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GAIL ATWATER, Individually; and MICHAEL HAAS, Dr, As nextfriend 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.
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. (1)
EMILIO M. GARZA, Circuit Judge:
Plaintiffs-Appellants Gail Atwater ("Atwater") and Michael Haas ("Haas"), as next friendof Anya Savannah Haas and Mackinley Xavier Haas, appealed the district court's grant of summaryjudgment in favor of Defendants-Appellees Officer Bart Turek ("Officer Turek"), Police Chief FrankMiller ("Chief Miller"), and the City of Lago Vista. A panel of this court reversed in part andremanded. See Atwater v. City of Lago Vista , 165 F.3d 380 (5 th Cir. 1999), reh'g en banc granted, 171 F.3d 258 (5 th Cir. 1999). We vacated the panel opinion, see 5 th Cir. R. 41.3, and grantedrehearing en banc .
I
Officer Turek arrested Gail Atwater for failing to wear her seat belt, failing to fasten herchildren in seat belts, driving without a license, and failing to provide proof of insurance. OfficerTurek handcuffed Atwater and took her to jail, where she spent approximately one hour. Atwaterappeared before a magistrate and was released after posting bond.
Atwater and her husband, Haas, subsequently brought various federal and state law claimsagainst Officer Turek, Chief Miller, and the City of Lago Vista, arising out of Atwater's arrest. (2) Officer Turek, Chief Miller and the City of Lago Vista moved for summary judgment. The districtcourt granted this motion.
A panel of this court reversed the district court's summary judgment with respect toAtwater's Fourth Amendment unreasonable seizure claim against Officer Turek and the City of LagoVista and concluded that Officer Turek was not entitled to qualified immunity. See Atwater , 165F.3d at 389. (3) 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 ofthe intrusion on the individual's Fourth Amendment interests against the importance of thegovernmental 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 arrestis 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). Inother words, when probable cause exists to believe that a suspect is committing an offense, thegovernment's interests in enforcing its laws outweigh the suspect's privacy interests, and an arrestof 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 areasonable intrusion under the Fourth Amendment . . . .").
We deviate from this principle--that an arrest based on probable cause is reasonable underthe Fourth Amendment--only when an arrest is "conducted in an extraordinary manner, unusuallyharmful to an individual's privacy or even physical interests." (4) Whren , 517 U.S. at 818, 116 S. Ct.at 1776, 135 L. Ed. 2d at __. For example, it is "necessary actually to perform" a balancing analysisnotwithstanding the existence of probable cause when a search or seizure involves deadly force, anunannounced entry into a home, entry into a home without a warrant, or physical penetration of thebody. See id. (reviewing cases).
After reviewing the record, we conclude that Officer Turek had probable cause to arrestAtwater and that he did not conduct the arrest in such an "extraordinary manner." Neither partydisputes that Officer Turek had probable cause to arrest Atwater. Atwater admits that she was notwearing her seat belt and that she had not belted in her children. Operating a motor vehicle withoutwearing a seat belt violates Texas law, (5) and Officer Turek had discretion to arrest Atwater withouta warrant, see Tex. Transp. Code § 543.001; United States v. Wadley , 59 F.3d 510, 512 (5thCir.1995) ("Probable cause for a warrantless arrest exists when the totality of facts andcircumstances within a police officer's knowledge at the moment of arrest are sufficient for areasonable 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, 116S. Ct. at 1776, 135 L. Ed. 2d at __. The only physical contact between Officer Turek and Atwateroccurred when he placed her in handcuffs. Atwater admits that she did not suffer any physical harmduring or as a result of the arrest. We therefore conclude that, because it was based on probablecause and because it was not conducted in the above-described "extraordinary manner," OfficerTurek's arrest of Atwater was reasonable under the Fourth Amendment. (6) See id.
III
Accordingly, we AFFIRM the district court's summary judgment.
