Atwater v. City of Lago Vista

WIENER, Circuit Judge,

dissenting:

Today a1 majority of this court announces that any full custodial arrest, replete with transportation to jail and booking, is per se a reasonable seizure within the meaning of the Fourth Amendment as long as the arresting officer has probable cause to believe that the individual being arrested has violated the law — any law, even an innocuous traffic ordinance. Not only does this holding ignore the Supreme Court’s longstanding pronouncements that every Fourth Amendment analysis must turn on a tripartite balancing of individual interests, government interests, and the degree of certainty that the government interest will be furthered by the search or seizure at issue, but it also turns a blind eye on the extreme facts of this case; facts that so clearly demonstrate an unreasonable seizure that those of my colleagues *248who concur in the majority opinion should have been tipped off that something must be critically awry with its reasoning. The result reached is so counterintuitive that it cries out for a deeper look. As the Fourth Amendment requires that every seizure must be effected pursuant to a legitimate governmental interest, and as the only conceivable reason for the full custodial arrest at issue here was Officer Turek’s illegitimate desire to punish Atwater, I respectfully dissent.

I

When, as here, the facts virtually speak for themselves, it is disappointing — even if not surprising — that the majority opinion goes out of its way to sanitize them. The instant facts reveal that this case is not truly about a traffic stop followed by an arrest; it is about a police officer going to extreme lengths to satisfy a personal crusade or possibly even a vendetta. The evidence would allow a jury reasonably to infer that Officer Turek had been eagerly awaiting the opportunity to threaten, frighten, and humiliate Gail Atwater: Approximately two months prior to the incident in question, Officer Turek had pulled Atwater over for a putative seatbelt violation; however, much to his dismay, he had been forced to let her drive off without his issuing her a citation when he discovered that she and the other occupants of her car had their seatbelts securely fastened.

Officer Turek’s frustration over this pri- or incident was made readily apparent from the very beginning of the traffic stop and arrest that are now under review. When Atwater was pulled over this time, she was driving her two children, ages six and four, home from soccer practice. She was traveling in a residential neighborhood, on bone-dry streets, in broad daylight, and at a reasonable, lawful rate of speed. When Officer Turek observed that neither Atwater nor her children were wearing seatbelts, he proceeded to pull her car over. According to the testimony, Officer Turek approached Atwater’s car and yelled at her in a belligerent and threatening manner, pointing his finger menacingly in Atwater’s face and terrifying her and her young children. Officer Turek screamed that they had “had this conversation before” and that this time she (At-water) was going to jail.

Officer Turek then ordered Atwater to produce her driver’s license and proof of insurance. Atwater informed him that both documents had been in her purse when it was stolen two days earlier. She did, though, provided him with her license number and address from her checkbook. Despite the fact that Officer Turek had seen Atwater’s driver’s license and proof of insurance when he had pulled her over only weeks earlier, he proceeded to make good on his promise to take her to jail. First, he had her step out of her car; next, he handcuffed her behind her back; then he loaded her into the back of his squad car and took her to the police station; and there she was forced to remove her shoes and glasses, empty her pockets, and allow her “mug shot” to be taken. Finally, At-water was placed in a jail cell and made to wait for approximately one hour before being produced before a magistrate.

II

The law is long and well established that, under the Fourth Amendment, the scope of a search or seizure “must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (citation omitted). Implicit in this simple but forceful statement of the law — and explicit in its application by the Supreme Court to a broad panoply of cases — is the precept that the permissibility of any search or seizure depends on a balancing of (1) the government’s purported interest in effecting the search or seizure, (2) discounted by the degree of certainty that the search or seizure will in fact further the government’s interest, against (3) the extent of any infringement on the targeted individu*249al’s constitutionally protected privacy and liberty interests.1

The problem I perceive with the majority opinion is that its analysis focuses solely on the quantum of certainty involved in the case, to the exclusion of the other two relevant variables: the importance of the government’s interest and the extent of the intrusion on the individual’s liberty and privacy interests. This is all the more regrettable in light of the fact that quantum of certainty is not even at issue here: Atwater concedes that Officer Turek had probable cause to believe that she had broken the law by failing to wear a seat-belt. Indeed, Atwater further acknowledges that the government’s interest in enforcing the traffic laws was sufficient to justify Officer Turek’s decision, based on probable cause, to effect a traffic stop, and that the same interest would have justified his issuing her a citation. What Atwater vehemently denies, though, is that the government had any legitimate interest whatsoever — whether on the basis of reasonable suspicion, probable cause, or even absolute certainty — in effecting her full custodial arrest and transporting her to jail when the issuing of a citation would have fully protected and vindicated all of the government’s interests.

