165 F.3d 380 (5th Cir. 1999), 98-50302, Atwater v. City of Lago Vista

Docket Nº:98-50302.
Citation:165 F.3d 380
Party Name:Gail ATWATER, Individually; Michael Haas, Dr., As next friend of Anya Savannah Haas and Mackinley Xavier Haas, Plaintiffs-Appellants, v. CITY OF LAGO VISTA, Bart Turek, and Frank Miller, Chief of Police, Lago Vista, Defendants-Appellees.
Case Date:January 29, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 380

165 F.3d 380 (5th Cir. 1999)

Gail ATWATER, Individually; Michael Haas, Dr., As next

friend of Anya Savannah Haas and Mackinley Xavier

Haas, Plaintiffs-Appellants,


CITY OF LAGO VISTA, Bart Turek, and Frank Miller, Chief of

Police, Lago Vista, Defendants-Appellees.

No. 98-50302.

United States Court of Appeals, Fifth Circuit

January 29, 1999

Page 381

Pamela Ann McGraw, Debra Irwin, McGraw, Brinkley & Irwin, Robert Charles DeCarli, Austin, TX, for Plaintiffs-Appellants.

William W. Krueger, III, Joanna Rae Lippman, Fletcher & Springer, Austin, TX, for Defendants-Appellees.

Page 382

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

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.


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 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 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

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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 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 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.


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., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


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 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.


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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...

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