- The Washington Times - Sunday, December 17, 2000

All eyes were fastened on the Supreme Court in recent weeks for the obvious reason: The justices were set-

tling the legal struggle for the presidency. Yet while Al Gore and George W. Bush garnered attention, a far more interesting, and potentially more significant, case was being argued: Atwater vs. Lago Vista.

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 4 and 6, 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 hour 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 5th U.S. Circuit Court of Appeals in New Orleans, and then thrown out again by the full 5th Circuit.

When Mrs. Atwater's attorney appeared before the U.S. Supreme Court earlier this month, 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 law. 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 he's dead.



Philip Terzian is a nationally syndicated columnist.

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