Atwater v. City of Lago Vista

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50302

GAIL ATWATER, Individually; 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 of
Police, Lago Vista,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Texas

January 29, 1999
Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellants Gail Atwater and Michael Haas, as next friend of

Anya Savannah Haas and Mackinley Xavier Haas, appeal the decision

of the district court granting defendants, City of Lago Vista, Bart

Turek, and Frank Miller, summary judgment. Finding error, we

reverse in part and remand.

BACKGROUND
 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 four-year-old son nor her six-year-old

daughter were wearing their seat belts. 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. In doing so, he brought to bear

the full panoply of means available to accomplish his goal--

verbal abuse, handcuffs, placing Gail Atwater under custodial

arrest, and hauling her to the local police station. 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 that

Turek lower his voice. According to Atwater, the request that

Turek lower his voice further triggered his wrath. Turek

responded immediately by telling Atwater that she was going to

2
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.

Turek continued to speak to Atwater in a verbally abusive

manner, accusing her of not caring for her children. Atwater’s

children and bystanders including friends and other Lago Vista

residents who drove or walked by witnessed Turek’s tirade. Turek

stated that he recently stopped Atwater for not having her

children in seat belts, but such was not the case. Turek had in

fact stopped her several months before for allowing her son to

ride on the front seat arm rest, but the seat belt was securely

fastened. No citation was issued.

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 she was a liar, even though, assuming

he followed standard procedures during the previous stop, he knew

she had a valid driver’s license and was an insured driver.

Atwater eventually provided her driver’s license number and

address from her check book. Atwater then asked Turek to allow

her to take her children to a friend’s home just two houses down

before taking her to jail, but he refused her request. Turek

stated that her children could accompany her to the police

3
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,1 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 for approximately one hour before

being taken before a magistrate.

Atwater pleaded no contest to not wearing a seat belt and

allowing her children to not wear seat belts. Charges of driving

without a license or proof of insurance were dismissed. This

incident caused Atwater and her children extreme emotional

distress and anxiety. Her youngest child has required

counseling, and Atwater has been prescribed medication for

nightmares, insomnia, and depression resulting from this

incident.

Frank Miller, the chief of police for Lago Vista, was the

ultimate authority in the police department in the areas of

management of department personnel. Lago Vista’s policy for

enforcement of traffic violations allows for the use of custodial

arrests to promote its goals of increased traffic ordinance

1
See Tex. Transp. Code Ann. § 543.005.

4
compliance. The policy specifically leaves to the officer’s

judgment whether to take a motorist into custody for violations

of a traffic ordinance, and according to Appellants, encourages

the very conduct engaged in by Officer Turek.

Atwater and her husband, as next friend for her children,

brought suit against the City of Lago Vista, Police Chief Miller,

and Officer Turek under 42 U.S.C. § 1983 and § 1985 alleging

inter alia violations of Atwater’s Fourth Amendment rights to be

free from unreasonable seizures and excessive force and

punishment as well as her right to due process under the Fifth

and Fourteenth Amendments. Atwater also brought state law claims

for false imprisonment and intentional infliction of emotional

distress. A claim for intentional infliction of emotional

distress was brought on behalf of her children.

The defendants filed a Rule 12(b)(6) motion to dismiss, or

alternatively, a motion for summary judgment based in part on

qualified immunity. The district court granted summary judgment

holding that the plaintiffs had not identified a constitutional

right that had been violated and that the individual defendants

had not acted in an objectively unreasonable manner. With

respect to the Fourth Amendment unreasonable seizure claim, the

district court found that the plaintiffs failed to state a claim.

With respect to the claims against the municipality, the district

court found that although the plaintiffs proved “policy or

5
custom” they failed to offer evidence of an underlying

unconstitutional activity. The district court also granted

summary judgment on the state law claims. Atwater and her

children timely appeal.

ANALYSIS

We review the grant of summary judgment de novo applying the

same standard as the district court. See Ellison v. Connor, 153

F.3d 247, 251 (5th Cir. 1998). For purposes of summary judgment,

the court considers the evidence of the nonmovant plaintiffs as

true and draws all inferences in the nonmovants’ favor. See

Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 255 (1986).

I. FAILURE TO STATE A CLAIM

With respect to Appellants’ Fourth Amendment unreasonable

seizure claim, the district court concluded that the Appellants

failed to state a claim because they did “not allege with any

particularity what conduct violated what provision of the

Constitution.” Order of February 13, 1998, p. 5. This

conclusion of the learned district judge misses the mark.