“The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation.” Id. at 28-29, 88 S.Ct. 1868; see also United States v. Place, 462 U.S. 696, 707-08, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The mere fact that Officer-Turek was justified in pulling At-water over, and would have been justified in issuing her a citation, does not necessarily mean that he was justified in taking the far more intrusive step of effecting her full custodial arrest, complete with behind-the-back handcuffing, transporting to jail, and booking. “In justifying [a] particular intrusion [a] police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. In other words, to justify each successive, increasingly stringent intrusion on an individual’s liberty and privacy interests, a police officer must at a minimum be able to articulate some reason why it was necessary to effect the further intrusion. The articulated reason does not need to be independent of the reasons that justify the initial intrusions: “The test is whether those interests are sufficiently substantial, not whether they are independent of the interest in investigating crimes effectively and apprehending suspects.” Place, 462 U.S. at 704, 103 S.Ct. 2637. But if the identified reasons for both the initial and *250the successive intrusions are the same, a police officer must be able to advance a plausible claim that the initial intrusions were inadequate fully to serve the proffered governmental interests.2 If the officer cannot plausibly make that claim — in other words, if there were no legitimate reasons for the further intrusions — then the heightened intrusions are by definition “unreasonable.”

I agree with the majority that the courts should avoid getting into the business of micro-managing arrests. I do not agree, however, that a jurisprudence that is faithful to the fundamental principles of the Fourth Amendment — and that thus would find a Fourth Amendment violation in the instant case — requires the courts to engage in such a practice. In the overwhelming majority of cases, when a police officer has probable cause to believe that an individual has violated or is violating the law, there are good and obvious reasons for that officer to arrest the individual. Examples of reasons that justify a police officer’s effecting an arrest include risk of flight, see United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); need to interrogate an individual or search him for evidence, see New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990); and need to protect the community from any threat that an individual poses to its safety, see generally Bass v. Robinson, 167 F.3d 1041, 1045 (6th Cir.1999); Dunn v. Denk, 79 F.3d 401, 408 (5th Cir.1996), cert. denied, 519 U.S. 813, 117 S.Ct. 61, 136 L.Ed.2d 23 (1996).

Clearly, none of these or other similar reasons are applicable to Officer Turek’s arrest of Atwater. She is a local resident, well-known to Officer Turek. There is no indication that she posed even a minimal flight risk. The evidence amply demonstrates that she did not pose any threat to the officer or the community. And there was no need to conduct any further investigation, as the full extent of Atwater’s violation of the seatbelt law had already been clearly ascertained. By this process of elimination, then, the one and only conclusion that can be reached on the evidence is that the sole reason Officer Turek arrested Atwater was his determination to inflict punishment on her, above and beyond the $50.00 fine prescribed by Texas law. Not only is the arresting officer’s personal desire to punish a constitutionally illegitimate reason under the Fourth Amendment for effecting a seizure; it is also, at least potentially, an independent violation of the Fifth and Fourteenth Amendments, which permit the infliction of punishment only after a formal adjudication. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.1993). Allowing Officer Turek to skate here gives the officer on the street carte blanche to be a one-person cop cum judge cum jury cum executioner: In effect, he can arrest, charge, try, convict, and both assess and inflict punishment.

