Atwater v. City of Lago Vista , 171 F.3d 258 ( 1999 )

  •                           UNITED STATES COURT OF APPEALS
                                       FIFTH CIRCUIT
                                              No. 98-50302
                   GAIL ATWATER, Individually; and MICHAEL HAAS, Dr, As next
                   friend of Anya Savannah Haas and Mackinley Xavier Haas,
                   Chief Police Lago Vista,
                               Appeal from the United States District Court
                                    for the Western District of Texas
                                           November 24, 1999
    EMILIO M. GARZA, Circuit Judge:
                   Chief Judge King and Judges Jolly, Higginbotham, Davis, Jones, Smith, Duhé,
    Barksdale, DeMoss, and Benavides concur in the majority opinion. Judge Parker concurs in the
    dissent of Judge Reynaldo G. Garza. Judges Reynaldo G. Garza, Politz, and Parker concur in the
    dissent of Judge Wiener. Judge Stewart dissents for the reasons set forth in the panel decision. See
    Atwater v. City of Lago Vista, 
    165 F.3d 380
     (5th Cir. 1999). Judges Reynaldo G. Garza, Politz, and
    Parker concur in the dissent of Judge Dennis.
           Plaintiffs-Appellants Gail Atwater (“Atwater”) and Michael Haas (“Haas”), as next friend of
    Anya Savannah Haas and Mackinley Xavier Haas, appealed the district court’s grant of summary
    judgment in favor of Defendants-Appellees Officer Bart Turek (“Officer Turek”), Police Chief Frank
    Miller (“Chief Miller”), and the City of Lago Vista. A panel of this court reversed in part and
    remanded. See Atwater v. City of Lago Vista, 
    165 F.3d 380
     (5th Cir. 1999), reh’g en banc granted,
    171 F.3d 258
     (5th Cir. 1999). We vacated the panel opinion, see 5th Cir. R. 41.3, and granted
    rehearing en banc.
           Officer Turek arrested Gail Atwater for failing to wear her seat belt, failing to fasten her
    children in seat belts, driving without a license, and failing to provide proof of insurance. Officer
    Turek handcuffed Atwater and took her to jail, where she spent approximately one hour. Atwater
    appeared before a magistrate and was released after posting bond.
           Atwater and her husband, Haas, subsequently brought various federal and state law claims
    against Officer Turek, Chief Miller, and the City of Lago Vista, arising out of Atwater’s arrest.1
    Officer Turek, Chief Miller and the City of Lago Vista moved for summary judgment. The district
    court granted this motion.
           A panel of this court reversed the district court’s summary judgment with respect to Atwater’s
    Fourth Amendment unreasonable seizure claim against Officer Turek and the City of Lago Vista and
                   Atwater and Haas alleged causes o f action for: (1) Deprivation of Constitutional
    Rights, (2) Excessive Use of Force, (3) False Imprisonment, (4) Inadequate Training, (5) Failure to
    Supervise, (6) Intentional Infliction of Emotional Distress, (7) Assault and Battery, (8) Grossly
    Negligent Hiring and Retention, (9) Conspiracy to Formulate and Enforce a Municipal Policy to
    Violate Constitutional Rights, and (10) Common Fund.
    concluded that Officer Turek was not entitled to qualified immunity. See Atwater, 165 F.3d at 389.2
    We granted rehearing en banc to reconsider the panel decision.
            To determine the constitutionality of an arrest, “[w]e must balance the nature and quality of
    the intrusion on the individual’s Fourth Amendment interests against the importance of the
    governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 
    471 U.S. 1
    , 8, 105 S.
    Ct. 1694, 1699, 
    85 L. Ed. 2d 1
    , __ (1985) (quotations omitted) (alteration in original). If an arrest
    is based on probable cause then “with rare exceptions . . . the result of that balancing is not in doubt.”
    Whren v. United States, 
    517 U.S. 806
    , 817, 
    116 S. Ct. 1769
    , 1776, 
    135 L. Ed. 2d 89
    , __ (1996). In
    other wo rds, when probable cause exists to believe that a suspect is committing an offense, the
    government’s interests in enforcing its laws outweigh the suspect’s privacy interests, and an arrest
    of the suspect is reasonable. See, e.g., United States v. Robinson, 
    414 U.S. 218
    , 235. 
    94 S. Ct. 467
    38 L. Ed. 2d 427
    , __ (1973) (“A custodial arrest of a suspect based on probable cause is a
    reasonable intrusion under the Fourth Amendment . . . .”).
            We deviate from this principle—that an arrest based on probable cause is reasonable under
    the Fourth Amendment—only when an arrest is “conducted in an extraordinary manner, unusually
    harmful to an individual’s privacy or even physical interests.”3 Whren, 517 U.S. at 818, 
    116 S. Ct. 2
                  The panel affirmed t he district court’s summary judgment on all other claims. See
    Atwater, 165 F.3d at 389. We reinstate this part of the panel opinion.
                    Atwater advances an alternative argument for the first time in her en banc brief. She
    argues that in determining whether her arrest violated the Fourth Amendment, we should follow the
    common law rule that existed when the Fourth Amendment was promulgated, which she claims
    limited the circumstances under which a misdemeanant could be arrested without a warrant. She did
    not raise this argument before the district court or the panel that initially considered this case.