REYNALDO G. GARZA, Circuit Judge, dissenting:
I believe that the original opinion of the panel that I was on, which can be found at165 F.3d, 380 (5 th Cir. 1999), is sufficient to show that the seizure and handcuffing ofMrs. Atwater in this case was unreasonable and uncalled for.
I write separately in dissent because I believe that our colleagues in the majority arewrong 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. Aspointed 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 andno more. Her offense would in no way have been a danger to any one else, but herself andher children.
I have been a Texas lawyer for over sixty years and an Article III Federal Judge inTexas for over thirty-eight years. I think that I can take judicial notice of the fact that ina 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 thestop or the arrest is to give the accused a citation, which shows the charge against theperson driving the car, a notice to appear before a municipal judge on a certain day at acertain time and signed by the accusing officer; which also adds a paragraph that is signedby the accused that they agree to appear on the date and time stated and that is the end ofthe story.
There are times when during a traffic stop an officer finds that the driver forinstance, is driving while under the influence of either alcohol or drugs; the officer seesa gun on the seat of the car; the car smells of marihuana; the officer sees packages ofcocaine or some other reason, like a check of the license number of the person stoppedshows that the person is a fugitive or has another charge pending; in which case the officerthat made the stop seizes the person and takes him or her to the police station to awaitbeing taken before a Magistrate, where the officer makes the complaint against the personand 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 beseized and taken to the police station where she waited for an hour for a Magistrate torelease her.
The majority setting aside the panel opinion makes no mention of an affidavit thatis in the Record Excerpts of appellants, Gail Atwater and her husband, on behalf of twoof their children. The affidavit is that of Keith A. Campbell, who was a member of theRecruitment Unit of the Austin Police Department from August 1994 to March 1997. Inthe affidavit he makes mention of all the things he did when screening applicants forpositions in the Austin Police Department. Mr. Campbell states he has reviewed thepersonnel file of Michael Barton Turek and he can state without reservation that he wouldnot have recommended this individual to be hired by the Austin Police Department for thefollowing 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.
Mr. Campbell's affidavit is an eye-opener of the kind of person Officer Turek, whosaw 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 andlack of training of Turek.
Under Texas law, the City of Lago Vista is not responsible for the actions of theirpolice officers unless they violate somebody's Constitutional Rights. Our colleagues in themajority seem to think that if an officer has probable cause to make a stop and an arrestit immunizes them to where they can do whatever they please. This approach is wrongbecause 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 toappear instead of seizing her, putting handcuffs behind her back, and taking her to thepolice station. He would have taken her children with her except that a neighbor that cameon the scene took the children to her home.
I strongly believe that my duty under the oath that I have taken, once as a UnitedStates District Judge, then as an Appellate Judge, is to uphold the Constitution and Lawsof the United States. Under Article IV of the Amendments to the Constitution, the seizureis different then the stop and the arrest of Mrs. Atwater was unreasonable and thereforea violation of the Constitution of the United States. I cannot see why some of mycolleagues 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 fullcustodial arrest, replete with transportation to jail and booking,is per se a reasonable seizure within the meaning of the FourthAmendment as long as the arresting officer has probable cause tobelieve that the individual being arrested has violated the law ----any law, even an innocuous traffic ordinance. Not only does thisholding ignore the Supreme Court's longstanding pronouncements thatevery Fourth Amendment analysis must turn on a tripartite balancingof individual interests, government interests, and the degree ofcertainty that the government interest will be furthered by thesearch or seizure at issue, but it also turns a blind eye on theextreme facts of this case; facts that so clearly demonstrate anunreasonable seizure that those of my colleagues who concur in themajority opinion should have been tipped off that something must becritically awry with its reasoning. The result reached is socounterintuitive that it cries out for a deeper look. As theFourth Amendment requires that every seizure must be effectedpursuant to a legitimate governmental interest, and as the onlyconceivable reason for the full custodial arrest at issue here wasOfficer Turek's illegitimate desire to punish Atwater, Irespectfully dissent.
