No one disputes the fact that seat belts save lives.  Most states, therefore, have buckle-up laws that make it a misdemeanor to drive with being properly belted.  However, in Texas, the Transportation Code not only permits a police officer to stop a driver for the non-use of seat belts, it also permits the officer to arrest the driver for violating that law.

Gail Atwater was one of those unfortunate Texans.  We turn now to the facts in Atwater v. City of Lago Vista, 165 F.3d 380 (5th Cir. 1999).

The Atwaters are long-term residents of Lago Vista, Texas.  On a spring afternoon Gail Atwater was bringing her children home from soccer practice.  She was driving 15 mph in a residential neighborhood when she was stopped by Officer Bart Turek.  When Turek pulled her over, Atwater remained in her pick-up truck.  Turek approached the driver’s window and jabbed his finger toward Atwater’s face, screaming that he had either met her before or that he had this conversation before.  (In fact, Turek had stopped Atwater several months prior to this incident for allowing her son to sit on a front seat arm rest, but the child was wearing a seat belt.  At that time Turek did not issue a citation).

Remaining composed, Atwater calmly advised Turek to lower his voice, but this reprimand only incited Turek who proceeded to raise his voice by at least an octave, telling Atwater she was going to jail! Turek continued his tirade of verbal abuses, accusing Atwater of not caring for her children since she permitted them to ride without seat belts. When Turek demanded to see Atwater’s driver’s license and insurance card, Atwater said she did not have them with her because they were in her purse which had been stolen earlier in the week.  Turek responded by calling Atwater a liar.  She eventually supplied Turek with proper identification which she had written down in her check book.

As you can imagine, a crowd of pedestrians and rubber-neckers stopped to witness the scene, among them Atwater’s friends and neighbors from the community.  Atwater asked Turek whether she could take her children to a friend’s house rather than to the jail, but Turek adamantly refused.  Fortunately for the children, a friend came forward and rescued the youngsters.

Under Texas law, Officer Turek could have issued a traffic citation to Gail Atwater if she had signed a promise to appear.  Instead he chose to handcuff her with her hands behind her back, load her into his squad car, and rush her off to the police station.  Once at the station, Atwater was required to empty her pockets, remove her glasses and shoes, and have her photograph taken.  She was then taken to a jail cell where she remained for an hour before being taken before a magistrate.

Gail Atwater pleaded no contest to not wearing a seat belt and permitting her children to do the same.  The charges of driving without a license and insurance were dismissed.  Atwater claimed the incident caused her and the children great emotional distress and anxiety.  Furthermore, her children required counseling, and she had been prescribed medication for nightmares, insomnia and depression resulting from the incident.
  
Atwater’s husband, an emergency room physician at a local hospital, brought this civil suit against the police chief, the City of Lago Vista and Officer Turek alleging violations of Atwater’s Fourth Amendment rights to be free from unreasonable searches and seizures and excessive force and punishment as well as her right to due process under the Fifth and Fourteenth Amendments.  Additionally, Atwater also brought state law claims for false imprisonment and intentional infliction of emotional distress.  A claim for intentional infliction of emotional distress was also brought on behalf of the children.

Lago Vista’s policy for enforcement of traffic violations permits the use of custodial arrests to promote the goals of compliance with traffic ordinances.  This policy specifically leaves it to the officer’s discretion whether or not to take a motorist into custody for traffic violations, and according to the police, encourages the very conduct engaged in by Officer Turek. Thus, when the defendants filed a motion to dismiss, or in the alternative a motion for summary judgment, the district court granted summary judgment, in part on the basis of qualified immunity.  The court held that Atwater had not identified a constitutional right that had been violated, and that the individual defendants had not acted in an unreasonable manner.  Further, the district court granted summary judgment on the state law claims as well.  An appeal followed.
 
Gail Atwater’s Fourth Amendment unreasonable seizure claim was dismissed by the district court because her complaint  did not state with particularity what conduct violated which provision of the Constitution.  According to the Fifth Circuit Court of Appeals,  however, this reasoning simply missed the mark.  Atwater alleged that Officer Turek stopped her for not wearing  a  seat belt,  and  not  having  her  children  properly buckled-up.  Further, she alleged that the officer began yelling at her and told her she was going to jail.  The officer proceeded to handcuff her, took her to jail and locked her in a cell for a mere seat belt violation.  Does this not constitute an unreasonable seizure under the Fourth Amendment?

