- The Washington Times - Tuesday, May 1, 2001

What was astonishing about last weeks 5-4 Supreme Court decision in Atwater vs. City of Lago Vista (April 24, 2001) was not that warrantless arrests for non-trivial misdemeanors were held constitutionally irreproachable, but that the ruling provoked vehement dissents and criticism. The gist of the unalarming saga was as follows.
Any parent knows leaving small children in the front seat of an auto unbelted or without a fastened car seat invites tragedy. It epitomizes irresponsibility. Moments of carefree rambunctiousness can instantly turn into a lifetime of mourning.
The Texas criminal code thus makes the inherently reckless transportation of toddlers in the front seat without secure belts a misdemeanor punishable by a $25-$50 fine. Driving without wearing a seatbelt is likewise illegal. Peace officers enjoy discretion to arrest violators in lieu of a citation. But arrests invidiously targeted on racial or ethnic minorities or otherwise would violate the equal protection clause of the 14th Amendment, including arrests solely for spite.
Gail Atwater was arrested for driving a pickup truck with her 3-year-old son and 5-year-old daughter left free to roam and cavort in the front seat. She was also unbuckled. Her police encounter was decidedly unpleasant and rough. She was handcuffed, placed in a squad car, driven to the local police station, and instructed to remove her shoes, jewelry and eyeglasses and to empty her pockets. A "mug shot" was taken, and Mrs. Atwater sat in a jail cell for one hour before a magistrate released her on a $310 bond. She ultimately pleaded no contest to the misdemeanor offenses and paid a $50 fine.
The handcuffing and arrest ordeal humiliated, embarrassed and traumatized Mrs. Atwater. But such mortification is the stuff of deterrence and reform. It leaves a nightmare of shame not soon forgotten, but for that same reason the culprit is inspired to prospective obedience. Indeed, Mrs. Atwater testified that the arrest, "just never leaves us. Its a conversation we have every other day, once a week, and its it raises its head constantly in our lives." She will probably never again jeopardize her childrens lives by ignoring the Texas seatbelt law. Maybe she would have been equally obedient with a mere citation and fine. But when the lives of infants are at stake, risks should be minimized. Although Mrs. Atwaters arrest ulcers should not be trivialized, they seem a bargain in comparison to the safety purchased. She does not seem a strong candidate for the Book of Martyrs.
Detractors of the Atwater decision fret that arrest discretion for misdemeanors will be turned against minorities, the indigent, or the uneducated. That indictment, however, lacks the horsepower needed for the constitutional task demanded.
According to the New York Times of April 28, Mrs. Atwater was neither a minority, nor poor, nor unsophisticated, nor low on the social hierarchy. She was a white "soccer mom," who prided herself as a "model citizen" who sat on the soccer board and the PTA, was active in local politics, including attendance at city council meetings, and was au fait about her seatbelt obligations. She acknowledged that the lawsuit against the city was aimed less at redressing her own humiliation than to protect hypothetical migrant worker or minority arrestees. But after the expenditure of more than $100,000 in legal fees, Mrs. Atwaters attorney informed the Supreme Court at oral argument that he knew of only one other case of apparent police overreaching namely, an arrest of a girl for eating french fries in a D.C. "zero-tolerance" Metro station. Even there, however, the Metro police swiftly replaced their arrest policy with subway snacker citations. And the ever Argus-eyed American Civil Liberties Union, as amicus curiae, was able to assemble but a handful of misdemeanor arrest abuses nationwide, such as detention for littering or bicycling without a bell or gong. As Justice David Souter underscored in his earthbound majority opinion, "The country is not confronting anything like an epidemic of unnecessary minor-offense arrests."
Justice Sandra Day OConnor in dissent sang a doleful aria of potential arrest abuses to captivate her audience: "s the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to full arrest and the searches concomitant to that arrest. An officers subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop."
Enlightened law, however, builds on experience, not on fevered imaginations. As Justice Samuel Miller lectured more than a century ago in United States vs. Lee (1882): "Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depend the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail." In addition, while racial profile arrests may circumvent condemnation under the Fourth Amendment, they are constitutionally redressed under the equal protection clause. Selective law enforcement has been taboo since Yick Wo vs. Hopkins(1886).
Contrary to Justice OConnors overwrought dissent, real life, not intellectual tidiness, is the touchstone of constitutional wisdom.


Bruce Fein is general counsel for the Center for Law and Accountability, a public interest law group headquartered in Virginia.


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