I
When, as here, the facts virtually speak for themselves, it isdisappointing ---- even if not surprising ---- that the majorityopinion goes out of its way to sanitize them. The instant factsreveal that this case is not truly about a traffic stop followed byan arrest; it is about a police officer going to extreme lengths tosatisfy a personal crusade or possibly even a vendetta. Theevidence would allow a jury reasonably to infer that Officer Turekhad been eagerly awaiting the opportunity to threaten, frighten,and humiliate Gail Atwater: Approximately two months prior to theincident in question, Officer Turek had pulled Atwater over for aputative seatbelt violation; however, much to his dismay, he hadbeen forced to let her drive off without his issuing her a citationwhen he discovered that she and the other occupants of her car hadtheir seatbelts securely fastened.
Officer Turek's frustration over this prior incident was madereadily apparent from the very beginning of the traffic stop andarrest that are now under review. When Atwater was pulled overthis time, she was driving her two children, ages six and four,home from soccer practice. She was traveling in a residentialneighborhood, on bone-dry streets, in broad daylight, and at areasonable, lawful rate of speed. When Officer Turek observed thatneither Atwater nor her children were wearing seatbelts, heproceeded to pull her car over. According to the testimony,Officer Turek approached Atwater's car and yelled at her in abelligerent and threatening manner, pointing his finger menacinglyin 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'slicense and proof of insurance. Atwater informed him that bothdocuments had been in her purse when it was stolen two daysearlier. She did, though, provided him with her license number andaddress from her checkbook. Despite the fact that Officer Turekhad seen Atwater's driver's license and proof of insurance when hehad pulled her over only weeks earlier, he proceeded to make goodon his promise to take her to jail. First, he had her step out ofher car; next, he handcuffed her behind her back; then he loadedher into the back of his squad car and took her to the policestation; 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 forapproximately one hour before being produced before a magistrate.
II
The law is long and well established that, under the FourthAmendment, the scope of a search or seizure "must be strictly tiedto and justified by the circumstances which rendered its initiationpermissible." Terry v. Ohio , 392 U.S. 1, 19 (1968) (citationomitted). Implicit in this simple but forceful statement of thelaw ---- and explicit in its application by the Supreme Court to abroad panoply of cases ---- is the precept that the permissibilityof any search or seizure depends on a balancing of (1) thegovernment's purported interest in effecting the search or seizure,(2) discounted by the degree of certainty that the search orseizure will in fact further the government's interest , against (3)the extent of any infringement on the targeted individual'sconstitutionally protected privacy and liberty interests . (7)
The problem I perceive with the majority opinion is that itsanalysis focuses solely on the quantum of certainty involved in thecase, to the exclusion of the other two relevant variables: theimportance of the government's interest and the extent of theintrusion on the individual's liberty and privacy interests. Thisis all the more regrettable in light of the fact that quantum ofcertainty is not even at issue here: Atwater concedes that OfficerTurek had probable cause to believe that she had broken the law byfailing to wear a seatbelt. Indeed, Atwater further acknowledgesthat the government's interest in enforcing the traffic laws wassufficient to justify Officer Turek's decision, based on probablecause, to effect a traffic stop, and that the same interest wouldhave justified his issuing her a citation. What Atwater vehementlydenies, though, is that the government had any legitimate interestwhatsoever ---- whether on the basis of reasonable suspicion,probable cause, or even absolute certainty ---- in effecting her fullcustodial arrest and transporting her to jail when the issuing ofa citation would have fully protected and vindicated all of thegovernment's interests.
