                          UNITED STATES COURT OF APPEALS
                                   FIFTH CIRCUIT

                                          ____________

                                          No. 98-50302
                                          ____________


               GAIL ATWATER, Individually; and MICHAEL HAAS, Dr, As next
               friend of Anya Savannah Haas and Mackinley Xavier Haas,


                                              Plaintiffs-Appellants,

               versus


               CITY OF LAGO VISTA; BART TUREK; and FRANK MILLER,
               Chief Police Lago Vista,


                                              Defendants-Appellees.



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

                                       November 24, 1999

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

EMILIO M. GARZA, Circuit Judge:




       *
               Chief Judge King and Judges Jolly, Higginbotham, Davis, Jones, Smith, Duhé,
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.
       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




       1
               Atwater and Haas alleged causes o f 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-
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, “[w]e 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 wo rds, 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.


        2
              The panel affirmed t he 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,

                                                   -3-
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



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 “[a]lthough 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 arrest ed 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
“[t]he United States Constitution does not require a warrant for misdemeanors not occurring in the
presence of the arresting officer”); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) (“The
requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless
arrest is not grounded in the Fourth Amendment.”); Street v. Surdyka, 492 F.2d 368, 371-72 (4th Cir.
1974) (“We do not think the fourth amendment should now be interpreted to prohibit warrantless
arrests for misdemeanors committed outside an officer's presence.”); cf. Whren, 517 U.S. at 819, 116
S. Ct. at 1777, 135 L. Ed. 2d at __ (“Here the District Court found that the officers had probable
cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable
under the Fourth Amendment . . . .”).

                                                 -4-
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.


        4
               Section 545.413 of the Texas Transportation Code provides:
      (a) A person commits an offense if the person:
       (1) is at least 15 years of age;
       (2) is riding in the front seat of a passenger car while the vehicle is being operated;
       (3) is occupying a seat that is equipped with a safety belt; and
       (4) is not secured by a safety belt.
TEX. TRANS. CODE ANN. § 545.413
        5
                 Having concluded that Officer Turek’s arrest of Atwater did not violate the Fourth
Amendment, we need not address whether Officer Turek is entitled to qualified immunity. See, e.g.,
Channer v. Hall, 112 F.3d 214, 219 n.8 (5th Cir. 1997) (“Because we hold that Channer's Thirteenth
Amendment rights were not violated, we do not reach the issue of qualified immunity.”). Nor do we
discuss the liability of the City of Lago Vista. See Doe on Behalf of Doe v. Dallas Indep. Sch. Dist.,

                                                  -5-
                                                III

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




153 F.3d 211, 216 (5th Cir. 1998) (“Thus, § 1983 municipal liability may be imposed when (1) the
enforcement of a municipal policy or custom was (2) ‘the moving force’ of the violation of federally
protected rights.”) (quotations omitted).

                                                -6-
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

                                                -7-
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

                                               -8-
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.




                                                -9-
       Officer Turek had probable cause to stop the car that was being driven by Mrs. Atwater

for failure to have her seatbelt on, but he should have given her a citation to appear instead of

seizing her, putting handcuffs behind her back, and taking her to the police station. He would

have taken her children with her except that a neighbor that came on the scene took the children

to her home.



       I strongly believe that my duty under the oath that I have taken, once as a United States

District Judge, then as an Appellate Judge, is to uphold the Constitution and Laws of the United

States. Under Article IV of the Amendments to the Constitution, the seizure is different then

the stop and the arrest of Mrs. Atwater was unreasonable and therefore a violation of the

Constitution of the United States. I cannot see why some of my colleagues are unwilling to say

that the seizure by Officer Turek was unreasonable.




