Atwater v. City of Lago Vista, 98-50302

• Decision Date: 24 November 1999
• Docket Number: No. 98-50302,98-50302
• Citation: 195 F.3d 242
• Parties: (5th Cir. 1999) GAIL ATWATER, Individually; and 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 Police Lago Vista, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 242

195 F.3d 242 (5th Cir. 1999)

GAIL ATWATER, Individually; and 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 Police Lago Vista, Defendants-Appellees.

No. 98-50302

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

November 24, 1999

Certiorari Granted June 26, 2000

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

Before KING, Chief Judge, and REYNALDO G. GARZA, POLITZ, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.^*

REYNALDO G. GARZA, Circuit Judge, dissenting. WIENER, Circuit Judge, dissenting. DENNIS, Circuit Judge, dissenting.

EMILIO M. GARZA, Circuit Judge

Plaintiffs-Appellants Gail Atwater ("Atwater") and Michael Haas ("Haas"), as next friend of Anya Savannah Haas and Mackinley Xavier Haas, appealed the district court's grant of summary judgment in favor of Defendants-Appellees Officer Bart Turek ("Officer Turek"), Police Chief Frank Miller ("Chief Miller"), and the City of Lago Vista. A panel of this court reversed in part and remanded. See Atwater v. City of Lago Vista, 165 F.3d 380 (5th Cir. 1999), reh'g en banc granted, 171 F.3d 258 (5th Cir. 1999). We vacated the panel opinion, see 5th Cir. R. 41.3, and granted rehearing en banc.

I

Officer Turek arrested Gail Atwater for failing to wear her seat belt, failing to fasten her children in seat belts, driving without a license, and failing to provide proof of insurance. Officer Turek handcuffed Atwater and took her to jail, where she spent approximately one hour. Atwater appeared before a magistrate and was released after posting bond.

Atwater and her husband, Haas, subsequently brought various federal and state law claims against Officer Turek, Chief Miller, and the City of Lago Vista, arising out of Atwater's arrest.¹ Officer Turek, Chief Miller and the City of Lago Vista moved for summary judgment. The district court granted this motion.

A panel of this court reversed the district court's summary judgment with respect to Atwater's Fourth Amendment unreasonable seizure claim against Officer Turek and the City of Lago Vista and concluded that Officer Turek was not entitled to qualified immunity. See Atwater, 165 F.3d at 389.² We granted rehearing en banc to reconsider the panel decision.

II

To determine the constitutionality of an arrest, "we must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental 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 arrest is 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). In other words, when probable cause exists to believe that a suspect is committing an offense, the government's interests in enforcing its laws outweigh the suspect's privacy interests, and an arrest of 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 a reasonable intrusion under the Fourth Amendment . . . .").

We deviate from this principle--that an arrest based on probable cause is reasonable under the Fourth Amendment--only when an arrest is "conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests."³ 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 analysis notwithstanding the existence of probable cause when a search or seizure involves deadly force, an unannounced entry into a home, entry into a home without a warrant, or physical penetration of the body. See id. (reviewing cases).

After reviewing the record, we conclude that Officer Turek had probable cause to arrest Atwater and that he did not conduct the arrest in such an "extraordinary manner." Neither party disputes that Officer Turek had probable cause to arrest Atwater. Atwater admits that she was not wearing her seat belt and that she had not belted in her children. Operating a motor vehicle without wearing a seat belt violates Texas law,⁴ and Officer Turek had discretion to arrest Atwater without a warrant, see Tex. Transp. Code 543.001; United States v. Wadley, 59 F.3d 510, 512 (5th Cir.1995) ("Probable cause for a warrantless arrest exists when the totality of facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable 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, 116 S. Ct. at 1776, 135 L. Ed. 2d at . The only physical contact between Officer Turek and Atwater occurred when he placed her in handcuffs. Atwater admits that she did not suffer any physical harm during or as a result of the arrest. We therefore conclude that, because it was based on probable cause and because it was not conducted in the above-described "extraordinary manner," Officer Turek's arrest of Atwater was reasonable under the Fourth Amendment.⁵ See id.

III

Accordingly, we AFFIRM the district court's summary judgment.

DISSENTBY: REYNALDO G. GARZA; WIENER; DENNIS

DISSENT: REYNALDO G. GARZA, Circuit Judge, dissenting:

I believe that the original opinion of the panel that I was on, which can be found at 165 F.3d 380 (5th Cir. 1999), is sufficient to show that the seizure and handcuffing of Mrs. Atwater in this case was unreasonable and uncalled for.

I write separately in dissent because I believe that our colleagues in the majority are wrong 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. As pointed 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 and no more. Her offense would in no way have been a danger to any one else, but herself and her children.

I have been a Texas lawyer for over sixty years and an Article III Federal Judge in Texas for over thirty-eight years. I think that I can take judicial notice of the fact that in a 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 the stop or the arrest is to give the accused a citation, which shows the charge against the person driving the car, a notice to appear before a municipal judge on a certain day at a certain time and signed by the accusing officer; which also adds a paragraph that is signed by the accused that they agree to appear on the date and time stated and that is the end of the story.

There are times when during a traffic stop an officer finds that the driver for instance, is driving while under the influence of either alcohol or drugs; the officer sees a gun on the seat of the car; the car smells of marihuana; the officer sees packages of cocaine or some other reason, like a check of the license number of the person stopped shows that the person is a fugitive or has another charge pending; in which case the officer that made the stop seizes the person and takes him or her to the police station to await being taken before a Magistrate, where the officer makes the complaint against the person and 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 be seized and taken to the police station where she waited for an hour for a Magistrate to release her.

The majority setting aside the panel opinion makes no mention of an affidavit that is in the Record Excerpts of appellants, Gail Atwater and her husband, on behalf of two of their children. The affidavit is that of Keith A. Campbell, who was a member of the Recruitment Unit of the Austin Police Department from August 1994 to March 1997. In the affidavit he makes mention of all the things he did when screening applicants for positions in the Austin Police Department. Mr. Campbell states he has reviewed the personnel file of Michael Barton Turek and he can state without reservation that he would not have recommended this individual to be hired by the Austin Police Department for the following 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.

3. Failed to provide complete information.

Mr. Campbell's affidavit is an eye-opener of the kind of person Officer Turek, who saw 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 and lack of training of Turek.

Under Texas law, the City of Lago Vista is not responsible for the actions of their police officers unless they violate somebody's Constitutional Rights. Our colleagues in the majority seem to think that if an officer has probable cause to make a stop and an arrest it immunizes them to where they can do whatever they please. This approach is wrong because in my view, probable cause will never immunize a constitutional violation.

Officer Turek had probable...