"The Fourth Amendment proceeds as much by limitations upon thescope of governmental action as by imposing preconditions upon itsinitiation." Id . at 28-29; see also United States v. Place , 462U.S. 696, 707-08 (1983). The mere fact that Officer Turek wasjustified in pulling Atwater over, and would have been justified inissuing her a citation, does not necessarily mean that he wasjustified in taking the far more intrusive step of effecting herfull custodial arrest, complete with behind-the-back handcuffing,transporting to jail, and booking. "In justifying [a] particularintrusion [a] police officer must be able to point to specific andarticulable facts which, taken together with rational inferencesfrom those facts, reasonably warrant that intrusion." Terry , 392U.S. at 21. In other words, to justify each successive,increasingly stringent intrusion on an individual's liberty andprivacy interests, a police officer must at a minimum be able toarticulate some reason why it was necessary to effect the furtherintrusion. The articulated reason does not need to be independentof the reasons that justify the initial intrusions: "The test iswhether those interests are sufficiently substantial, not whetherthey are independent of the interest in investigating crimeseffectively and apprehending suspects." Place , 462 U.S. at 704. But if the identified reasons for both the initial and thesuccessive intrusions are the same, a police officer must be ableto advance a plausible claim that the initial intrusions wereinadequate fully to serve the proffered governmental interests. (8) 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 gettinginto the business of micro-managing arrests. I do not agree,however, that a jurisprudence that is faithful to the fundamentalprinciples of the Fourth Amendment ---- and that thus would find aFourth Amendment violation in the instant case ---- requires thecourts to engage in such a practice. In the overwhelming majorityof cases, when a police officer has probable cause to believe thatan individual has violated or is violating the law, there are goodand obvious reasons for that officer to arrest the individual. Examples of reasons that justify a police officer's effecting anarrest include risk of flight, see United States v. Salerno , 481U.S. 739, 745 (1987); need to interrogate an individual or searchhim for evidence, see New York v. Harris , 495 U.S. 14 (1990); andneed to protect the community from any threat that an individualposes to its safety, see generally Bass v. Robinson , 167 F.3d 1041,1045 (6 th Cir. 1999); Dunn v. Denk , 79 F.3d 401, 408 (5 th Cir. 1996), cert. denied , 519 U.S. 813 (1996).
Clearly, none of these or other similar reasons are applicableto Officer Turek's arrest of Atwater. She is a local resident,well-known to Officer Turek. There is no indication that she posedeven a minimal flight risk. The evidence amply demonstrates thatshe did not pose any threat to the officer or the community. Andthere was no need to conduct any further investigation, as the fullextent of Atwater's violation of the seatbelt law had already beenclearly ascertained. By this process of elimination, then, the oneand only conclusion that can be reached on the evidence is that thesole reason Officer Turek arrested Atwater was his determination toinflict punishment on her, above and beyond the $50.00 fineprescribed by Texas law. Not only is the arresting officer'spersonal desire to punish a constitutionally illegitimate reasonunder the Fourth Amendment for effecting a seizure; it is also, atleast potentially, an independent violation of the Fifth andFourteenth Amendments, which permit the infliction of punishmentonly 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 (5 th Cir. 1993). AllowingOfficer Turek to skate here gives the officer on the street carteblanche to be a one-person cop cum judge cum jury cum executioner: In effect, he can arrest, charge, try, convict, and both assess andinflict punishment.
The desire of the majority of my esteemed colleagues to arriveat a simple, bright-line rule that can be easily applied byofficers in the field is both understandable and laudable. (9) Butsuch "a rigid all-or-nothing model of justification and regulationunder the Amendment" ignores the complexity of real-world eventsand thus fails to remain faithful to the fundamental principlesunderlying the Fourth Amendment. See Terry , 392 U.S. at 17. Italso has the unfortunate effect of licensing the admittedly rarerogue patrol officer to inflict vigilante punishment on a citizenunder the guise of an arrest ---- a state of affairs that theConstitution clearly does not tolerate.