WIENER, Circuit Judge, dissenting:



       Today a majority of this court announces that any full

custodial arrest, replete with transportation to jail and

booking, is per se a reasonable seizure within the meaning of

the Fourth Amendment as long as the arresting officer has


                                              -10-
probable cause to believe that the individual being arrested

has violated the law —— any law, even an innocuous traffic

ordinance.     Not only does this holding ignore the Supreme

Court’s longstanding pronouncements that every Fourth Amendment

analysis must turn on a tripartite balancing of individual

interests, government interests, and the degree of certainty

that the government interest will be furthered by the search

or seizure at issue, but it also turns a blind eye on the

extreme facts of this case; facts that so clearly demonstrate

an unreasonable seizure that those of my colleagues who concur

in the majority opinion should have been tipped off that

something must be critically awry with its reasoning.      The

result reached is so counterintuitive that it cries out for a

deeper look.     As the Fourth Amendment requires that every

seizure must be effected pursuant to a legitimate governmental

interest, and as the only conceivable reason for the full

custodial arrest at issue here was Officer Turek’s illegitimate

desire to punish Atwater, I respectfully dissent.



                               I

    When, as here, the facts virtually speak for themselves,

it is disappointing —— even if not surprising —— that the


                              -11-
majority opinion goes out of its way to sanitize them.              The

instant facts reveal that this case is not truly about a

traffic stop followed by an arrest; it is about a police

officer going to extreme lengths to satisfy a personal crusade

or possibly even a vendetta.       The evidence would allow a jury

reasonably   to   infer   that   Officer   Turek   had   been   eagerly

awaiting the opportunity to threaten, frighten, and humiliate

Gail Atwater:     Approximately two months prior to the incident

in question, Officer Turek had pulled Atwater over for a

putative seatbelt violation; however, much to his dismay, he

had been forced to let her drive off without his issuing her

a citation when he discovered that she and the other occupants

of her car had their seatbelts securely fastened.

    Officer Turek’s frustration over this prior incident was

made readily apparent from the very beginning of the traffic

stop and arrest that are now under review.          When Atwater was

pulled over this time, she was driving her two children, ages

six and four, home from soccer practice.       She was traveling in

a residential neighborhood, on bone-dry streets, in broad

daylight, and at a reasonable, lawful rate of speed.               When

Officer Turek observed that neither Atwater nor her children

were wearing seatbelts, he proceeded to pull her car over.


                                  -12-
According to the testimony, Officer Turek approached Atwater’s

car and yelled at her in a belligerent and threatening manner,

pointing his finger menacingly in Atwater’s face and terrifying

her and her young children.      Officer Turek screamed that they

had “had this conversation before” and that this time she

(Atwater) was going to jail.

    Officer Turek then ordered Atwater to produce her driver’s

license and proof of insurance. Atwater informed him that both

documents had been in her purse when it was stolen two days

earlier. She did, though, provided him with her license number

and address from her checkbook.         Despite the fact that Officer

Turek   had   seen   Atwater’s   driver’s     license   and   proof   of

insurance when he had pulled her over only weeks earlier, he

proceeded to make good on his promise to take her to jail.

First, he had her step out of her car; next, he handcuffed her

behind her back; then he loaded her into the back of his squad

car and took her to the police station; and there she was

forced to remove her shoes and glasses, empty her pockets, and

allow her “mug shot” to be taken.        Finally, Atwater was placed

in a jail cell and made to wait for approximately one hour

before being produced before a magistrate.




                                 -13-
                                     II

     The law is long and well established that, under the

Fourth Amendment, the scope of a search or seizure “must be

strictly tied to and justified by the circumstances which

rendered its initiation permissible.”             Terry v. Ohio, 392 U.S.