Appellants’ First Amended Petition alleged facts to support an

unreasonable seizure claim under the Fourth Amendment.

Appellants alleged that Officer Bart Turek stopped Atwater for

6
not wearing a seat belt and not having her children properly

seatbelted in the vehicle. Appellants further alleged that

Officer Turek began yelling at her, telling her she was going to

jail. According to Appellants, Officer Turek then continued to

abuse her verbally, handcuffed her, and took her to jail, for a

mere seat belt violation. Appellants alleged that this

constituted an unreasonable seizure under the Fourth Amendment.

See First Amended Petition, p.11. We find that facts were

alleged with sufficient particularity to state a claim under the

Fourth Amendment.

II. QUALIFIED IMMUNITY AND OFFICER TUREK2

Although the district court dismissed Appellants’ Fourth

Amendment claim for failure to state a claim, the Appellees

presented an argument on summary judgment that the individual

defendants were also entitled to qualified immunity. See Rule

12(b)(6) Motion for Dismissal, Or, In the Alternative, Rule 56

Motion and Brief for Summary Judgment, p. 19. Although it

appears that this section of the summary judgment brief focuses

only on the qualified immunity defense of Chief Miller and never

mentions Officer Turek by name, portions of the brief do allude

2
We discuss only the issue of the Fourth Amendment unreasonable
seizure claim because it is the claim which the court considers to
have merit. The judgment of the district court on the other claims
asserted by Appellants will be affirmed.

7
to the “individual defendants,” which ostensibly includes Officer

Turek. We shall give Appellees the benefit of the doubt that

they were asserting qualified immunity on behalf of both Chief

Miller and Officer Turek.

Determining whether an official is entitled to qualified

immunity is a two-step process requiring 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. See Stefanoff v. Hays County, 154 F.3d 523, 525 (5th

Cir. 1998). Although Atwater concedes that Turek had probable

cause to stop her for failure to wear a seat belt, Atwater

challenges the reasonableness under the Fourth Amendment of her

arrest for violation of the Texas seat belt law.

A. Clearly Established Law

The way one states the legal principle which must be clearly

established before liability can attach is oftentimes outcome-

determinative. In that vein, the defendants point out that no

case exists which calls Officer Turek’s actions into question;

thus no clearly established law exists. Indeed we have found no

case where a court was asked to consider an officer’s action of

arresting, handcuffing, booking, and holding a first-time seat

8
belt violator in jail. But that does not conclude the inquiry.

The paucity of similar factual scenarios that have found their

way into published legal opinions may be attributable to law

officers acting in a more responsible and professional manner

than Bart Turek acted on this occasion. Or in those instances

where similar abuses took place, perhaps the victims either were

without the resources to call the officer’s hand or chose to

avoid further involvement with a justice system so lacking in

common sense and reasonableness.

The Fourth Amendment provides:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.

It has long been clearly established that there is a

constitutional right to be free from unreasonable seizures. See,

e.g., Brower v. County of Inyo, 489 U.S. 593 (1989); Steagald v.

United States, 451 U.S. 204 (1981); Terry v. Ohio, 392 U.S. 1

(1968). Further, it is clearly established that 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

9
reasonableness requirement of the Fourth Amendment.3 See, e.g.,

Tennessee v. Garner, 471 U.S. 1 (1985)(finding that when an

arrest requires the use of deadly force, probable cause is not

sufficient and the means for the arrest must be reasonable);

Welsh v. Wisconsin, 466 U.S. 740 (1984) (holding that warrantless

arrest of a suspect in his home for a traffic offense was

unreasonable); New York v. Payton, 445 U.S. 573, 585 (1980)

(“the warrantless arrest of a person is a species of seizure

required by the [Fourth] Amendment to be reasonable”); Jones v.

United States, 357 U.S. 493 (1958) (probable cause insufficient

for warrantless arrest in farmhouse at night).