The rule that I would apply to this case has the virtue ofbeing just as simple as the majority's, and thus just as easy forthe police to apply in the myriad complex and confusing situationsthat they regularly encounter, without, however, jettisoning thefundamental principles embodied in the Fourth Amendment. Simplystated: Before a police officer can constitutionally place anindividual under full custodial arrest, even with probable cause,the officer must have a plausible, articulable reason for effectingsuch an intrusion ---- a reason other than a desire on the part ofthe officer to punish the individual for his or her conduct. (10) Thisis hardly a burdensome imposition on the police; I cannot see anyreason for the police to complain about having to articulate somemanner of justification for the significant intrusion on FourthAmendment privacy and liberty interests inherent in effecting anyfull custodial arrest.
Try as I may, I can discern no legitimate justificationwhatsoever for Officer Turek's lamentable decision to arrest,handcuff, transport, book, and jail Atwater; conversely, I seeevery indication that Officer Turek's sole purpose in doing so wasunilaterally to inflict an illegitimate ---- and unconstitutional ----punishment on her. For these reasons, I must respectfully dissent.
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 theFourth Amendment, by incorporating the common law at the time it was framed, prohibits, as anunreasonable seizure, the warrantless full custodial arrest of an individual for a fine-only criminalmisdemeanor 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 (7 th Cir. 1997), cert. granted, 118 S.Ct. 679, 139 L.Ed.2d 627, andcert. dismissed , 523 U.S. 613, 118 S.Ct. 1693, 140 L.Ed.2d 789 (1998). However, after oralargument the writ of certiorari was dismissed as improvidently granted. See Ricci v. Village ofArlington Heights , 523 U.S. 613, 118 S.Ct. 1693, 140 L.Ed.2d 789 (1998). The Supreme Court oralargument transcripts in Ricci suggest that the Court dismissed certiorari as improvidently grantedonly because the Court learned for the first time at oral argument that the issue was not actuallypresented because Ricci's arrest had been based on the violation of a civil business license ordinancerather than a criminal misdemeanor offense. Oral Argument Before the Supreme Court of the UnitedStates (1998 WL 204590) at 57-64, Ricci v. Arlington Heights, 116 F.3d 288 (7 th Cir. 1997), cert.granted, 118 S.Ct. 679, 139 L.Ed.2d 627, and cert. dismissed , 523 U.S. 613, 118 S.Ct. 1693, 140L.Ed.2d 789 (1998) (No. 97-501).
The district court's granting of the defendants' Rule 12(b)(6) and Rule 56 motions isreviewed de novo by this court of appeals. See McConathy v. Dr. Pepper/Seven Up Corp. , 131 F.3d558 (5 th Cir. 1995)(failure to state a claim); Montgomery v. Brookshire , 34 F.3d 291, 294 (5 th Cir.1994)(summary judgment). In accordance with F ED . R. A PP . P. 3 and 28, the appellant adequatelynoticed and argued to this court the issue of whether the warrantless full custodial arrest of a personfor 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 courtconcluded 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 rulingprimarily 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 placedAtwater in full custodial arrest based only on the seat belt violations and called for a back up toassist him in his seizure of Atwater, her children, and her vehicle. Consequently, this appeal doesnot raise the question of whether Turek constitutionally could have made a full custody arrest ofAtwater for the additional charges he sometime later filed against her of failure to provide proof ofinsurance and failure to have her driver's license in her possession. Moreover, the failure to provideevidence of insurance or financial responsibility in itself is not a crime or offense under Texas law. See T EX. T RANSP . C ODE § 601.053 (West 1999); Op. Tex. Atty. Gen. 1983, No. MW-577. Thefailure to carry or exhibit a driver's license is a fine-only, non-peace breaching misdemeanor, if, asin this case, it is not a third or subsequent conviction within one year after the date of the secondsuch conviction. See T EX. T RANSP . C ODE § 521.025. Finally, because Turek recently before hadstopped Atwater and had examined her driver's license and evidence of insurance, there is a genuinefactual dispute, not amenable to summary judgment, as to whether Turek had probable cause to filethe additional charges against Atwater, which were summarily dismissed the same day by themagistrate.
