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,
Plaintiffs-Appellants,
versus
CITY OF LAGO VISTA; BART TUREK; and FRANK MILLER,
Chief Police Lago Vista,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
November 24, 1999
Before KING, Chief Judge, and REYNALDO G. GARZA, POLITZ, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.*
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.
I
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
1
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.
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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.
II
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,
477, 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.
3
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,
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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.
Raisor, 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 . . . .”).
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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.
4
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
5
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.,
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III
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).
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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
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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
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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
Turek.
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.
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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
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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.
I
When, as here, the facts virtually speak for themselves,
it is disappointing —— even if not surprising —— that the
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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.
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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.
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II
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
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
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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
harm.
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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
interests.
“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.
Place, 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
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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
7
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 (1996).
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
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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
punishment.
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
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
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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
tolerate.
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.
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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.
9
This is an objective standard, rather than a subjective one.
See supra note 2.
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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.
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).
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 (5th
Cir. 1995)(failure to state a claim); Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir.
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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
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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 (1995);
California v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991)). “Where that
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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 (1995)).
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,
156, 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
(1923-24).
Applied to the case at hand, it seems evident that the failure to buckle a seat-belt hardly
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conjures up images of the “violent or disorderly acts” contemplated by the common law as warranting
a full custodial arrest. See SIR WILLIAM BLACKSTONE, BLACKSTONE’S COMMENTARIES ON THE LAW
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
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decisions in Wyoming v. Houghton, -- U.S. –, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999), Wilson v.
Arkansas, 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
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), 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.
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