    Instead, the panel considered this argument sua sponte, and even though it ruled in Atwater’s favor,
    at 1776, 135 L. Ed. 2d at __. For example, it is “necessary actually to perform” a balancing analysis
    notwithstanding the existence of probable cause when a search or seizure involves deadly force, an
    unannounced entry into a home, entry into a home without a warrant, or physical penetration of the
    body. See id. (reviewing cases).
           After reviewing the record, we conclude that Officer Turek had probable cause to arrest
    it declined to do so based on the common law rule. See Atwater v. City of Lago Vista, 
    165 F.3d 380
    386 (5th Cir. 1999) (noting the common law rule and stating that “[a]lthough the Fourth Amendment
    and common law do not always coincide, the Supreme Court has recognized the logic of
    distinguishing between minor and serious offenses in evaluating the reasonableness of a seizure under
    the Fourth Amendment”). Because Atwater did not properly raise this argument previously, she has
    waived her right to pursue this issue here. See Craddock Int’l Inc. v. W.K.P. Wilson & Son, Inc., 
    116 F.3d 1095
    , 1105 (5th Cir. 1997) (“To prevail on an issue raised for the first time on appeal, an
    appellant must show a plain (clear or obvious) error that affects substantial rights.”); cf. Arenson v.
    Southern Univ. Law Ctr., 
    53 F.3d 80
    , 81 (5th Cir. 1995) (per curiam) (“Appellant's request [in his
    petition for rehearing] for Title VII relief is denied because Arenson waived his Title VII claim by
    failing to seek a ruling on that issue from the Arenson I panel.”).
             Moreover, Atwater is unable to cite any cases where courts have invoked the common law
    rule to invalidate warrantless misdemeanor arrests otherwise supported by probable cause. Indeed,
    the cases uniformly uphold warrantless misdemeanor arrests where probable cause exists, even where
    variants of the common law standards to which Atwater refers are incorporated into state law and
    raised before the court. See Vargas-Badillo v. Diaz-Torres, 
    114 F.3d 3
    , 6 (1st Cir. 1997) (“To date,
    neither the Supreme Court nor this circuit ever has held that the Fourth Amendment prohibits
    warrantless arrests for misdemeanors not committed in the presence of arresting officers.”); Pyles v.
    60 F.3d 1211
    , 1215 (6th Cir. 1995) (rejecting a Fourth Amendment challenge to a
    misdemeanor arrest when probable cause existed, even though the arrest may have violated the
    plaintiff’s state right “as an alleged misdemeanant to be arrest ed only when the misdemeanor is
    committed in the presence of the arresting officer”); Fields v. City of South Houston, 
    922 F.2d 1183
    1189 (5th Cir. 1991) (upholding a misdemeanor arrest supported by probable cause and stating that
    “[t]he United States Constitution does not require a warrant for misdemeanors not occurring in the
    presence of the arresting officer”); Barry v. Fowler, 
    902 F.2d 770
    , 772 (9th Cir. 1990) (“The
    requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless
    arrest is not grounded in the Fourth Amendment.”); Street v. Surdyka, 
    492 F.2d 368
    , 371-72 (4th Cir.
    1974) (“We do not think the fourth amendment should now be interpreted to prohibit warrantless
    arrests for misdemeanors committed outside an officer's presence.”); cf. Whren, 517 U.S. at 819, 116
    S. Ct. at 1777, 135 L. Ed. 2d at __ (“Here the District Court found that the officers had probable
    cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable
    under the Fourth Amendment . . . .”).
    Atwater and that he did not conduct the arrest in such an “extraordinary manner.” Neither party
    disputes that Officer Turek had probable cause to arrest Atwater. Atwater admits that she was not
    wearing her seat belt and that she had not belted in her children. Operating a motor vehicle without
    wearing a seat belt violates Texas law,4 and Officer Turek had discretion to arrest Atwater without
    a warrant, see Tex. Transp. Code § 543.001; United States v. Wadley, 
    59 F.3d 510
    , 512 (5th
    Cir.1995) (“Probable cause for a warrantless arrest exists when the totality of facts and circumstances
    within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to
    conclude that the suspect had committed or was committing an offense.”). Moreover, there is no
    evidence in the record that Officer Turek conducted the arrest in an “extraordinary manner, unusually
    harmful” to Atwater’s privacy interests. Whren, 517 at 818, 116 S. Ct. at 1776, 135 L. Ed. 2d at __.
    The only physical contact between Officer Turek and Atwater occurred when he placed her in
    handcuffs. Atwater admits that she did not suffer any physical harm during or as a result of the arrest.
    We therefore conclude that, because it was based on probable cause and because it was not
    conducted in the above-described “extraordinary manner,” Officer Turek’s arrest of Atwater was
    reasonable under the Fourth Amendment.5 See id.
                   Section 545.413 of the Texas Transportation Code provides:
          (a) A person commits an offense if the person:
           (1) is at least 15 years of age;
           (2) is riding in the front seat of a passenger car while the vehicle is being operated;
           (3) is occupying a seat that is equipped with a safety belt; and
           (4) is not secured by a safety belt.