I cannot join the majority opinion because it does not acknowledge or address the argumentsin favor of the proposition that an unnecessary full custodial arrest of a person for a fine- onlycriminal misdemeanor involving no breach of the peace is an unreasonable seizure against which thepeople have been guaranteed a right to be secure in their persons by the Fourth Amendment. Thosearguments 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 (1998WL 77846), Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae inSupport of Petitioner (1998 WL 77850), Brief of the Institute for Justice as Amicus Curiae inSupport of Petitioner (1998 WL 77847), Ricci v. Arlington Heights, 116 F.3d 288 (7 th 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: TheFourth Amendment provides that "[t]he right of the people to be secure in their persons... againstunreasonable... seizures, shall not be violated[.]" When determining whether a particulargovernmental action violates the Fourth Amendment, the Supreme Court has said that the firstinquiry is whether the action was regarded as an unlawful search or seizure under the common lawwhen the amendment was framed. See Wyoming v. Houghton, -- U.S. --, 119 S.Ct. 1297, 1300, 143L.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 inquiry yields no answer, we must evaluate the search or seizure under traditionalstandards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon anindividual's privacy and, on the other, the degree to which it is needed for the promotion oflegitimate 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 unlessit 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 commonlaw no power of arresting without a warrant except when a breach of thepeace has been committed in his presence or there is reasonable ground forsupposing that a breach of peace is about to be committed or renewed in hispresence.' Halsbury's Laws of England, vol. 9, part. III, 612.
The reason for arrest for misdemeanors without warrant at common law waspromptly to suppress breaches of the peace (1 Stephen, History of CriminalLaw, 193), while the reason for arrest without warrant on a reliable report ofa felony was because the public safety and the due apprehension of criminalscharged with heinous offenses required that such arrests should be made atonce 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 "someviolent or disorderly act causing public alarm or disturbance...." 2 E NCYCLOPEDIA OF THE L AWS OF E NGLAND 436-37 (E.A. Jelf ed., 3d ed. 1938). The misdemeanors for which common law allowedcustodial arrest were serious offenses, including assaults and other dangerous and disruptive acts,or public disturbances. See Horace L. Wilgus, Arrest Without a Warrant , 22 M ICH . L. R EV . 541,572-77 (1923-24).
Applied to the case at hand, it seems evident that the failure to buckle a seat-belt hardlyconjures up images of the "violent or disorderly acts" contemplated by the common law aswarranting a full custodial arrest. See S IR W ILLIAM B LACKSTONE , B LACKSTONE'S C OMMENTARIES ONTHE L AW 811 (Bernard C. Gavit ed. 1892) (listing offenses against the public peace as riotousassemblages, 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 notconstitute or portend any disturbance that would even approach a breach of the peace under thecommon law when the Fourth Amendment was framed. Therefore, the initial inquiry required bythe Supreme Court's decisions yields the answer that Turek's full custodial arrest of Atwater for thatinfraction violated her right under the Fourth Amendment to be secure in her person againstunreasonable seizures.
Even if the historical evidence were thought to be equivocal, see Houghton , 119 S.Ct. at1302, the panel opinion in this case demonstrates that the balancing of the relative interests weighsdecidedly in favor of protecting the personal privacy and personal dignity of an individual from anintrusion that must surely be an annoying, frightening, and humiliating experience. See Atwater v.City of Lago Vista , 165 F.3d 380 (5 th Cir. 1999). In this case in which there is substantial andperhaps conclusive evidence that the governmental action would have been regarded as an unlawfulsearch or seizure under the common law when the amendment was framed, the panel opinion alsois very persuasive in its evaluation of the seizure under the traditional standards of reasonablenessand its conclusion that the degree to which the seizure intrudes upon an individual's privacy anddignity undoubtedly outweighs the degree to which it is needed for the promotion of legitimategovernmental interests. Id.
