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Jewish World Review Dec. 13, 2000 / 16 Kislev 5761
Philip Terzian
The plaintiff in this case is a Texas housewife and mother named Gail Atwater. Three years
ago she was driving her son and daughter, then aged four and six, home from soccer practice
through the quiet residential streets of Lago Vista, near Austin. Her pickup truck, moving
along at 15 miles per hour, contained Mrs. Atwater, her two small children and, according to
The New York Times, "two tricycles, a bicycle, an Igloo cooler, a bag of charcoal toys, food
and two pairs of childrens' shoes. No one in the truck was wearing a seat belt."
It is against the law in Texas to drive without wearing a seat belt, and Mrs. Atwater's
unbelted status attracted the attention of a member of the Lago Vista Police Department, one
Bart Turek, who stopped her and ordered her out of her truck. Officer Turek screamed at Mrs.
Atwater that they had met before, as indeed they had: Some months earlier he had pulled her
over, suspecting (wrongly, as it turned out) that her son was not wearing his seat belt. This
time, however, he had Mrs. Atwater and her children, and he had them cold. He told Mrs. Atwater
that now she was going to jail, and she did.
In front of her two crying, terrified young children, Officer Turek yanked Mrs. Atwater's
arms behind her, put her in handcuffs, and took her to the Lago Vista jail, where she
languished for an hur before posting bond. A friend was dispatched to retrieve the young boy
and girl, and take them home until their mother returned. Mrs. Atwater ultimately pleaded no
contest to the misdemeanor charge of neglecting to put on her seat belt, and paid a $50 fine.
Now the genuine legal adventure begins. Mrs. Atwater and her husband, arguing that her
Fourth Amendment rights against unreasonable search and seizure had been abused, brought suit
against Officer Turek, the police chief and the city of Lago Vista. The suit was dismissed in
federal court in Austin, reinstated by a three-judge panel of the Fifth Circuit of the U.S.
Court of Appeals in New Orleans, and then thrown out again by the full Fifth Circuit.
When Mrs. Atwater's attorney appeared before the U.S. Supreme Court last week, Justice
Sandra Day O'Connor greeted him with the cheery observation that "You've got the perfect case!"
But things went downhill from there. The justices were evidently concerned about
proportionality -- there was no good reason to handcuff and arrest Gail Atwater, and throw her
in jail -- but equally concerned about fashioning a rational solution to the problem of who
gets arrested and jailed by cops, and why.
Mrs. Atwater's contention is that police should not arrest and incarcerate people who have
committed minor traffic offenses involving fines, and who pose no threat to the public safety
or flight from the jurisdiction. But to quote the Times again: "The question of whether the
Constitution permits an arrest in such a situation -- complete with handcuffs, booking and
impounding and searching the truck -- is surprisingly unresolved."
The justices seemed largely stymied by the prospect of setting some standard that might be
difficult to enumerate or hard to enforce. And the state of Texas argued that the police have
always enjoyed wide latitude with respect to arrests: Forcing them to meet some test before
arresting people who have done nothing serious would needlessly complicate the enforcement of
la. Besides, as an assistant attorney general put it, Officer Turek could not be sure if Gail
Atwater and her two young children were armed, or otherwise a threat to Lago Vista.
Of course, it is possible that Bart Turek can't tell the difference between a soccer mom
and a serial murderer. But the telling detail in this story is the officer's professional
attitude: His screaming demeanor, and his anger that Mrs. Atwater had slipped from his grasp
some months before. As has often been said, as far as police are concerned, contempt of cop is
a serious crime.
Unfortunately, the justices are unlikely to see things Mrs. Atwater's way. After all, as
Justice Anthony Kennedy said, "It is not a constitutional violation for a police officer to be
a jerk." No, it is not. But it's not much fun to run afoul of a jerk with a badge and gun,
either, and the police wield extraordinary power. Why should a law-abiding citizen, guilty of a
minor traffic infraction, be treated like a criminal in a police state, or subject to the whims
of a violent cop?
"How bad is the problem out there?" asked Justice David Souter. Well, just ask Amadou
Diallo -- except that he's
12/11/00: The 'Net horrifies Stephen King
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