195 F.3d 242 (5th Cir. 1999), 98-50302, Atwater v. City of Lago Vista

Docket Nº:98-50302
Citation:195 F.3d 242
Party Name: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.
Case Date:November 24, 1999
Court:United States Courts of Appeals, Court of Appeals for the 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,


CITY OF LAGO VISTA; BART TUREK; and FRANK MILLER, Chief Police Lago Vista, Defendants-Appellees.

No. 98-50302

United States Court of Appeals, Fifth Circuit

November 24, 1999

Certiorari Granted June 26, 2000

Page 243

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


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

Page 244

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.


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.


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

Page 245

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

Page 246

(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.


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


[*]Chief Judge King and Judges Jolly, Higginbotham, Davis, Jones, Smith, Duhe, Barksdale, DeMoss, and Benavides concur in the majority opinion. Judge Parker concurs in the dissent of Judge Reynaldo G. Garza. Judges Reynaldo G. Garza, Politz, and Parker concur in the dissent 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 (5th Cir. 1999). Judges Reynaldo G. Garza, Politz, and Parker concur in the dissent of Judge Dennis.

[1] Atwater and Haas alleged causes of action for: (1) Deprivation of Constitutional Rights, (2) Excessive Use of Force, (3) False Imprisonment, (4) Inadequate Training, (5) Failure to Supervise, (6) Intentional Infliction of Emotional Distress, (7) Assault and Battery, (8) Grossly Negligent Hiring and Retention, (9) Conspiracy to Formulate and Enforce a Municipal Policy to Violate Constitutional Rights, and (10) Common Fund.

[2] 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.

[3] Atwater advances an alternative argument for the first time in her en banc brief. She argues that in determining whether her arrest violated the Fourth Amendment, we should follow the common law rule that existed when the Fourth Amendment was promulgated, which she claims limited the circumstances under which a misdemeanant could be arrested without a warrant. She did not 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 (5th Cir. 1999) (noting the common law rule and stating that "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"). 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 (5th 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. Arenson v. Southern Univ. Law Ctr., 53 F.3d 80, 81 (5th Cir. 1995) (per curiam) ("Appellant's request [in his petition for rehearing] for Title VII relief is denied because Arenson waived his Title VII claim by failing 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 law rule to invalidate warrantless misdemeanor arrests otherwise supported by probable cause. Indeed, the cases uniformly uphold warrantless misdemeanor arrests where probable cause exists, even where variants of the common law standards to which Atwater refers are incorporated into state law and raised before the court. See Vargas-Badillo v. Diaz-Torres, 114 F.3d 3, 6 (1st Cir. 1997) ("To date, neither the Supreme Court nor this circuit ever has held that the Fourth Amendment prohibits warrantless arrests for misdemeanors not committed in the presence of arresting officers."); Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995) (rejecting a Fourth Amendment challenge to a misdemeanor arrest when probable cause existed, even though the arrest may have violated the plaintiff's state right "as an alleged misdemeanant to be arrested only when the misdemeanor is committed in the presence of the arresting officer"); Fields v. City of South Houston, 922 F.2d 1183, 1189 (5th Cir. 1991) (upholding a misdemeanor arrest supported by probable cause and stating that "the United States Constitution does not require a warrant for misdemeanors not occurring in the presence of the...

To continue reading