1, 19 (1968) (citation omitted).            Implicit in this simple but

forceful    statement     of   the    law   ——    and   explicit   in   its

application by the Supreme Court to a broad panoply of cases

—— is the precept that the permissibility of any search or

seizure    depends   on   a    balancing     of   (1)   the   government’s

purported interest in effecting the search or seizure, (2)

discounted by the degree of certainty that the search or

seizure will in fact further the government’s interest, against

(3) the extent of any infringement on the targeted individual’s

constitutionally protected privacy and liberty interests.6

     6
      Thus, the Supreme Court has held that the government’s
interest in protecting police officers is sufficient to justify a
limited “stop and frisk” of an individual when supported by
reasonable suspicion that the individual is carrying a weapon.
Terry, 392 U.S. at 27.     But the same governmental interest is
insufficient to justify the “wholly different kind of intrusion”
involved in an arrest absent a greater degree of certainty ——
namely, probable cause —— that the seizure will vindicate the
governmental interest in question. Id at 26.
     Similarly, although reasonable suspicion is sufficient to
justify a “stop and frisk” for the purpose of protecting the
police, the same quantum of certainty is insufficient to justify a
“stop and frisk” for the less important and more generalized
governmental interest in investigating and preventing crime. Id at
22-23, 26-27 (holding that a generalized interest in crime

                                     -14-
        The problem I perceive with the majority opinion is that

its   analysis   focuses    solely   on   the   quantum   of    certainty

involved in the case, to the exclusion of the other two

relevant variables: the importance of the government’s interest

and the extent of the intrusion on the individual’s liberty and

privacy interests.     This is all the more regrettable in light

of the fact that quantum of certainty is not even at issue

here:    Atwater concedes that Officer Turek had probable cause

to believe that she had broken the law by failing to wear a

seatbelt.      Indeed, Atwater further acknowledges that the

government’s     interest   in   enforcing      the   traffic   laws   was

sufficient to justify Officer Turek’s decision, based on

probable cause, to effect a traffic stop, and that the same

interest would have justified his issuing her a citation. What

Atwater vehemently denies, though, is that the government had



prevention justifies “approach[ing] a person for purposes of
investigating possibly criminal behavior,” but that it is “the more
immediate interest of the police officer in taking steps to assure
himself that the person with whom he is dealing is not armed with
a weapon” that supplies the justification for the intrusion
involved in a stop and frisk). The Supreme Court applied the same
framework in Tennessee v. Garner, 471 U.S. 1 (1985), when it held
that the government’s interest in enforcing the criminal laws is
sufficient to justify an arrest that is supported by probable cause
to believe that a suspect has committed a burglary, but that the
government cannot employ the more extreme form of seizure involved
in the use of deadly force absent the more important governmental
interest of protecting the public from the threat of serious bodily
harm.

                                  -15-
any legitimate interest whatsoever —— whether on the basis of

reasonable    suspicion,     probable     cause,    or   even   absolute

certainty    ——   in   effecting   her    full   custodial   arrest   and

transporting her to jail when the issuing of a citation would

have fully protected and vindicated all of the government’s

interests.

    “The Fourth Amendment proceeds as much by limitations upon

the scope of governmental action as by imposing preconditions

upon its initiation.”      Id. at 28-29; see also United States v.

Place, 462 U.S. 696, 707-08 (1983). The mere fact that Officer

Turek was justified in pulling Atwater over, and would have

been justified in issuing her a citation, does not necessarily

mean that he was justified in taking the far more intrusive

step of effecting her full custodial arrest, complete with

behind-the-back handcuffing, transporting to jail, and booking.

“In justifying [a] particular intrusion [a] police officer must

be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant that intrusion.”       Terry, 392 U.S. at 21.           In other

words, to justify each successive, increasingly stringent

intrusion on an individual’s liberty and privacy interests, a

police officer must at a minimum be able to articulate some


                                   -16-
reason why it was necessary to effect the further intrusion.

The articulated reason does not need to be independent of the

reasons that justify the initial intrusions: “The test is

whether those interests are sufficiently substantial, not

whether they are independent of the interest in investigating

crimes effectively and apprehending suspects.” Place, 462 U.S.

at 704. But if the identified reasons for both the initial and

the successive intrusions are the same, a police officer must

be   able   to    advance   a   plausible    claim   that   the   initial

intrusions       were   inadequate   fully   to   serve   the   proffered

governmental interests.7        If the officer cannot plausibly make

that claim —— in other words, if there were no legitimate

reasons for the further intrusions —— then the heightened

intrusions are by definition “unreasonable.”