B. Objective Reasonableness

The Texas seat belt law is one of a number of paternalistic

statutes enacted by the Texas Legislature, the violation of which

usually exposes the offender to the imposition of a fine. See,

e.g., Tex. Trans. Code Ann. § 545.413 (requiring the driver,

front-seat passenger, and children from ages four to fifteen to

wear a seat belt); Tex. Trans. Code Ann. § 545.414 (prohibiting a

child under twelve years of age to ride in the open-bed of a

pickup truck); Tex. Trans. Code Ann. § 545.419 (prohibiting a

person from occupying a house trailer while it is being moved);

3
See Whren v. United States, 517 U.S. 806, 818 (1996), and
discussion infra.

10
Tex. Parks & Wildlife Code Ann. § 31.066 (requiring life

preservers on motorboats and requiring passengers under 13 years

of age to wear life preservers). We refer to these laws as

paternalistic because they are designed to protect a specific

individual from his own conduct, conduct which poses no threat to

the pubic at large. We contrast these paternalistic statutes

with most traffic laws, the violation of which can have an

immediate impact on other users of streets and roadways. See,

e.g., Tex. Penal Code Ann. § 49.04 (prohibiting the operation of

a motor vehicle while intoxicated); Tex. Trans. Code Ann. §

545.351-352 (requiring motorists to drive within speed limits);

Tex. Trans. Code Ann. § 545.401 (prohibiting reckless driving);

Tex. Trans. Code Ann. § 545.104 (requiring the use of turn

signals). In order to determine the objective reasonableness of

Officer Turek’s actions we must understand the nature of the

offense involved and who the law is designed to protect because

that helps us weigh the governmental interest in arresting a

violator versus the individual’s privacy interest under the

Fourth Amendment.

Atwater’s operation of a motor vehicle without wearing a

seat belt and without her children wearing a seat belt in the

front seat was a violation of § 545.413 of the Texas

Transportation Code. Violation of the Texas Seat Belt Law is a

“misdemeanor punishable by a fine of not less than $25 or more

11
than $50.” Tex. Trans. Code Ann. § 545.413(d). No jail term is

provided in the statute. Under the Texas Code an officer has the

discretion to allow a motorist to secure release upon arrest by

making a written promise to appear in court. See Tex. Trans.

Code Ann. § 543.005. Once a motorist provides a written promise

to appear by signing the citation, an officer is required to

promptly release the motorist. See id. Section 543.001 of the

Texas Transportation Code provides that: “Any peace officer may

arrest without warrant a person found committing a violation of

this subtitle.” However, any decision to arrest and the

circumstances surrounding the arrest must be considered within

the confines of the Fourth Amendment.

Although the statute provides that persons “may” be arrested

for seat belt violations, it does not provide that in all

circumstances an arrest is appropriate. Certainly a statute

which authorizes arrest for a mere seat belt violation in every

instance would be subject to a Fourth Amendment challenge.

In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme Court

held that the use of deadly force to apprehend a fleeing suspect

who did not appear to be armed or otherwise dangerous violated

the suspect’s constitutional rights, notwithstanding the

existence of probable cause to arrest. In reaching this

conclusion, the Court explained that “[t]o determine the

constitutionality of a seizure `we must balance the nature and

12
quality of the intrusion on the individual’s Fourth Amendment

interests against the importance of the governmental interests

alleged to justify the intrusion.’” Id. at 8 (citations

omitted). That “reasonableness depends on not only when a

seizure is made, but also how it is carried out.” Id. The

Supreme Court’s Fourth Amendment jurisprudence makes clear that

in determining reasonableness, we must ask “whether the totality

of the circumstances justified a particular sort of search or

seizure.” Id. 8-9.

Appellees argue that Officer Turek’s actions were justified

because he had probable cause4 to believe a seat belt violation

had occurred, and the Texas statute authorized the arrest. It is

not that simple. Officer Turek cannot hide behind the Texas seat

belt law to legitimate his actions. Most recently in Knowles v.

Iowa, 119 S. Ct. 484 (1998), the Supreme Court examined the

question of whether a search incident to traffic citation

authorized by Iowa law nonetheless violated the Fourth Amendment.

Implicit in the Court’s decision that the actions of the officer

violated the Fourth Amendment is the realization that the

existence of the Iowa statute did not obviate the need for an

independent Fourth Amendment analysis. “Where a statute

4
Probable cause occurs when the facts and circumstances within
an officer’s knowledge are sufficient to warrant a prudent man in
believing that a person committed or was committing an offense.
See Beck v. Ohio, 379 U.S. 89, 91 (1964).

13
authorizes official conduct which is patently violative of

fundamental constitutional principles, an officer who enforces

that statute is not entitled to qualified immunity.” Grossman

v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994).