On the issue of qualified immunity for Officer Turek, the test for determining whether an official is entitled to such immunity consists of a two-step process which requires the court to determine (1) whether the plaintiff has alleged a violation of a clearly established constitutional right, and (2) whether the official’s conduct was objectively reasonable in light of clearly established law as it existed at the time of the conduct in question.  Although Gail Atwater conceded that Officer Turek had probable cause to stop her for failure to wear a seat belt, she challenged the reasonableness of her arrest for violation of the Texas seat belt law under the Fourth Amendment.

Our  own best guess is that Officer Turek was having a real bad day.  The Court of Appeals for the Fifth Circuit could find no clearly established law. There was not a single case in which a court has been asked to consider a police officer’s action of arresting, handcuffing, booking, and dragging a first-time seat belt violator to jail.  Or, if there were such cases, the court conceded that the victims were either without resources to call the officer’s hand or simply chose to avoid any further involvement with a justice system so lacking in common sense and reasonableness.

Citizens have the right to be free from unreasonable seizures.  Even where there is probable cause to believe an offense has been committed, any seizure which is conducted in an extraordinary manner or which constitutes an extreme practice must meet the reasonableness requirement of the Fourth Amendment.

 The Texas seat belt law is an ordinance which normally exposes the offender to a fine.  These kinds of laws are paternalistic in that they are designed to protect a person from his own conduct, conduct which does not pose a threat to the public at large.  Contrast this type of paternalistic statute with most traffic laws, the violation of which can have an immediate impact on other citizens using the streets and roadways.  Thus, to determine the reasonableness of Officer Turek’s actions, it is necessary to understand the nature of the offense and whom the law is designed to protect. That knowledge helps the court to weigh the governmental interest in arresting a violator versus the individual’s privacy interest under the Fourth Amendment.

Gail Atwater’s driving of a vehicle without a seat belt violated the Texas Transportation Code.  This is a misdemeanor punishable by a fine of not less than $25, nor more than $50.  No jail term is provided in this statute.  Under the Texas Code an officer has discretion to allow the motorist to secure release upon signing a written promise to appear in court. Once the citation is signed, the officer is obliged to release the motorist and can no longer make a custodial arrest..

The state statute also provides that persons "may" be arrested for seat belt violations, but it does not provide that in all circumstances an arrest is appropriate.  Clearly, said the court, a statute that authorizes arrest for a mere seat belt violation in every instance would be subject to serious Fourth Amendment challenge.

Despite these considerations, Officer Turek argued that his actions were justified solely because he had probable cause to believe a seat belt violation had occurred, and that the Texas statute authorizes the arrest.  Does this reasoning bring to mind a similar case of faulty logic?

Recently, in Knowles v. Iowa, 119 S.Ct. 484 (1998), the United States Supreme Court examined the question of whether a search incident to a traffic citation authorized by an Iowa statute nonetheless violated the Fourth Amendment.  In that case a police officer had stopped a motorist for a traffic violation, and rather than making a custodial arrest as permitted by law, the officer chose to give the driver a citation.  However, he took the matter one step too far by conducting a full search of the driver and the car.  When the search turned up contraband, the driver was charged with violating state laws dealing with controlled substances.  The search, admittedly without probable cause, was held to violate the Constitution.

The 5th Circuit court considered other precedent on the issue of "reasonableness" of the police conduct. In Morgan v. City of Desoto, 900 F.2d 811 (5th Cir. 1990), police arrested high school students because they were congregating in the parking lot of a shopping mall and creating litter.  The officers handcuffed the youngsters and transported them to jail on charges of criminal trespass, a class B misdemeanor.  In that case the court, expressing disdain for the officer’s action, said that regardless of whether the officer had probable cause to arrest, and regardless of how bad the litter problem in the parking lot, there can be no explanation for arresting every high school student found in the parking lot under any circumstances, handcuffing them, and keeping them in jail for the night as if they were a threat to society.