     I agree with the majority that the courts should avoid

getting into the business of micro-managing arrests.              I do not

agree, however, that a jurisprudence that is faithful to the

fundamental principles of the Fourth Amendment —— and that thus


     7
       This is an objective standard rather than a subjective one.
See Whren v. United States, 517 U.S. 806, 814 (1996) (“[T]he Fourth
Amendment’s concern with <reasonableness’ allows certain actions to
be taken in certain circumstances, whatever the subjective
intent.”). Thus, the question is not whether the police officer
had a plausible reason in mind at the time of the arrest, but
rather whether the facts, viewed objectively and from a distance,
admit of a plausible reason justifying the arrest.

                                     -17-
would find a Fourth Amendment violation in the instant case ——

requires the courts to engage in such a practice.       In the

overwhelming majority of cases, when a police officer has

probable cause to believe that an individual has violated or

is violating the law, there are good and obvious reasons for

that officer to arrest the individual.    Examples of reasons

that justify a police officer’s effecting an arrest include

risk of flight, see United States v. Salerno, 481 U.S. 739, 745

(1987); need to interrogate an individual or search him for

evidence, see New York v. Harris, 495 U.S. 14 (1990); and need

to protect the community from any threat that an individual

poses to its safety, see generally Bass v. Robinson, 167 F.3d

1041, 1045 (6th Cir. 1999); Dunn v. Denk, 79 F.3d 401, 408 (5th

Cir. 1996), cert. denied, 519 U.S. 813 (1996).

    Clearly, none of these or other similar reasons are

applicable to Officer Turek’s arrest of Atwater.      She is a

local resident, well-known to Officer Turek.      There is no

indication that she posed even a minimal flight risk.      The

evidence amply demonstrates that she did not pose any threat

to the officer or the community.     And there was no need to

conduct any further investigation, as the full extent of

Atwater’s violation of the seatbelt law had already been


                              -18-
clearly ascertained. By this process of elimination, then, the

one and only conclusion that can be reached on the evidence is

that the sole reason Officer Turek arrested Atwater was his

determination to inflict punishment on her, above and beyond

the $50.00 fine prescribed by Texas law.         Not only is the

arresting     officer’s    personal     desire   to     punish   a

constitutionally illegitimate reason under the Fourth Amendment

for effecting a seizure; it is also, at least potentially, an

independent violation of the Fifth and Fourteenth Amendments,

which permit the infliction of punishment only after a formal

adjudication. See Bell v. Wolfish, 441 U.S. 520 (1979); Kenedy

v. Mendoza-Martinez, 372 U.S. 144 (1963); Valencia v. Wiggins,

981 F.2d 1440 (5th Cir. 1993).    Allowing Officer Turek to skate

here gives the officer on the street carte blanche to be a one-

person cop cum judge cum jury cum executioner:        In effect, he

can arrest, charge, try, convict, and both assess and inflict

punishment.

     The desire of the majority of my esteemed colleagues to

arrive at a simple, bright-line rule that can be easily applied

by officers in the field is both understandable and laudable.8

     8
       The majority claims that its holding is mandated by language
found in Whren, 517 U.S. at 818 (“Where probable cause has existed,
the only cases in which we have found it necessary actually to
perform the ‘balancing’ analysis involved searches or seizures

                                 -19-
But such “a rigid all-or-nothing model of justification and

regulation under the Amendment” ignores the complexity of real-

world   events    and   thus    fails      to   remain   faithful   to   the

fundamental principles underlying the Fourth Amendment.                  See

Terry, 392 U.S. at 17.         It also has the unfortunate effect of

licensing the admittedly rare rogue patrol officer to inflict

vigilante punishment on a citizen under the guise of an arrest

—— a state of affairs that the Constitution clearly does not

tolerate.