Defendants’ reading of the Texas Seat Belt Law would be patently

violative of the Fourth Amendment because it would read the

reasonableness requirement out of the Amendment.

However, it is a cardinal principle that courts will

construe a statute to avoid a constitutional problem. See Edward

J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction

Trades Council, 485 U.S. 568 (1988); Crowell v. Benson, 285 U.S.

22 (1932). In doing so, we do not interpret the Texas statute to

authorize arrest in every instance. To the contrary, the statute

necessarily requires the exercise of discretion in the decision

to arrest or not--reasonableness being the key in exercising that

discretion.

At common law the general rule was:

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.

Carroll v. United States, 267 U.S. 132, 157 (1925)(quoting

Halsbury’s Laws of England, vol. 9, part. III, 612). Early

common law prohibited arrest for very minor offenses. See

Barbara C. Salken, The General Warrant of the Twentieth Century?

14
A Fourth Amendment Solution to Unchecked Discretion to Arrest for

Traffic Offenses, 62 TEMP. L. REV. 221, 258-59 (1989) (citing W.

Paley, THE LAW AND PRACTICE OF SUMMARY CONVICTIONS 19 (London

1814)).

Although 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.

Indeed, this is not a novel idea. See Gustafson v. Florida, 414

U.S. 260, 266-67 ((1973)(Stewart, J., concurring)(“It seems to me

that a persuasive claim might have been made in this case that

the custodial arrest of the petitioner for a minor traffic

offense violated his rights under the Fourth and Fourteenth

Amendments). In Welsh v. Wisconsin, 466 U.S. 740 (1984), police

officers arrived at the scene of a traffic accident and obtained

information indicating that the driver of the automobile involved

was guilty of a first offense of driving while intoxicated. The

driver left the scene of the accident, and the officers followed

the suspect to his home where they arrested him without a

warrant. Absent exigent circumstances, the warrantless invasion

of the home was a clear violation of Payton v. New York, 445 U.S.

573 (1980). In holding that the warrantless arrest for a traffic

offense was unconstitutional the Court stated:

When the government’s interest is only to arrest for a
minor offense, . . . the government usually should be

15
 allowed to make such arrests only with a warrant issued
upon probable cause by a neutral and detached
magistrate.

Welsh, 466 U.S. at 750. In this case, had Officer Turek gone to

a magistrate, undoubtedly no arrest warrant would have been

issued.5

Even Justice White, in dissenting in Welsh stated:

The gravity of the underlying offense is, I concede, a
factor to be considered in determining whether the
delay that attends the warrant-issuance process will
endanger officers or other persons. The seriousness of
the offense with which a suspect may be charged also
bears on the likelihood that he will flee and escape
apprehension if not arrested immediately.

466 U.S. at 759. In this case there is not the slightest hint of

exigent circumstances.

Appellees urge this court to recognize the significant body

of authority which appears to indicate that all seizures are

reasonable under the Fourth Amendment if based upon probable

cause. See, e.g., United States v. Watson, 423 U.S. 411 (1976)

(where the arrest for a felony occurring in a public place during

the daytime required only probable cause to be constitutional).

But see 3 Wayne R. LaFave, SEARCH AND SEIZURE § 5.1(b) (3d ed.

1996) (criticizing Watson as remarkable for its lack of

5
Justice Jackson writing in concurrence in McDonald v. United
States, 335 U.S. 451, 459-60 (1948), explained his view about
warrantless home arrests for minor offenses: “When an officer
undertakes to act as his own magistrate, he ought to be in a
position to justify it by pointing to some real immediate and
serious consequences if he postponed action to get a warrant.”

16
analysis); see also Beck v. Ohio, 379 U.S. 89, 91 (1964) (noting

that the constitutional validity of an arrest turns upon whether

the officer had probable cause to make the arrest). Once again,

this is an oversimplification of the status of our Fourth

Amendment jurisprudence. Most recently, in Whren v. United

States, 517 U.S. 806, 817-18 (1996), the Supreme Court explained

that although the general rule is that the “reasonableness” of a

search or seizure is not in doubt where the search or seizure is

based upon probable cause, a balancing of all relevant factors is

necessary under the Fourth Amendment when the search or seizure

is conducted in an “extraordinary manner” or constitutes an

“extreme practice.” Id. The Court cited Tennessee v. Garner and

Welsh v. Wisconsin, among others, as examples of seizures

conducted in an extraordinary manner, i.e., “unusually harmful to

an individual’s privacy or even physical interests.” Whren, 517

U.S. at 818.