The majority opinion affirms the district court's summary judgment without undertaking thefirst or the second inquiry demanded of us by the Fourth Amendment and the Supreme Court'sdecisions 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., 499U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The Supreme Court's reaffirmation of our dutyto 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 ofwarrantless custodial arrests for peace-breachless fine-only misdemeanors in Ricci v. ArlingtonHeights, 116 F.3d 288 (7 th 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 majorityis mistaken in assuming that our obligation to carefully scrutinize intrusions upon the right of thepeople to be secure in their persons has been totally displaced by a simple Whren probable causematrix. Accordingly, because the majority used an inappropriate truncated analysis to reach whatappears to be an incorrect result, I respectfully dissent.
1. Chief Judge King and Judges Jolly, Higginbotham, Davis, Jones, Smith, Duhé,Barksdale, DeMoss, and Benavides concur in the majority opinion. Judge Parker concurs in thedissent of Judge Reynaldo G. Garza. Judges Reynaldo G. Garza, Politz, and Parker concur in thedissent 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 (5 th Cir. 1999). Judges Reynaldo G. Garza, Politz, andParker concur in the dissent of Judge Dennis.
2. Atwater and Haas alleged causes of action for: (1) Deprivation of ConstitutionalRights, (2) Excessive Use of Force, (3) False Imprisonment, (4) Inadequate Training, (5) Failure toSupervise, (6) Intentional Infliction of Emotional Distress, (7) Assault and Battery, (8) GrosslyNegligent Hiring and Retention, (9) Conspiracy to Formulate and Enforce a Municipal Policy toViolate Constitutional Rights, and (10) Common Fund.
3. The panel affirmed the district court's summary judgment on all other claims. See Atwater , 165 F.3d at 389. We reinstate this part of the panel opinion.
4. Atwater advances an alternative argument for the first time in her en banc brief. Sheargues that in determining whether her arrest violated the Fourth Amendment, we should follow thecommon law rule that existed when the Fourth Amendment was promulgated, which she claimslimited the circumstances under which a misdemeanant could be arrested without a warrant. She didnot 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,it declined to do so based on the common law rule. See Atwater v. City of Lago Vista , 165 F.3d 380,386 (5 th Cir. 1999) (noting the common law rule and stating that "[a]lthough the Fourth Amendmentand common law do not always coincide, the Supreme Court has recognized the logic ofdistinguishing between minor and serious offenses in evaluating the reasonableness of a seizureunder 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 (5 th 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. Arensonv. Southern Univ. Law Ctr. , 53 F.3d 80, 81 (5 th Cir. 1995) (per curiam) ("Appellant's request [in hispetition for rehearing] for Title VII relief is denied because Arenson waived his Title VII claim byfailing 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 lawrule to invalidate warrantless misdemeanor arrests otherwise supported by probable cause. Indeed,the cases uniformly uphold warrantless misdemeanor arrests where probable cause exists, evenwhere variants of the common law standards to which Atwater refers are incorporated into state lawand raised before the court. See Vargas-Badillo v. Diaz-Torres , 114 F.3d 3, 6 (1 st Cir. 1997) ("Todate, neither the Supreme Court nor this circuit ever has held that the Fourth Amendment prohibitswarrantless arrests for misdemeanors not committed in the presence of arresting officers."); Pylesv. Raisor , 60 F.3d 1211, 1215 (6 th Cir. 1995) (rejecting a Fourth Amendment challenge to amisdemeanor arrest when probable cause existed, even though the arrest may have violated theplaintiff's state right "as an alleged misdemeanant to be arrested only when the misdemeanor iscommitted in the presence of the arresting officer"); Fields v. City of South Houston , 922 F.2d 1183,1189 (5 th 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 thepresence of the arresting officer"); Barry v. Fowler , 902 F.2d 770, 772 (9 th Cir. 1990) ("Therequirement that a misdemeanor must have occurred in the officer's presence to justify a warrantlessarrest is not grounded in the Fourth Amendment."); Street v. Surdyka , 492 F.2d 368, 371-72 (4 th Cir.1974) ("We do not think the fourth amendment should now be interpreted to prohibit warrantlessarrests for misdemeanors committed outside an officer's presence."); cf. Whren , 517 U.S. at 819, 116S. Ct. at 1777, 135 L. Ed. 2d at __ ("Here the District Court found that the officers had probablecause to believe that petitioners had violated the traffic code. That rendered the stop reasonableunder the Fourth Amendment . . . .").