     The rule that I would apply to this case has the virtue of

being just as simple as the majority’s, and thus just as easy

for the police to apply in the myriad complex and confusing

situations that they regularly encounter, without, however,

jettisoning the fundamental principles embodied in the Fourth

Amendment.       Simply stated:         Before a police officer can


conducted in an extraordinary manner, unusually harmful to an
individual’s privacy or even physical interests”). Not only is
this language dicta, however —— the Whren court was assessing the
validity of a traffic stop, not a full custodial arrest —— but it
arguably supports my position rather than the majority’s.
“Extraordinary” is defined in Webster’s Dictionary as “going beyond
what is usual, regular, or customary.”      WEBSTER’S SEVENTH NEW
COLLEGIATE DICTIONARY 296 (1965). Of course, what qualifies as
“usual, regular, or customary” is entirely dependent on the
circumstances; an action that would be deemed an extraordinary
response to one set of facts might be thought quite ordinary and
commonplace if the facts were different. It need hardly be said
that a full custodial arrest, complete with behind-the-back-
handcuffing, transporting to jail, and booking, is an extraordinary
response to a local mother’s daytime seatbelt violation.

                                    -20-
constitutionally place an individual under full custodial

arrest, even with probable cause, the officer must have a

plausible, articulable reason for effecting such an intrusion

—— a reason other than a desire on the part of the officer to

punish the individual for his or her conduct.9        This is hardly

a burdensome imposition on the police; I cannot see any reason

for the police to complain about having to articulate some

manner of justification for the significant intrusion on Fourth

Amendment privacy and liberty interests inherent in effecting

any full custodial arrest.

      Try as I may, I can discern no legitimate justification

whatsoever for Officer Turek’s lamentable decision to arrest,

handcuff, transport, book, and jail Atwater; conversely, I see

every indication that Officer Turek’s sole purpose in doing so

was       unilaterally   to   inflict    an   illegitimate   ——   and

unconstitutional —— punishment on her.         For these reasons, I

must respectfully dissent.




      9
      This is an objective standard, rather than a subjective one.
See supra note 2.

                                  -21-
DENNIS, Circuit Judge, dissenting:

       I respectfully dissent.

       The majority opinion does not address an important constitutional issue raised by this case,

discussed extensively at oral argument, and fully considered by the en banc court: whether the Fourth

Amendment, by incorporating the common law at the time it was framed, prohibits, as an

unreasonable seizure, the warrant less full custodial arrest of an individual for a fine-only criminal

misdemeanor that does not constitute or involve a breach of the peace.

       The Supreme Court granted certiorari in order to consider this very issue in Ricci v.

Arlington Heights, 116 F.3d 288 (7th Cir. 1997), cert. granted, 118 S.Ct. 679, 139 L.Ed.2d 627, and

cert. dismissed, 523 U.S. 613, 118 S.Ct. 1693, 140 L.Ed.2d 789 (1998). However, after oral

argument the writ of certiorari was dismissed as improvidently granted. See Ricci v. Village of

Arlington Heights, 523 U.S. 613, 118 S.Ct. 1693, 140 L.Ed.2d 789 (1998). The Supreme Court oral

argument transcripts in Ricci suggest that the Court dismissed certiorari as improvidently granted

only because the Court learned for the first time at oral argument that the issue was not actually

presented because Ricci’s arrest had been based on the violation of a civil business license ordinance

rather than a criminal misdemeanor offense. Oral Argument Before the Supreme Court of the United

States (1998 WL 204590) at 57-64, Ricci v. Arlington Heights, 116 F.3d 288 (7th Cir. 1997), cert.

granted, 118 S.Ct. 679, 139 L.Ed.2d 627, and cert. dismissed, 523 U.S. 613, 118 S.Ct. 1693, 140

L.Ed.2d 789 (1998) (No. 97-501).

       The district court’s granting of the defendants’ Rule 12(b)(6) and Rule 56 motions is reviewed

de novo by this court of appeals. See McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558 (5th

Cir. 1995)(failure to state a claim); Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir.


