be giving these hard working cops a hard time about such a trivial matter as that? They wouldn't do stuff like kick down people's doors and shoot dogs if it wasn't in the best interest of your safety, so why you gotta be busting their balls about this?

[TMF]

Wow, 3rd amendment? Pretty neat precedent to challenge them on. This should be interesting.

[vontar]

About time someone had the guts to step on the 3rd.

 

I mean the 1st, 2nd, 4th have been kicked around.  I guess they found someone that could count and they realized they missed the 3rd.

[TripleDigitRide]

It's not legal for LEOs to commandeer your home, is it?

[vontar]

It's not legal for LEOs to commandeer your home, is it?

 

I guess they can do what they want now days, they don't have to answer for it at the time they do it, only months, years down the road.

Edited July 5, 2013 by vontar

[Worriedman]

It's not legal for LEOs to commandeer your home, is it?

Appears any more, that the government can do whatever it wants to.

[Guest 6.8 AR]

Especially after the Boston event.

 

And No! They can't. That third Amendment claim has to be good for something.

[Photoguy67]

I think they will lose since it was police and not soldiers. They would have a better case under the 4th amendment.

[Guest AmericanWorkMule]

Did anyone that was forced from their home in Boston file a lawsuit?

Edited July 5, 2013 by AmericanWorkMule

[TripleDigitRide]

Did anyone that was forced from their home in Boston file a lawsuit?

Not that I'm aware. The .gov used Martial Law, so I don't think that is the same type of situation. Not that Martial Law is any better.

Edited July 5, 2013 by TripleDigitRide

[Sam1]

I'm interested to see how the police are restricted by the third amendment, it's pretty cut and dry concerning soldiers only.  I think this is going to be a wasted effort when they could've gone after them for whatever law actually covers the situation.

[vontar]

I guess we are about to find out if Police are Soldiers or not.

 

I can't even seeing this under no knock warrants since there was no PC on the home owner.

[vontar]

 

seek punitive damages for violations of the third, fourth and 14th Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress.

Not just the 3rd.

[Chucktshoes]

I'm interested to see how the police are restricted by the third amendment, it's pretty cut and dry concerning soldiers only. I think this is going to be a wasted effort when they could've gone after them for whatever law actually covers the situation.

Considering the militarization of police departments, how can one tell the difference betwixt the two anymore?

[Guest Emtdaddy1980]

And to think a few days ago someone on TGO accused me of having "preconceived notions about LEOs" pffftt, where would I get those from?

[TripleDigitRide]

And to think a few days ago someone on TGO accused me of having "preconceived notions about LEOs" pffftt, where would I get those from?

Sadly, you're far from the only one. Due to incidents like this, the us versus them  mentality is growing at an astonishing rate. Even sadder yet, LEOs in general refuse to take any real responsibility for such notions.

 

As someone who was once wronged by a THP officer and redneck court system, I understand how difficult it can sometimes be to keep an open mind where LEOs are concerned. I try very hard, but daily stories about questionable police practices and downright illegal activity don't help their cause. All too often, they appear to be exactly what they are, just another arm of a corrupt government. It's a constant struggle. I sometimes have to consciously tell myself that not all LEO are a waste of space. Most of the time I listen.  ;)   

[Reservoir Dog]

And to think a few days ago someone on TGO accused me of having "preconceived notions about LEOs" pffftt, where would I get those from?

 

That's because you do have preconceived notions about all LEOs.  Prejudice sucks, doesn't it.

[Guest Emtdaddy1980]

I work closely with LE quite often in my line of work, and I know there are some good ones out there. But yeah I still have to remind myself of that fact. It seems that the older guys tend to be the decent ones, while the young bucks who got picked on in middle school and have something to prove are destined to be in the news for something like the above. I wish I could say that my hangups with PD come only from the stories we have all read, but I've had enough firsthand flack.

[battleop]

 Crappy cops are in the news a lot lately, but I can't make heads nor tails of this.  How hard would it have been for the department to get a warrant?

I doubt they could get a warrant when no crime was committed.

[Guest Emtdaddy1980]

Reservoir Dog, if you'll read my above post you'll notice that I clearly state that there ARE good men and women working in LE. But you have to admit that there's plenty of individuals doing a good job of making the rest of you work double hard for your good name.

[RichardR]

I wonder how often this sort of stuff happens & doesn't get reported on by media outlets ...

I'm guessing a lot of stuff isn't reported.