5. 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
6. Having concluded that Officer Turek's arrest of Atwater did not violate the FourthAmendment, 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 ThirteenthAmendment rights were not violated, we do not reach the issue of qualified immunity."). Nor dowe discuss the liability of the City of Lago Vista. See Doe on Behalf of Doe v. Dallas Indep. Sch.Dist. , 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 offederally protected rights.") (quotations omitted).
7. Thus, the Supreme Court has held that the government'sinterest in protecting police officers is sufficient to justify alimited "stop and frisk" of an individual when supported byreasonable suspicion that the individual is carrying a weapon. Terry , 392 U.S. at 27. But the same governmental interest isinsufficient 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 thegovernmental interest in question. Id at 26.
Similarly, although reasonable suspicion is sufficient tojustify a "stop and frisk" for the purpose of protecting thepolice, the same quantum of certainty is insufficient to justify a"stop and frisk" for the less important and more generalizedgovernmental interest in investigating and preventing crime.
Id
at22-23, 26-27 (holding that a generalized interest in crimeprevention justifies "approach[ing] a person for purposes ofinvestigating possibly criminal behavior," but that it is "the moreimmediate interest of the police officer in taking steps to assurehimself that the person with whom he is dealing is not armed witha weapon" that supplies the justification for the intrusioninvolved in a stop and frisk). The Supreme Court applied the sameframework in
Tennessee v. Garner
, 471 U.S. 1 (1985), when it heldthat the government's interest in enforcing the criminal laws issufficient to justify an arrest that is supported by probable causeto believe that a suspect has committed a burglary, but that thegovernment cannot employ the more extreme form of seizure involvedin the use of deadly force absent the more important governmentalinterest of protecting the public from the threat of serious bodilyharm.
8.
This is an objective standard rather than a subjective one.
See
Whren v. United States
, 517 U.S. 806, 814 (1996) ("[T]he FourthAmendment's concern with 'reasonableness' allows certain actions tobe taken in certain circumstances, whatever the subjectiveintent."). Thus, the question is not whether the police officerhad a plausible reason in mind at the time of the arrest, butrather whether the facts, viewed objectively and from a distance,admit of a plausible reason justifying the arrest.
9.
The majority claims that its holding is mandated by languagefound in
Whren
, 517 U.S. at 818 ("Where probable cause has existed,the only cases in which we have found it necessary actually toperform the 'balancing' analysis involved searches or seizuresconducted in an extraordinary manner, unusually harmful to anindividual's privacy or even physical interests"). Not only isthis language dicta, however ---- the
Whren
court was assessing thevalidity of a traffic stop, not a full custodial arrest ---- but itarguably supports my position rather than the majority's. "Extraordinary" is defined in Webster's Dictionary as "going beyondwhat is usual, regular, or customary." WEBSTER'S SEVENTH NEWCOLLEGIATE DICTIONARY 296 (1965). Of course, what qualifies as"usual, regular, or customary" is entirely dependent on thecircumstances; an action that would be deemed an extraordinaryresponse to one set of facts might be thought quite ordinary andcommonplace if the facts were different. It need hardly be saidthat a full custodial arrest, complete with behind-the-back-handcuffing, transporting to jail, and booking, is an extraordinaryresponse to a local mother's daytime seatbelt violation.
10. This is an objective standard, rather than a subjective one. See supra note 2.