    TEX. TRANS. CODE ANN. § 545.413
                     Having concluded that Officer Turek’s arrest of Atwater did not violate the Fourth
    Amendment, we need not address whether Officer Turek is entitled to qualified immunity. See, e.g.,
    Channer v. Hall, 
    112 F.3d 214
    , 219 n.8 (5th Cir. 1997) (“Because we hold that Channer's Thirteenth
    Amendment rights were not violated, we do not reach the issue of qualified immunity.”). Nor do we
    discuss the liability of the City of Lago Vista. See Doe on Behalf of Doe v. Dallas Indep. Sch. Dist.,
           Accordingly, we AFFIRM the district court’s summary judgment.
    153 F.3d 211
    , 216 (5th Cir. 1998) (“Thus, § 1983 municipal liability may be imposed when (1) the
    enforcement of a municipal policy or custom was (2) ‘the moving force’ of the violation of federally
    protected rights.”) (quotations omitted).
    REYNALDO G. GARZA, Circuit Judge, dissenting:
           I believe that the original opinion of the panel that I was on, which can be found at 165
    F.3d, 380 (5th Cir. 1999), is sufficient to show that the seizure and handcuffing of Mrs. Atwater
    in this case was unreasonable and uncalled for.
           I write separately in dissent because I believe that our colleagues in the majority are
    wrong in not dividing an arrest or a stop and a seizure of the person arrested or stopped.
           We have of necessity to keep in mind that this was a traffic stop or arrest of Mrs. Atwater
    for failure to have her seatbelt or her children’s seatbelts on when stopped. As pointed out by
    my colleague, Judge Parker, and author of the original opinion, Mrs. Atwater’s seatbelt offense
    was a misdemeanor for which she could be fined up to $50 and no more. Her offense would in
    no way have been a danger to any one else, but herself and her children.
           I have been a Texas lawyer for over sixty years and an Article III Federal Judge in Texas
    for over thirty-eight years. I think that I can take judicial notice of the fact that in a regular
    traffic stop; when a person runs a red light, makes a wrong turn, is speeding, or in this case is
    not wearing a seatbelt, the usual procedure for the officer making the stop or the arrest is to give
    the accused a citation, which shows the charge against the person driving the car, a notice to
    appear before a municipal judge on a certain day at a certain time and signed by the accusing
    officer; which also adds a paragraph that is signed by the accused that they agree to appear on
    the date and time stated and that is the end of the story.
           There are times when during a traffic stop an officer finds that the driver for instance, is
    driving while under the influence of either alcohol or drugs; the officer sees a gun on the seat
    of the car; the car smells of marihuana; the officer sees packages of cocaine or some other
    reason, like a check of the license number of the person stopped shows that the person is a
    fugitive or has another charge pending; in which case the officer that made the stop seizes the
    person and takes him or her to the police station to await being taken before a Magistrate, where
    the officer makes the complaint against the person and the Magistrate then sets a bond or refuses
    to allow one, whichever he chooses.
           There is no evidence in our case that there was any reason for Mrs. Atwater to be seized
    and taken to the police station where she waited for an hour for a Magistrate to release her.
           The majority setting aside the panel opinion makes no mention of an affidavit that is in
    the Record Excerpts of appellants, Gail Atwater and her husband, on behalf of two of their
    children. The affidavit is that of Keith A. Campbell, who was a member of the Recruitment
    Unit of the Austin Police Department from August 1994 to March 1997. In the affidavit he
    makes mention of all the things he did when screening applicants for positions in the Austin
    Police Department. Mr. Campbell states he has reviewed the personnel file of Michael Barton
    Turek and he can state without reservation that he would not have recommended this individual
    to be hired by the Austin Police Department for the following reasons:
             1.     Lack of maturity based on his own explanations of changes in
                    employment in the “reasons for leaving” sub-sections of each
                    employer’s identification.
             2.     Failed two of three reported psychological tests at A.P.D.
             3.     Failed to provide complete information.
             Mr. Campbell’s affidavit is an eye-opener of the kind of person Officer Turek, who saw
    fit to handcuff Mrs. Atwater behind her back for not wearing her seatbelt, is. Mrs. Atwater and
    her husband have sued the City of Lago Vista for its unreasonable hiring and lack of training of
             Under Texas law, the City of Lago Vista is not responsible for the actions of their police
    officers unless they violate somebody’s Constitutional Rights. Our colleagues in the majority
    seem to think that if an officer has probable cause to make a stop and an arrest it immunizes
    them to where they can do whatever they please. This approach is wrong because in my view,
    probable cause will never immunize a constitutional violation.
           Officer Turek had probable cause to stop the car that was being driven by Mrs. Atwater
    for failure to have her seatbelt on, but he should have given her a citation to appear instead of
    seizing her, putting handcuffs behind her back, and taking her to the police station. He would
    have taken her children with her except that a neighbor that came on the scene took the children
    to her home.