[Guest TankerHC]

They will lose this case. Digging around got the usual sh__house lawyer responses, but then came across a Legal Website where this very question was asked and answered a while back. They back it up with case law.

 

Can Police Commandeer Cars of civilians?

 

Yes. Blackman v. City of Cincinnati, a 1942 Ohio Supreme Court case, involves a police officer who ordered a driver to use his vehicle to chase a fleeing felon. Upheld by a lower Federal Court, no action by SCOTUS affirming the Lower Courts decision.

 

Can a Police Officer take charge of unwilling civilians and confiscate private property if needed to quell a crime?

 

Depends on the jurisdiction but "Connecticutt Supreme Court State v. Floyd decision. "the basic concept that every citizen can be compelled to assist in the pursuit or apprehension of suspected criminals has ancient Saxon origins, predating the Norman Conquest, and . . . derives from a time in which the public peace depended upon the ability of the populace to summon their neighbors, through the raising of the 'hue and cry,' to come to their assistance when a crime had occurred."

Today most jurisdictions have rules empowering sheriffs, and the police generally, to command assistance from the public. These laws are sometimes called posse comitatus ("the power of the county") statutes. Ironically, England repealed its statute permitting sheriffs to command assistance in 1967. However, Blue says, "English constables are still thought to have the power to call upon bystanders to assist them in cases of reasonable necessity."

The Supreme Court has upheld the federal government's power to commandeer private property but imposed strict limits. In United States v. Russell, the court noted:

Some states have imposed similar requirements. Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner . . . but the public danger must be immediate, imminent, and impending, and the emergency in the public service must be extreme and imperative, and such as will not admit of delay or a resort to any other source of supply, and the circumstances must be such as imperatively require the exercise of that extreme power in respect to the particular property so impressed, appropriated, or destroyed.

 

For instance, in 1999, Ken Salazar, the Colorado attorney general, opined that absent a declared emergency, police could not commandeer the use of an electricity generator and employ it to provide electricity to other citizens. To do so . . . the sheriff would have to demonstrate that he could not have "fully performed" his peace keeping functions in that situation without the use of that action, and therefore, his power to act was implied. The sheriff would have to justify his actions based on the facts of each situation, and after the actions have occurred. Therefore, the sheriff is taking a legal risk when relying on a later justification of implied powers. By contrast, the use of traditional arrest powers is more appropriate and well defined.

 

Salazar was careful to note that a state statute authorized "the sheriff to 'command aid' from others; this language derives from the traditional notion of 'rounding up the posse.'" But he saw the power as limited to property commandeered in order to make an arrest: "The codification of the 'commanding aid' statute clearly contemplates aid in the making of an arrest and not otherwise."

 

Third, what if you refuse to help or surrender your belongings? In jurisdictions having a posse comitatus law, you could be fined and possibly even jailed. In Connecticut, for example, failure to assist a firefighter or peace officer on command is a Class A misdemeanor, which carries a maximum penalty of a year in jail and a $2,000 fine.

 

Fourth, are there any limitations on this power? The earliest American case discussing the crime of "refusing to assist an officer in making an arrest" is Dougherty v. State, an Alabama case. The court held that the defendant should be acquitted if an attempt to give aid would be both futile and dangerous. Other courts have noted that the request must be legal, and a few have held that just because a law requires a citizen to obey doesn't mean the police are authorized to command--a separate statute is required for that. Still other courts have seized on the word command--they require the prosecution to prove that the defendant disobeyed a command, not just a request.

 

More case law.

 

Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726, 61 A.L.R. 1354 (1928) (Cardozo, C.J.) (Taxi driver was obligated to assist police officer on command and so was performing his duties when he was injured after police officer jumped on the running board and ordered driver to chase another car in order to arrest its occupant)

 

Apparently beat cops used to commandeer taxi's all the time to get criminals that they arrested to jail.

 

Coleman v. State, 63 Ala. 93, 1879 WL 950 (1879) (noting state statute permitting sheriff executing warrant to summon persons to assist)

Comfort v. Commonwealth, 5 Whart. 437, 1840 WL 3960 (Pa. 1840) (affirming conviction for failure to assist constable)

 

Keesling v. State, 288 Md. 579, 420 A.2d 261, 19 A.L.R.4th 923 (1980) Found for the State

 

State v. Brown, 264 N.C. 191, 141 S.E.2d 311 (1965) (reversing conviction for refusing to assist sheriff where statute requiring assistance had been repealed)

 

State v. Deniston, 6 Blackf. 277, 1842 WL 2764 (Ind. 1842) (The refusal, without a sufficient excuse, to assist a constable in preventing the escape of a person in his custody, is an indictable offense)

 

State v. Ditmore, 177 N.C. 592, 99 S.E. 368 (1919) (requiring entry of guilty verdict on charge of refusing to assist sheriff)

 

State v. Santiago, 22 Conn.App. 683, 578 A.2d 668 (1990) (affirming conviction for refusing to assist an officer) appeal dismissed, 218 Conn. 483, 590 A.2d 434 (1991).