 In Welsh v. Wisconsin, 466 U.S. 740 (1984), a witness had observed a car that was being driven erratically and eventually swerved off the road, coming to a halt in a field without causing damage to any person or property. Ignoring the witness’ suggestion to wait for assistance in removing his car, the driver walked away from the scene.  Police officers arrived shortly thereafter,  and  were  told  by  the  witness  that  the driver was either drunk or sick.  Without obtaining a warrant or checking the registration, the officers went to the defendant’s home at 9 p.m.  The officers were admitted by the defendant’s daughter, and they found the defendant naked in his bed.  The defendant was arrested for driving under the influence in violation of a Wisconsin statute which provided that a first offense was a noncriminal  violation, subject to a civil forfeiture proceeding for a maximum fine of $200.  Welsh refused to take a breathalyser test.  Under Wisconsin law a refusal to submit to the test is "reasonable" if the underlying arrest was unlawful.  The matter ultimately reached the United States Supreme Court where it was held that the warrantless arrest of Welsh in his home for a traffic offense was unreasonable.

In Cruz v. Finney County, Kansas, 656 F.Supp. 1001(D.C. Kansas, 1987), the district court held that a strip search of the defendant resulting from a minor traffic violation was patently unreasonable.  Ms. Cruz had been stopped by a police officer for speeding in a school zone, but was released at the time of the stop.  Later that evening, after a search of Cruz’ driving record, the officer went to her home, handcuffed and arrested her.  She was taken to a Law Enforcement Center, booked, fingerprinted and strip searched.  Cruz brought a Section 1983 action against the county, and the court held that subjecting pretrial detainees arrested for traffic offenses to strip searches was unconstitutional.  The court said that the officer had no reasonable suspicion that Cruz was carrying or concealing contraband.  A  strip search is a substantial intrusion of personal rights since it involves inspection of the anal and genital areas.  Furthermore, the search is terrifying, unpleasant, repulsive, degrading, and carries with it a host of other dehumanizing elements.  The security interest of jails called into question by the arrest of traffic law violators and misdemeanor offenders were clearly outweighed by the invasion of privacy caused by these offensive procedures.

Just because the law says that police can conduct a search or seizure, does not make that search or seizure right or reasonable!  As seen from the above-cited cases, the United States Supreme Court and other federal courts have long recognized the logic of distinguishing between minor and serious offenses in evaluating the Fourth Amendment "reasonableness"  of  searches  and  seizures. Because  a police officer may have a hammer in his hand does not mean he should use it.  In the instant case all that was necessary was a pen.  Just a pen to write a citation for a minor traffic infraction, an infraction that the court called paternalistic in nature and could not possibly endanger other individuals on the roadway.

When the governmental interest is only to arrest for a minor offense, the government should be permitted to make arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.  In this case, if Officer Turek had gone to a magistrate who would have inquired as to the circumstances of the "offense," a warrant would not have been issued, and Turek would have been set straight.

Furthermore, said the court, there were no exigent circumstances here.  Gail Atwater was a first time offender, and an arrest for a minor violation was certainly an extraordinary measure.  She posed no threat to the officer; she was not at risk of flight, and she would not have posed a danger to society.  The measures taken during the arrest were also extreme and uncalled for.  Upon balancing all the relevant factors, the court could find no factors on the governmental side of the scale that would tilt it in favor of the seizure.  Officer Turek’s actions were clearly unreasonable.  He went at Atwater screaming and yelling, poking his finger in her face for failure to wear a seat belt.  Clearly, Turek had his mind made up before he stopped Atwater.  He told her she would go to jail as soon as he stopped her.  Therefore, the seizure was patently unreasonable.

 The court recognized that, in Texas, there have been instances where police officers have enforced the seat belt law by arresting the offender.  However, a review of those cases indicated that the custodial arrest only ensued after some other additional conduct occurred or additional factors were revealed, such as: an inspection sticker which was expired and a license or registration check revealed that the motorist had a felony record; contraband was in plain view; or the driver was intoxicated.  Any  such additional circumstances would warrant an arrest.  But the only reason that the court could find to explain Officer Turek’s actions in arresting Gail Atwater was to harass her by imposing a punishment beyond the limitations of the ordinance.  For this reason, concluded the court, Officer Turek’s actions were constitutionally unreasonable.