                                                -22-
1994)(summary judgment). In accordance with FED. R. APP. P. 3 and 28, the appellant adequately

noticed and argued to this court the issue of whether the warrantless full custodial arrest of a person

for violation of a fine-only criminal misdemeanor seat-belt law, involving no breach of the peace,

violates that person’s Fourth Amendment rights.

        The foregoing question of law is the only issue presented by this appeal. The district court

concluded that the plaintiffs “have not provided evidence of any violation of a constitutional right,

much less a violation of a clearly established constitutional right.” The district court based its ruling

primarily on the specific finding that the “only alleged ‘force’ and ‘imprisonment’ arose out [of]

Turek’s arrest of Atwater for the seat belt violations as clearly authorized by Texas law.”

        For purposes of the motion for summary judgment, the district court found that Turek,

immediately upon stopping Atwater, yelled at her, “We’ve met before!” and “You’re going to jail!”

Based upon these findings and the evidence, it reasonably can be inferred that Turek initially placed

Atwater in full custodial arrest based only on the seat belt violations and called for a back up to assist

him in his seizure of Atwater, her children, and her vehicle. Consequently, this appeal does not raise

the question of whether Turek constitutionally could have made a full custody arrest of Atwater for

the additional charges he sometime later filed against her of failure to provide proof of insurance and

failure to have her driver’s license in her possession. Moreover, the failure to provide evidence of

insurance or financial responsibility in itself is not a crime or offense under Texas law. See TEX.

TRANSP. CODE § 601.053 (West 1999); Op. Tex. Atty. Gen. 1983, No. MW-577. The failure to carry

or exhibit a driver’s license is a fine-only, non-peace breaching misdemeanor, if, as in this case, it is

not a third or subsequent conviction within one year after the date of the second such conviction. See

TEX. TRANSP. CODE § 521.025. Finally, because Turek recently before had stopped Atwater and had


                                                  -23-
examined her driver’s license and evidence of insurance, there is a genuine factual dispute, not

amenable to summary judgment, as to whether Turek had probable cause to file the additional charges

against Atwater, which were summarily dismissed the same day by the magistrate.

       I cannot join the majority opinion because it does not acknowledge or address the arguments

in favor of the proposition that an unnecessary full custodial arrest of a person for a fine- only

criminal misdemeanor involving no breach of the peace is an unreasonable seizure against which the

people have been guaranteed a right to be secure in their persons by the Fourth Amendment. Those

arguments were set forth fully and very persuasively by the briefs of the petitioner and his amici in

Ricci. See, e.g., Petitioner’s Brief (1998 WL 74152), Reply Brief of Petitioner (1998 WL 167353),

Brief of the American Civil Liberties Union and the ACLU of Illinois in Support of Petitioner (1998

WL 77846), Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in

Support of Petitioner (1998 WL 77850), Brief of the Institute for Justice as Amicus Curiae in

Support of Petitioner (1998 WL 77847), Ricci v. Arlington Heights, 116 F.3d 288 (7th Cir. 1997),

cert. granted, 118 S.Ct. 679, 139 L.Ed.2d 627, and cert. dismissed, 523 U.S. 613, 118 S.Ct. 1693,

140 L.Ed.2d 789 (1998) (No. 97-501). In summary, I read the arguments to be as follows:         The

Fourth Amendment provides that “[t]he right of the people to be secure in their persons... against

unreasonable... seizures, shall not be violated[.]”      When determining whether a particular

governmental action violates the Fourth Amendment, the Supreme Court has said that the first inquiry

is whether the action was regarded as an unlawful search or seizure under the common law when the

amendment was framed. See Wyoming v. Houghton, -- U.S. --, 119 S.Ct. 1297, 1300, 143 L.Ed.2d

408 (1999) (citing Wilson v. Arkansas, 514 U.S. 927, 931, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995);

California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). “Where that


                                                -24-
inquiry yields no answer, we must evaluate the search or seizure under traditional standards of

reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s

privacy and, on the other, the degree to which it is needed for the promotion of legitimate interests.”