 

Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973) (affirming conviction for refusing to assist an officer)

 

They also list a ton of case law that shows they do not have to compensate you if they destroy your property.

 

Seems the only way out is if the actions of the Officers would put the lives of the citizens in jeopardy. In those cases the US Supreme Court found that a refusal of the command (or the request) is legal and being forced to comply is a violation of the 4th, 5th Amendments.

 

Also the 3rd Amendment only applies to the military, and not the entire military, only the Army and Air Force. When it was decided, it was decided for the Army (Land Forces) and the Air Force is covered because at ts inception it was part of the Army. The Navy and Marine Corps is not covered under the 3rd Amendment or Federal Posse Commitatus.

 

Navy and Marines. The Posse Comitatus Act proscribes use of the Army or the Air Force to execute the law. It says nothing about the Navy, the Marine Corps, the Coast Guard, or the National Guard. The courts have generally held that the Posse Comitatus Act by itself does not apply to the Navy or the Marine Corps. They maintain, however, that those forces are covered by similarly confining administrative and legislative supplements, which appear in the Department of Defense (DoD) Directive.

Coast Guard. The Posse Comitatus Act likewise says nothing about the Coast Guard. The Coast Guard is a branch of the armed forces, located within the Department of Homeland Security, 14 U.S.C. § 1 (as amended), but relocated within the Navy in time of war or upon the order of the President, 14 U.S.C. § 3. The Act will apply to the Coast Guard while it remains part of the Department of Homeland Security. While part of the Navy, it is subject to the orders of the Secretary of the Navy, 14 U.S.C. § 3, and consequently to any generally applicable directives or instructions issued under the Department of Defense or the Navy. As a practical matter, however, the Coast Guard is statutorily authorized to perform law enforcement functions, 14 U.S.C. § 2. Even while part of the Navy its law enforcement activities would come within the statutory exception to the posse comitatus restrictions, and the restrictions applicable to components of the Department of Defense would only apply to activities beyond those authorized.

National Guard. The Act is silent as to what constitutes "part" of the Army or Air Force for purposes of proscription. There is little commentary or case law to resolve questions concerning the coverage of the National Guard, the Civil Air Patrol, civilian employees of the armed forces, or regular members of the armed forces while off duty.

Strictly speaking, the Posse Comitatus Act predates the National Guard only in name for the Guard "is the modern Militia reserved to the States by Art. I, § 8, cls.15, 16, of the Constitution" which has become "an organized force, capable of being assimilated with ease into the regular military establishment of the United States," Maryland v. United States, 381 U.S. 41, 46 (1965). There seems every reason to consider the National Guard part of the Army or Air Force, for purposes of the Posse Comitatus Act, when in federal service. When not in federal service, historical reflection might suggest that it is likewise covered. Recall that it was the state militia, called to the aid of the marshal enforcing the Fugitive Slave Act, which triggered Attorney General Cushing's famous opinion. The Posse Comitatus Act's reference to "posse comitatus or otherwise" is meant to abrogate the assertion derived from Cushing's opinion that troops could be used to execute the law as long as they were acting as citizens and not soldiers when they did so.

On the other hand, the National Guard is creature of both state and federal law, a condition which as the militia it has enjoyed since the days of the Articles of Confederation. Courts have held that members of the National Guard when not in federal service are not covered by the Posse Comitatus Act. Similarly, the DoD directive is only applicable to members of the National Guard when they are in federal service.

 

Hope these people have a good attorney.

[vontar]

 

Can a Police Officer take charge of unwilling civilians and confiscate private property if needed to quell a crime?

But this story OP posted about sounded a bit more like trying to investigate and gather evidence instead of trying to stop a crime in process.

[TripleDigitRide]

Also the 3rd Amendment only applies to the military, and not the entire military, only the Army and Air Force. When it was decided, it was decided for the Army (Land Forces) and the Air Force is covered because at ts inception it was part of the Army. The Navy and Marine Corps is not covered under the 3rd Amendment or Federal Posse Commitatus.