           I strongly believe that my duty under the oath that I have taken, once as a United States
    District Judge, then as an Appellate Judge, is to uphold the Constitution and Laws of the United
    States. Under Article IV of the Amendments to the Constitution, the seizure is different then
    the stop and the arrest of Mrs. Atwater was unreasonable and therefore a violation of the
    Constitution of the United States. I cannot see why some of my colleagues are unwilling to say
    that the seizure by Officer Turek was unreasonable.
    WIENER, Circuit Judge, dissenting:
           Today a majority of this court announces that any full
    custodial arrest, replete with transportation to jail and
    booking, is per se a reasonable seizure within the meaning of
    the Fourth Amendment as long as the arresting officer has
    probable cause to believe that the individual being arrested
    has violated the law —— any law, even an innocuous traffic
    ordinance.     Not only does this holding ignore the Supreme
    Court’s longstanding pronouncements that every Fourth Amendment
    analysis must turn on a tripartite balancing of individual
    interests, government interests, and the degree of certainty
    that the government interest will be furthered by the search
    or seizure at issue, but it also turns a blind eye on the
    extreme facts of this case; facts that so clearly demonstrate
    an unreasonable seizure that those of my colleagues who concur
    in the majority opinion should have been tipped off that
    something must be critically awry with its reasoning.      The
    result reached is so counterintuitive that it cries out for a
    deeper look.     As the Fourth Amendment requires that every
    seizure must be effected pursuant to a legitimate governmental
    interest, and as the only conceivable reason for the full
    custodial arrest at issue here was Officer Turek’s illegitimate
    desire to punish Atwater, I respectfully dissent.
        When, as here, the facts virtually speak for themselves,
    it is disappointing —— even if not surprising —— that the
    majority opinion goes out of its way to sanitize them.              The
    instant facts reveal that this case is not truly about a
    traffic stop followed by an arrest; it is about a police
    officer going to extreme lengths to satisfy a personal crusade
    or possibly even a vendetta.       The evidence would allow a jury
    reasonably   to   infer   that   Officer   Turek   had   been   eagerly
    awaiting the opportunity to threaten, frighten, and humiliate
    Gail Atwater:     Approximately two months prior to the incident
    in question, Officer Turek had pulled Atwater over for a
    putative seatbelt violation; however, much to his dismay, he
    had been forced to let her drive off without his issuing her
    a citation when he discovered that she and the other occupants
    of her car had their seatbelts securely fastened.
        Officer Turek’s frustration over this prior incident was
    made readily apparent from the very beginning of the traffic
    stop and arrest that are now under review.          When Atwater was
    pulled over this time, she was driving her two children, ages
    six and four, home from soccer practice.       She was traveling in
    a residential neighborhood, on bone-dry streets, in broad
    daylight, and at a reasonable, lawful rate of speed.               When
    Officer Turek observed that neither Atwater nor her children
    were wearing seatbelts, he proceeded to pull her car over.
    According to the testimony, Officer Turek approached Atwater’s
    car and yelled at her in a belligerent and threatening manner,
    pointing his finger menacingly in Atwater’s face and terrifying
    her and her young children.      Officer Turek screamed that they
    had “had this conversation before” and that this time she
    (Atwater) was going to jail.
        Officer Turek then ordered Atwater to produce her driver’s
    license and proof of insurance. Atwater informed him that both
    documents had been in her purse when it was stolen two days
    earlier. She did, though, provided him with her license number
    and address from her checkbook.         Despite the fact that Officer
    Turek   had   seen   Atwater’s   driver’s     license   and   proof   of
    insurance when he had pulled her over only weeks earlier, he
    proceeded to make good on his promise to take her to jail.
    First, he had her step out of her car; next, he handcuffed her
    behind her back; then he loaded her into the back of his squad
    car and took her to the police station; and there she was
    forced to remove her shoes and glasses, empty her pockets, and
    allow her “mug shot” to be taken.        Finally, Atwater was placed
    in a jail cell and made to wait for approximately one hour
    before being produced before a magistrate.
         The law is long and well established that, under the
    Fourth Amendment, the scope of a search or seizure “must be
    strictly tied to and justified by the circumstances which
    rendered its initiation permissible.”             Terry v. Ohio, 
    392 U.S. 1
    , 19 (1968) (citation omitted).            Implicit in this simple but
    forceful    statement     of   the    law   ——    and   explicit   in   its
    application by the Supreme Court to a broad panoply of cases
    —— is the precept that the permissibility of any search or
    seizure    depends   on   a    balancing     of   (1)   the   government’s
    purported interest in effecting the search or seizure, (2)
    discounted by the degree of certainty that the search or
    seizure will in fact further the government’s interest, against
    (3) the extent of any infringement on the targeted individual’s
    constitutionally protected privacy and liberty interests.6
          Thus, the Supreme Court has held that the government’s
    interest in protecting police officers is sufficient to justify a
    limited “stop and frisk” of an individual when supported by
    reasonable suspicion that the individual is carrying a weapon.
    Terry, 392 U.S. at 27.     But the same governmental interest is
    insufficient to justify the “wholly different kind of intrusion”
    involved in an arrest absent a greater degree of certainty ——
    namely, probable cause —— that the seizure will vindicate the
    governmental interest in question. Id at 26.