In Whren, the Court faced the issue of whether a temporary

detention of a motorist based upon probable cause that he

violated a traffic law was unconstitutional under the Fourth

Amendment. The Court concluded that a traffic stop by an out-of-

uniform officer did not rise to the level of an extreme practice

to warrant the reasonableness analysis employed in cases where a

seizure was conducted in an extraordinary manner. See id. This

is in keeping with the Supreme Court’s observation that traffic

17
stops are generally brief in nature and not as invasive as other

forms of seizure. See, e.g., Berkemer v. McCarty, 468 U.S. 420,

439 n.29 (1984).

In light of the Supreme Court precedent clearly established

prior to the incident in question, particularly the Supreme

Court’s explanation in Whren, we easily conclude that an arrest

for a first-time seat belt offense is indeed an extreme practice

and a seizure conducted in an extraordinary manner which requires

a balancing analysis to determine the reasonableness of the

police activity. In conducting the analysis, we observe that the

only possible governmental interest in arresting Atwater for the

seat belt offense was enforcement of the seat belt law. Atwater

did not pose a threat to the officer’s safety; she was not a

flight risk; and upon release she would not have posed a danger

to society. Atwater was not a repeat offender. The seat belt

law could have been enforced equally well through the issuance of

a citation. With respect to the method of arrest, there was no

good reason for Atwater to be handcuffed behind her back. Upon

conducting a balancing test of all relevant factors, we find no

factors existing in this case that are appropriate for placement

on the side of the scales that would tilt them in favor of

seizure. The seizure was objectively unreasonable.

Appellees’ citation of United States v. Robinson, 414 U.S.

218 (1973), is unavailing. In Robinson, the parties never

18
challenged the constitutionality of the arrest. See id. at 221-

22. The challenge in Robinson was whether a search incident to a

valid arrest following a traffic violation was unconstitutional.

Our research reveals that every case in Texas wherein an

individual was custodially arrested after violating the seat belt

law, the arrest ensued only after some additional conduct

occurred or some additional factor justifying arrest was

revealed. See, e.g., Madison v. State, 922 S.W.2d 610 (Tex.

App.--Texarkana 1996, writ ref’d). In Madison, after stopping a

driver for failure to wear a seat belt, the officer observed that

the inspection sticker on the vehicle had expired more than two

years earlier, and after performing a license and registration

check, the officer discovered that driver had a felony record.

The driver was then arrested and cocaine was discovered during an

inventory search. See also Valencia v. State, 820 S.W.2d 397

(Tex. App.--Houston [14th Dist.] 1991, writ ref’d). In Valencia,

officers observed a van blocking the street which drove away as

they approached. The officers followed the van and observed it

swerving from side to side and into the path of oncoming traffic.

The officers stopped the van, noted that the driver appeared to

be intoxicated and arrested the driver. The officers observed

that the passenger was not wearing a seat belt, that he

continually moved his hands despite admonitions to keep his hands

where the officers could see them, and that the passenger had no

19
identification. The passenger was arrested and a search of the

passenger revealed a large amount of cash and a number of baggies

containing what appeared to be cocaine. These cases do not

support the proposition that a first-time offender for a seat

belt violation should be arrested, handcuffed and hauled to jail.

If we consider Atwater’s evidence as true and draw all

reasonable inferences in her favor, as we must do on summary

judgment,6 then she has established that Officer Turek’s conduct

was objectively unreasonable under the Fourth Amendment. Atwater

maintains that she was placed under arrest immediately for

failing to wear a seat belt. Atwater attests that Turek came at

her screaming and verbally abusing her; i.e., his mind was made

up before he could find out why the violation occurred.

According to Atwater, Turek told her she would be taken to jail

almost as soon as he got to her truck. The timing is important.

It is important also to note that in this case Atwater did

not refuse to buckle her seat belt or her children’s seat belts

upon being stopped by Officer Turek. There was no reason to seize

her because she was a serious repeat offender. According to

Atwater, the previous time Officer Turek stopped her, her son was

riding on the arm rest of her truck, but was wearing a seat belt.