The desire of the majority of my esteemed colleagues to arrive at a simple, bright-line rule that can be easily applied by officers in the field is both understandable and laudable.3 But such “a rigid all-or-*251nothing model of justification and regulation under the Amendment” ignores the complexity of real-world events and thus fails to remain faithful to the fundamental principles underlying the Fourth Amendment. See Terry, 392 U.S. at 17, 88 S.Ct. 1868. It also has the unfortunate effect of licensing the admittedly rare rogue patrol officer to inflict vigilante punishment on a citizen under the guise of an arrest — a state of affairs that the Constitution clearly does not tolerate.

The rule that I would apply to this case has the virtue of being just as simple as the majority’s, and thus just as easy for the police to apply in the myriad complex and confusing situations that they regularly encounter, without, however, jettisoning the fundamental principles embodied in the Fourth Amendment. Simply stated: Before a police officer can constitutionally place an individual under full custodial arrest, even with probable cause, the officer must have a plausible, articulable reason for effecting such an intrusion — a reason other than a desire on the part of the officer to punish the individual for his or her conduct.4 This is hardly a burdensome imposition on the police; I cannot see any reason for the police to complain about having to articulate some manner of justification for the significant intrusion on Fourth Amendment privacy and liberty interests inherent in effecting any full custodial arrest.

Try as I may, I can discern no legitimate justification whatsoever for Officer Turek’s lamentable decision to arrest, handcuff, transport, book, and jail Atwa-ter; conversely, I see every indication that Officer Turek’s sole purpose in doing so was unilaterally to inflict an illegitimate— and unconstitutional — punishment on her. For these reasons, I must respectfully dissent.

. Thus, the Supreme Court has held that the government’s interest in protecting police officers is sufficient to justify a limited "stop and frisk” of an individual when supported by reasonable suspicion that the individual is carrying a weapon. Terry, 392 U.S. at 27, 88 S.Ct. 1868. But the same governmental interest is insufficient to justify the "wholly different kind of intrusion” involved in an arrest absent a greater degree of certainty — namely, probable cause — that the seizure will vindicate the governmental interest in question. Id at 26, 88 S.Ct. 1868.

Similarly, although reasonable suspicion is sufficient to justify a "stop and frisk” for the purpose of protecting the police, the same quantum of certainty is insufficient to justify a "stop and frisk” for the less important and more generalized governmental interest in investigating and preventing crime. Id at 22-23, 26-27, 88 S.Ct. 1868 (holding that a generalized interest in crime prevention justifies "approachfing] a person for purposes of investigating possibly criminal behavior,” but that it is "the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon” that supplies the justification for the intrusion involved in a stop and frisk). The Supreme Court applied the same framework in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), when it held that the government's interest in enforcing the criminal laws is sufficient to justify an arrest that is supported by probable cause to believe that a suspect has committed a burglary, but that the government cannot employ the more extreme form of seizure involved in the use of deadly force absent the more important governmental interest of protecting the public from the threat of serious bodily harm.

. This is an objective standard rather than a subjective one. See Whren v. United States, 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("[T]he Fourth Amendment’s concern with 'reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.”). Thus, the question is not whether the police officer had a plausible reason in mind at the time of the arrest, but rather whether the facts, viewed objectively and from a distance, admit of a plausible reason justifying the arrest.

. The majority claims that its holding is mandated by language found in Whren, 517 U.S. at 818, 116 S.Ct. 1769 ("Where probable cause has existed, the only cases in which we have found it necessary actually to perform the 'balancing’ analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual’s privacy or even physical interests”). Not only is *251this language dicta, however — the Whren court was assessing the validity of a traffic stop, not a full custodial arrest — but it arguably supports my position rather than the majority’s. "Extraordinary” is defined in Webster’s Dictionary as "going beyond what is usual, regular, or customary.” WEBSTER’S SEVENTH NEW COLLEGIATE DICTIONARY 296 (1965). Of course, what qualifies as "usual, regular, or customary” is entirely dependent on the circumstances; an action that would be deemed an extraordinary response to one set of facts might be thought quite ordinary and commonplace if the facts were different. It need hardly be said that a full custodial arrest, complete with behind-the-back-handcuffing, transporting to jail, and booking, is an extraordinary response to a local mother’s daytime seatbelt violation.

. This is an objective standard, rather than a subjective one. See supra note 2.