         Similarly, although reasonable suspicion is sufficient to
    justify a “stop and frisk” for the purpose of protecting the
    police, the same quantum of certainty is insufficient to justify a
    “stop and frisk” for the less important and more generalized
    governmental interest in investigating and preventing crime. Id at
    22-23, 26-27 (holding that a generalized interest in crime
            The problem I perceive with the majority opinion is that
    its   analysis   focuses    solely   on   the   quantum   of    certainty
    involved in the case, to the exclusion of the other two
    relevant variables: the importance of the government’s interest
    and the extent of the intrusion on the individual’s liberty and
    privacy interests.     This is all the more regrettable in light
    of the fact that quantum of certainty is not even at issue
    here:    Atwater concedes that Officer Turek had probable cause
    to believe that she had broken the law by failing to wear a
    seatbelt.      Indeed, Atwater further acknowledges that the
    government’s     interest   in   enforcing      the   traffic   laws   was
    sufficient to justify Officer Turek’s decision, based on
    probable cause, to effect a traffic stop, and that the same
    interest would have justified his issuing her a citation. What
    Atwater vehemently denies, though, is that the government had
    prevention justifies “approach[ing] a person for purposes of
    investigating possibly criminal behavior,” but that it is “the more
    immediate interest of the police officer in taking steps to assure
    himself that the person with whom he is dealing is not armed with
    a weapon” that supplies the justification for the intrusion
    involved in a stop and frisk). The Supreme Court applied the same
    framework in Tennessee v. Garner, 
    471 U.S. 1
     (1985), when it held
    that the government’s interest in enforcing the criminal laws is
    sufficient to justify an arrest that is supported by probable cause
    to believe that a suspect has committed a burglary, but that the
    government cannot employ the more extreme form of seizure involved
    in the use of deadly force absent the more important governmental
    interest of protecting the public from the threat of serious bodily
    any legitimate interest whatsoever —— whether on the basis of
    reasonable    suspicion,     probable     cause,    or   even   absolute
    certainty    ——   in   effecting   her    full   custodial   arrest   and
    transporting her to jail when the issuing of a citation would
    have fully protected and vindicated all of the government’s
        “The Fourth Amendment proceeds as much by limitations upon
    the scope of governmental action as by imposing preconditions
    upon its initiation.”      Id. at 28-29; see also United States v.
    462 U.S. 696
    , 707-08 (1983). The mere fact that Officer
    Turek was justified in pulling Atwater over, and would have
    been justified in issuing her a citation, does not necessarily
    mean that he was justified in taking the far more intrusive
    step of effecting her full custodial arrest, complete with
    behind-the-back handcuffing, transporting to jail, and booking.
    “In justifying [a] particular intrusion [a] police officer must
    be able to point to specific and articulable facts which, taken
    together with rational inferences from those facts, reasonably
    warrant that intrusion.”       Terry, 392 U.S. at 21.           In other
    words, to justify each successive, increasingly stringent
    intrusion on an individual’s liberty and privacy interests, a
    police officer must at a minimum be able to articulate some
    reason why it was necessary to effect the further intrusion.
    The articulated reason does not need to be independent of the
    reasons that justify the initial intrusions: “The test is
    whether those interests are sufficiently substantial, not
    whether they are independent of the interest in investigating
    crimes effectively and apprehending suspects.” Place, 462 U.S.
    at 704. But if the identified reasons for both the initial and
    the successive intrusions are the same, a police officer must
    be   able   to    advance   a   plausible    claim   that   the   initial
    intrusions       were   inadequate   fully   to   serve   the   proffered
    governmental interests.7        If the officer cannot plausibly make
    that claim —— in other words, if there were no legitimate
    reasons for the further intrusions —— then the heightened
    intrusions are by definition “unreasonable.”
         I agree with the majority that the courts should avoid
    getting into the business of micro-managing arrests.              I do not
    agree, however, that a jurisprudence that is faithful to the
    fundamental principles of the Fourth Amendment —— and that thus
           This is an objective standard rather than a subjective one.
