Now pending in the Supreme Court on a petition for review is the case of Atwater vs. Turek. It is an ugly piece of business. U.S. Circuit Judge Robert M. Parker tells the story:
"Gail Atwater and her family are long-term residents of Lago Vista, Texas, a suburb of Austin. She is a full-time mother, and her husband is an emergency room physician at a local hospital. On the pleasant spring afternoon of March 26, 1997, as Gail Atwater was driving her children home after their soccer practice at 15 miles per hour through her residential neighborhood, she violated Section 545.413 of the Texas Transportation Code. Neither Gail Atwater, her 4-year-old son nor her 6-year-old daughter was wearing a seat belt."Detecting this breach of the peace and dignity of the state, Lago Vista police officer Bart Turek set about to protect the community from the perpetration of such a crime. . . . It was not a proud moment for the city of Lago Vista.
"When officer Turek pulled over Atwater's pickup, she and her children remained in the vehicle. Officer Turek approached the driver's side window and aggressively jabbed his finger toward her face. Turek screamed either that they had met before or had this conversation before. Turek's conduct frightened her children, so Atwater calmly and in a normal tone requested Turek to lower his voice.
"According to Atwater, the request further triggered his wrath. Turek responded immediately by telling Atwater that she was going to jail. Atwater remained calm. Atwater was not acting suspiciously, she did not pose any threat to Turek, and she was not engaged in any illegal conduct other than failing to wear a seat belt when Turek told her she was going to jail.
"After telling Atwater that she would be taken to jail, Turek demanded her driver's license and proof of insurance. When Atwater informed Turek that her license and insurance card were in her purse that had been stolen a couple of days before, Turek ridiculed her and implied that she was a liar. . . . Atwater then asked Turek to allow her to take her children to a friend's house before taking her to jail, but he refused her request. Turek stated that her children could accompany her to the police station. Fortunately, a friend of Atwater's who came to the scene took the children into her care.
"Although under Texas law Turek could have issued Atwater a traffic citation if she signed a promise to appear, he instead chose to handcuff Atwater with her hands behind her back, load her into his squad car and take her to the police station. Once at the police station, Atwater was required to remove her shoes and glasses, empty her pockets and have her picture taken. She was then placed in a jail cell before being taken to a magistrate."
Judge Parker wrote for a three-judge panel in January of last year. He and his concurring colleagues held that Turek's actions were "indefensible." In November the entire 5th Circuit considered the case and by a vote of 10-6 reversed the panel's judgment. Writing for the majority, Judge Emilio M. Garza held that there was nothing "extraordinary" or "unusually harmful" in Turek's conduct. From that judgment Atwater has appealed to the Supreme Court.
Her petition is set for conference April 21. At stake is a question of constitutional law that the high court has sidetracked at least twice. Does the custodial arrest of a motorist for a minor traffic offense violate his rights under the Fourth and 14th Amendments? In 1973 the court heard argument on essentially the same issue, but the case went off on a different point involving more search than seizure. Again in 1998 the court heard the question debated but dismissed the case without opinion.
Counsel for Atwater make a persuasive argument in support of Supreme Court review. Roughly 190 million Americans hold drivers' licenses. "At some point in their driving careers, virtually every one of them will violate SOME traffic law." I will confess my own sins: I have twice been arrested for speeding, once in a South Carolina speed trap and again in Virginia when I got swept away by Rachmaninoff on the car radio. No one put handcuffs on me. In each instance I mailed in a check and that was that.
The Fourth Amendment does not protect a motorist from every form of custodial arrest, but it surely protects us from "unreasonable" seizures. If the cop's treatment of Gail Atwater was not constitutionally unreasonable, jurisprudence under the Fourth Amendment has gone badly awry.
Universal Press Syndicate