No citation was issued during this previous stop. Further,

Atwater was no flight risk. Officer Turek knew she lived in the

6
See Anderson v. Liberty Lobby, Inc., 447 U.S. at 255 (1986).

20
neighborhood as he recognized her from the previous stop. She

posed no threat to the officer or to others. The only reason to

arrest Atwater instead of issuing her a citation under these

circumstances was to harass and impose a level of punishment

beyond the limitations of the statute. We cannot countenance

such abuse from an officer of the law.

Gail Atwater became the victim of an over-zealous police

officer who abused the power entrusted to him by the City of Lago

Vista.7 This case serves to remind us that “the central concern

of the Fourth Amendment is to protect liberty and privacy from

arbitrary and oppressive interference by government officials.”

United States v. Ortiz, 422 U.S. 891, 895 (1975) (citations

omitted). It also presents fundamental questions about the

7
In expressing disdain at overzealous police activity, our
colleague Judge Reavley said in Morgan v. City of Desoto, 900 F.2d
811 (5th Cir. 1990), a case where high school students were
arrested, handcuffed, and taken to jail because they were
congregating on shopping center parking lots after hours, creating
a litter problem:

Regardless of the visibility of the signs, regardless of
whether a class B misdemeanor (criminal trespass) was
committed, regardless of whether the officers had a probable
cause to arrest, and regardless of how bad a litter problem
the shopping centers were having, we can find no explanation
for taking every high school student found on the parking lot
under any circumstances and arresting them, handcuffing them,
and keeping them in jail for the night as if they were threats
to society. Whatever the legal points and the liability, how
can any party deny that the criminal justice system operated
here as an instrument of oppression?

Id. at 814.

21
status of Fourth Amendment rights and the lines society is

willing to draw concerning the conduct of police officers, the

vast majority of whom dutifully carry out their obligations

within constitutional limits.

It is also incumbent upon us to place this case into proper

perspective. It is and should be the rare case indeed where an

individual is placed under arrest for nothing more than a seat

belt violation. However, this decision in no way impacts the

plethora of authority justifying brief traffic stops for minor

traffic violations. See, e.g., Whren v. United States, 517 U.S.

806 (1996). This decision is limited to its facts. Appellees

argue that Officer Turek’s actions were justified because he had

probable cause to believe a seat belt violation occurred. While

we agree that traffic violations can become a serious matter

affecting public safety, we cannot agree that the seat belt

violation in this case was so dangerous or so serious as to

justify arrest.8 As previously discussed, a seat belt violation

affects only the passengers and operator of the vehicle in

question. Although the Texas Legislature has decided, and we do

not dispute, that the interest in protecting these individuals is

an important one, the governmental interest in arresting an

8
We do not address whether the Texas seat belt law is facially
constitutional, for no such challenge was presented. This case
presents an as-applied challenge. For a discussion on the need for
laws mandating use of citation as opposed to arrest to enforce
minor traffic laws, see Wayne R. LaFave, 3 SEARCH AND SEIZURE §
5.1(h) (3d ed. 1996).

22
individual for a seat belt violation is much less than in the

case of other traffic violations which can have an immediate

impact on the public at large.

Officer Turek’s actions, in this case, under these facts,

were constitutionally unreasonable; indeed they were

indefensible. He is not, therefore, entitled to qualified

immunity.

III. MUNICIPALITY LIABILITY

Because summary judgment for the municipality was based on

failure to identify a constitutional right which had been

violated by Officer Turek, that judgment also must be reversed

with respect to a Fourth Amendment claim alleging unreasonable

seizure.

IV. LIABILITY OF CHIEF MILLER

Upon review of the summary judgment record, we fail to see

any evidence or argument showing that Chief Miller should be

liable on any of Appellants’ claims or that he would otherwise

not be entitled to qualified immunity. Accordingly, the judgment

of the district court dismissing claims against Chief Miller is

affirmed.

V. CONCLUSION

The judgment of the district court with respect to the

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Fourth Amendment unreasonable seizure claim under 42 U.S.C. §

1983 against Officer Turek and the City of Lago Vista is

reversed. All claims against Officer Turek for unreasonable

seizure under the Fourth Amendment are reinstated. The claim

under § 1983 against the City of Lago Vista for unconstitutional

activity pursuant to official policy or custom as it relates to

the alleged unreasonable seizure by Officer Turek is reinstated.

The judgment of the district court dismissing all claims against

Chief Miller is affirmed. The judgment of the district court is

otherwise affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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