    See Whren v. United States, 
    517 U.S. 806
    , 814 (1996) (“[T]he Fourth
    Amendment’s concern with 481 U.S. 739
    , 745
    (1987); need to interrogate an individual or search him for
    evidence, see New York v. Harris, 
    495 U.S. 14
     (1990); and need
    to protect the community from any threat that an individual
    poses to its safety, see generally Bass v. Robinson, 
    167 F.3d 1041
    , 1045 (6th Cir. 1999); Dunn v. Denk, 
    79 F.3d 401
    , 408 (5th
    Cir. 1996), cert. denied, 
    519 U.S. 813
        Clearly, none of these or other similar reasons are
    applicable to Officer Turek’s arrest of Atwater.      She is a
    local resident, well-known to Officer Turek.      There is no
    indication that she posed even a minimal flight risk.      The
    evidence amply demonstrates that she did not pose any threat
    to the officer or the community.     And there was no need to
    conduct any further investigation, as the full extent of
    Atwater’s violation of the seatbelt law had already been
    clearly ascertained. By this process of elimination, then, the
    one and only conclusion that can be reached on the evidence is
    that the sole reason Officer Turek arrested Atwater was his
    determination to inflict punishment on her, above and beyond
    the $50.00 fine prescribed by Texas law.         Not only is the
    arresting     officer’s    personal     desire   to     punish   a
    constitutionally illegitimate reason under the Fourth Amendment
    for effecting a seizure; it is also, at least potentially, an
    independent violation of the Fifth and Fourteenth Amendments,
    which permit the infliction of punishment only after a formal
    adjudication. See Bell v. Wolfish, 
    441 U.S. 520
     (1979); Kenedy
    v. Mendoza-Martinez, 
    372 U.S. 144
     (1963); Valencia v. Wiggins,
    981 F.2d 1440
     (5th Cir. 1993).    Allowing Officer Turek to skate
    here gives the officer on the street carte blanche to be a one-
    person cop cum judge cum jury cum executioner:        In effect, he
    can arrest, charge, try, convict, and both assess and inflict
         The desire of the majority of my esteemed colleagues to
    arrive at a simple, bright-line rule that can be easily applied
    by officers in the field is both understandable and laudable.8
           The majority claims that its holding is mandated by language
    found in Whren, 517 U.S. at 818 (“Where probable cause has existed,
    the only cases in which we have found it necessary actually to
    perform the ‘balancing’ analysis involved searches or seizures
    But such “a rigid all-or-nothing model of justification and
    regulation under the Amendment” ignores the complexity of real-
    world   events    and   thus    fails      to   remain   faithful   to   the
    fundamental principles underlying the Fourth Amendment.                  See
    Terry, 392 U.S. at 17.         It also has the unfortunate effect of
    licensing the admittedly rare rogue patrol officer to inflict
    vigilante punishment on a citizen under the guise of an arrest
    —— a state of affairs that the Constitution clearly does not
         The rule that I would apply to this case has the virtue of
    being just as simple as the majority’s, and thus just as easy
    for the police to apply in the myriad complex and confusing
    situations that they regularly encounter, without, however,
    jettisoning the fundamental principles embodied in the Fourth
    Amendment.       Simply stated:         Before a police officer can
    conducted in an extraordinary manner, unusually harmful to an
    individual’s privacy or even physical interests”). Not only is
    this language dicta, however —— the Whren court was assessing the
    validity of a traffic stop, not a full custodial arrest —— but it
    arguably supports my position rather than the majority’s.
    “Extraordinary” is defined in Webster’s Dictionary as “going beyond
    what is usual, regular, or customary.”      WEBSTER’S SEVENTH NEW
    COLLEGIATE DICTIONARY 296 (1965). Of course, what qualifies as
    “usual, regular, or customary” is entirely dependent on the
    circumstances; an action that would be deemed an extraordinary
    response to one set of facts might be thought quite ordinary and
    commonplace if the facts were different. It need hardly be said
    that a full custodial arrest, complete with behind-the-back-
    handcuffing, transporting to jail, and booking, is an extraordinary
    response to a local mother’s daytime seatbelt violation.
    constitutionally place an individual under full custodial
    arrest, even with probable cause, the officer must have a
    plausible, articulable reason for effecting such an intrusion
    —— a reason other than a desire on the part of the officer to
    punish the individual for his or her conduct.9        This is hardly
    a burdensome imposition on the police; I cannot see any reason
    for the police to complain about having to articulate some
    manner of justification for the significant intrusion on Fourth
    Amendment privacy and liberty interests inherent in effecting
    any full custodial arrest.
          Try as I may, I can discern no legitimate justification
    whatsoever for Officer Turek’s lamentable decision to arrest,
    handcuff, transport, book, and jail Atwater; conversely, I see
    every indication that Officer Turek’s sole purpose in doing so
    was       unilaterally   to   inflict    an   illegitimate   ——   and
    unconstitutional —— punishment on her.         For these reasons, I
    must respectfully dissent.
          This is an objective standard, rather than a subjective one.
    See supra note 2.
    DENNIS, Circuit Judge, dissenting:
           I respectfully dissent.
           The majority opinion does not address an important constitutional issue raised by this case,
    discussed extensively at oral argument, and fully considered by the en banc court: whether the Fourth
    Amendment, by incorporating the common law at the time it was framed, prohibits, as an
    unreasonable seizure, the warrant less full custodial arrest of an individual for a fine-only criminal
    misdemeanor that does not constitute or involve a breach of the peace.
           The Supreme Court granted certiorari in order to consider this very issue in Ricci v.
    Arlington Heights, 
    116 F.3d 288
     (7th Cir. 1997), cert. granted, 
    118 S. Ct. 679
    139 L. Ed. 2d 627
    , and
    cert. dismissed, 
    523 U.S. 613
    118 S. Ct. 1693
    140 L. Ed. 2d 789
     (1998). However, after oral
    argument the writ of certiorari was dismissed as improvidently granted. See Ricci v. Village of
    Arlington Heights, 
    523 U.S. 613
    118 S. Ct. 1693
    140 L. Ed. 2d 789
     (1998). The Supreme Court oral
    argument transcripts in Ricci suggest that the Court dismissed certiorari as improvidently granted
    only because the Court learned for the first time at oral argument that the issue was not actually
    presented because Ricci’s arrest had been based on the violation of a civil business license ordinance
    rather than a criminal misdemeanor offense. Oral Argument Before the Supreme Court of the United
    States (
    1998 WL 204590
    ) at 57-64, Ricci v. Arlington Heights, 
    116 F.3d 288
     (7th Cir. 1997), cert.
    118 S. Ct. 679
    139 L. Ed. 2d 627
    , and cert. dismissed, 
    523 U.S. 613
    118 S. Ct. 1693
    140 L. Ed. 2d 789
     (1998) (No. 97-501).
           The district court’s granting of the defendants’ Rule 12(b)(6) and Rule 56 motions is reviewed
    de novo by this court of appeals. See McConathy v. Dr. Pepper/Seven Up Corp., 
    131 F.3d 558
    Cir. 1995)(failure to state a claim); Montgomery v. Brookshire, 
    34 F.3d 291
    , 294 (5th Cir.
    1994)(summary judgment). In accordance with FED. R. APP. P. 3 and 28, the appellant adequately
    noticed and argued to this court the issue of whether the warrantless full custodial arrest of a person
    for violation of a fine-only criminal misdemeanor seat-belt law, involving no breach of the peace,
    violates that person’s Fourth Amendment rights.
            The foregoing question of law is the only issue presented by this appeal. The district court
    concluded that the plaintiffs “have not provided evidence of any violation of a constitutional right,
    much less a violation of a clearly established constitutional right.” The district court based its ruling
    primarily on the specific finding that the “only alleged ‘force’ and ‘imprisonment’ arose out [of]
    Turek’s arrest of Atwater for the seat belt violations as clearly authorized by Texas law.”
            For purposes of the motion for summary judgment, the district court found that Turek,
    immediately upon stopping Atwater, yelled at her, “We’ve met before!” and “You’re going to jail!”
    Based upon these findings and the evidence, it reasonably can be inferred that Turek initially placed
    Atwater in full custodial arrest based only on the seat belt violations and called for a back up to assist
    him in his seizure of Atwater, her children, and her vehicle. Consequently, this appeal does not raise
    the question of whether Turek constitutionally could have made a full custody arrest of Atwater for
    the additional charges he sometime later filed against her of failure to provide proof of insurance and
    failure to have her driver’s license in her possession. Moreover, the failure to provide evidence of
    insurance or financial responsibility in itself is not a crime or offense under Texas law. See TEX.
    TRANSP. CODE § 601.053 (West 1999); Op. Tex. Atty. Gen. 1983, No. MW-577. The failure to carry
    or exhibit a driver’s license is a fine-only, non-peace breaching misdemeanor, if, as in this case, it is
    not a third or subsequent conviction within one year after the date of the second such conviction. See
    TEX. TRANSP. CODE § 521.025. Finally, because Turek recently before had stopped Atwater and had
    examined her driver’s license and evidence of insurance, there is a genuine factual dispute, not
    amenable to summary judgment, as to whether Turek had probable cause to file the additional charges
    against Atwater, which were summarily dismissed the same day by the magistrate.
           I cannot join the majority opinion because it does not acknowledge or address the arguments
    in favor of the proposition that an unnecessary full custodial arrest of a person for a fine- only
    criminal misdemeanor involving no breach of the peace is an unreasonable seizure against which the
    people have been guaranteed a right to be secure in their persons by the Fourth Amendment. Those
    arguments were set forth fully and very persuasively by the briefs of the petitioner and his amici in
    Ricci. See, e.g., Petitioner’s Brief (
    1998 WL 74152
    ), Reply Brief of Petitioner (
    1998 WL 167353
    Brief of the American Civil Liberties Union and the ACLU of Illinois in Support of Petitioner (
    1998 WL 77846
    ), Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in
    Support of Petitioner (
    1998 WL 77850
    ), Brief of the Institute for Justice as Amicus Curiae in
    Support of Petitioner (
    1998 WL 77847
    ), Ricci v. Arlington Heights, 
    116 F.3d 288
     (7th Cir. 1997),
    cert. granted, 
    118 S. Ct. 679
    139 L. Ed. 2d 627
    , and cert. dismissed, 
    523 U.S. 613
    118 S. Ct. 1693
    140 L. Ed. 2d 789
     (1998) (No. 97-501). In summary, I read the arguments to be as follows:         The
    Fourth Amendment provides that “[t]he right of the people to be secure in their persons... against
    unreasonable... seizures, shall not be violated[.]”      When determining whether a particular
    governmental action violates the Fourth Amendment, the Supreme Court has said that the first inquiry
    is whether the action was regarded as an unlawful search or seizure under the common law when the
    amendment was framed. See Wyoming v. Houghton, -- U.S. --, 
    119 S. Ct. 1297
    , 1300, 
    143 L. Ed. 2d 408
     (1999) (citing Wilson v. Arkansas, 
    514 U.S. 927
    , 931, 
    115 S. Ct. 1914
    131 L. Ed. 2d 976
    California v. Hodari D., 
    499 U.S. 621
    , 624, 
    111 S. Ct. 1547
    113 L. Ed. 2d 690
     (1991)). “Where that
    inquiry yields no answer, we must evaluate the search or seizure under traditional standards of
    reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s
    privacy and, on the other, the degree to which it is needed for the promotion of legitimate interests.”
    Houghton, 119 S.Ct. at 1300 (citing, e.g., Vernonia School Dist. 47J v. Acton, 
    515 U.S. 646
    , 652-53,
    115 S. Ct. 2386
    132 L. Ed. 2d 564
           The common law prohibited the warrantless arrest of an individual for a misdemeanor unless
    it involved a breach of the peace. As the Supreme Court in Carroll v. United States, 
    267 U.S. 132
    45 S. Ct. 280
    69 L. Ed. 543
     (1925) stated:
                   'In cases of misdemeanor, a peace officer like a private person has at common
                   law no power of arresting without a warrant except when a breach of the
                   peace has been committed in his presence or there is reasonable ground for
                   supposing that a breach of peace is about to be committed or renewed in his
                   presence.' Halsbury's Laws of England, vol. 9, part. III, 612.
                   The reason for arrest for misdemeanors without warrant at common law was
                   promptly to suppress breaches of the peace (1 Stephen, History of Criminal
                   Law, 193), while the reason for arrest without warrant on a reliable report of
                   a felony was because the public safety and the due apprehension of criminals
                   charged with heinous offenses required that such arrests should be made at
                   once without warrant (Rohan v. Sawin, 5 Cush. [Mass.] 281).
    While the term “peace of the king” at common law meant, in one sense, the “law and sovereignty”
    of the king in general, with regard to a peace officer’s power of arrest the term denoted “some violent
    or disorderly act causing public alarm or disturbance....” 2 ENCYCLOPEDIA OF THE LAWS OF ENGLAND
    436-37 (E.A. Jelf ed., 3d ed. 1938). The misdemeanors for which common law allowed custodial
    arrest were serious offenses, including assaults and other dangero us and disruptive acts, or public
    disturbances. See Horace L. Wilgus, Arrest Without a Warrant, 22 MICH. L. REV. 541, 572-77
           Applied to the case at hand, it seems evident that the failure to buckle a seat-belt hardly
    conjures up images of the “violent or disorderly acts” contemplated by the common law as warranting
    811 (Bernard C. Gavit ed. 1892) (listing offenses against the public peace as riotous assemblages,
    unlawful hunting, threatening letters, destruction of locks or flood-gates, and affrays). Gail Atwater’s
    infraction of the Texas fine-only criminal misdemeanor seat-belt law did not constitute or portend any
    disturbance that would even approach a breach of the peace under the common law when the Fourth
    Amendment was framed. Therefore, the initial inquiry required by the Supreme Court’s decisions
    yields the answer that Turek’s full custodial arrest of Atwater for that infraction violated her right
    under the Fourth Amendment to be secure in her person against unreasonable seizures.
            Even if the historical evidence were thought to be equivocal, see Houghton, 119 S.Ct. at
    1302, the panel opinion in this case demonstrates that the balancing of the relative interests weighs
    decidedly in favor of protecting the personal privacy and personal dignity of an individual from an
    intrusion that must surely be an annoying, frightening, and humiliating experience. See Atwater v.
    City of Lago Vista, 
    165 F.3d 380
     (5th Cir. 1999). In this case in which there is substantial and perhaps
    conclusive evidence that the governmental action would have been regarded as an unlawful search
    or seizure under the common law when the amendment was framed, the panel opinion also is very
    persuasive in its evaluation of the seizure under the traditional standards of reasonableness and its
    conclusion that the degree to which the seizure intrudes upon an individual’s privacy and dignity
    undoubtedly outweighs the degree to which it is needed for the promotion of legitimate governmental
    interests. Id.
            The majority opinion affirms the district court’s summary judgment without undertaking the
    first or the second inquiry demanded of us by the Fourth Amendment and the Supreme Court’s
    decisions in Wyoming v. Houghton, -- U.S. –, 
    119 S. Ct. 1297
    143 L. Ed. 2d 408
     (1999), Wilson v.
    514 U.S. 927
    115 S. Ct. 1914
    131 L. Ed. 2d 976
     (1995) and California v. Hodari D., 
    499 U.S. 621
    111 S. Ct. 1547
    113 L. Ed. 2d 690
     (1991). The Supreme Court’s reaffirmation of our duty
    to make these inquiries subsequent to its decision in Whren v. United States, 
    517 U.S. 806
    116 S. Ct. 1769
    135 L. Ed. 2d 89
     (1996), and the Supreme Court’s recent willingness to examine the issue of
    warrantless custodial arrests for peace-breachless fine-only misdemeanors in Ricci v. Arlington
    116 F.3d 288
     (7th Cir. 1997), cert. granted, 
    118 S. Ct. 679
    139 L. Ed. 2d 627
    , and cert.
    523 U.S. 613
    118 S. Ct. 1693
    140 L. Ed. 2d 789
     (1998), convinces me that the majority
    is mistaken in assuming that our obligation to carefully scrutinize intrusions upon the right of the
    people to be secure in their persons has been totally displaced by a simple Whren probable cause
    matrix. Accordingly, because the majority used an inappropriate truncated analysis to reach what
    appears to be an incorrect result, I respectfully dissent.