Houghton, 119 S.Ct. at 1300 (citing, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652-53,

115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)).

       The common law prohibited the warrantless arrest of an individual for a misdemeanor unless

it involved a breach of the peace. As the Supreme Court in Carroll v. United States, 267 U.S. 132,

156, 45 S.Ct. 280, 69 L.Ed. 543 (1925) stated:

               'In cases of misdemeanor, a peace officer like a private person has at common
               law no power of arresting without a warrant except when a breach of the
               peace has been committed in his presence or there is reasonable ground for
               supposing that a breach of peace is about to be committed or renewed in his
               presence.' Halsbury's Laws of England, vol. 9, part. III, 612.
               The reason for arrest for misdemeanors without warrant at common law was
               promptly to suppress breaches of the peace (1 Stephen, History of Criminal
               Law, 193), while the reason for arrest without warrant on a reliable report of
               a felony was because the public safety and the due apprehension of criminals
               charged with heinous offenses required that such arrests should be made at
               once without warrant (Rohan v. Sawin, 5 Cush. [Mass.] 281).


While the term “peace of the king” at common law meant, in one sense, the “law and sovereignty”

of the king in general, with regard to a peace officer’s power of arrest the term denoted “some violent

or disorderly act causing public alarm or disturbance....” 2 ENCYCLOPEDIA OF THE LAWS OF ENGLAND

436-37 (E.A. Jelf ed., 3d ed. 1938). The misdemeanors for which common law allowed custodial

arrest were serious offenses, including assaults and other dangero us and disruptive acts, or public

disturbances. See Horace L. Wilgus, Arrest Without a Warrant, 22 MICH. L. REV. 541, 572-77

(1923-24).

       Applied to the case at hand, it seems evident that the failure to buckle a seat-belt hardly

                                                 -25-
conjures up images of the “violent or disorderly acts” contemplated by the common law as warranting

a full custodial arrest. See SIR WILLIAM BLACKSTONE, BLACKSTONE’S COMMENTARIES ON THE LAW

811 (Bernard C. Gavit ed. 1892) (listing offenses against the public peace as riotous assemblages,

unlawful hunting, threatening letters, destruction of locks or flood-gates, and affrays). Gail Atwater’s

infraction of the Texas fine-only criminal misdemeanor seat-belt law did not constitute or portend any

disturbance that would even approach a breach of the peace under the common law when the Fourth

Amendment was framed. Therefore, the initial inquiry required by the Supreme Court’s decisions

yields the answer that Turek’s full custodial arrest of Atwater for that infraction violated her right

under the Fourth Amendment to be secure in her person against unreasonable seizures.

        Even if the historical evidence were thought to be equivocal, see Houghton, 119 S.Ct. at

1302, the panel opinion in this case demonstrates that the balancing of the relative interests weighs

decidedly in favor of protecting the personal privacy and personal dignity of an individual from an

intrusion that must surely be an annoying, frightening, and humiliating experience. See Atwater v.

City of Lago Vista, 165 F.3d 380 (5th Cir. 1999). In this case in which there is substantial and perhaps

conclusive evidence that the governmental action would have been regarded as an unlawful search

or seizure under the common law when the amendment was framed, the panel opinion also is very

persuasive in its evaluation of the seizure under the traditional standards of reasonableness and its

conclusion that the degree to which the seizure intrudes upon an individual’s privacy and dignity

undoubtedly outweighs the degree to which it is needed for the promotion of legitimate governmental

interests. Id.

        The majority opinion affirms the district court’s summary judgment without undertaking the

first or the second inquiry demanded of us by the Fourth Amendment and the Supreme Court’s


                                                 -26-
decisions in Wyoming v. Houghton, -- U.S. –, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), Wilson v.

Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) and California v. Hodari D., 499

U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The Supreme Court’s reaffirmation of our duty

to make these inquiries subsequent to its decision in Whren v. United States, 517 U.S. 806, 116 S.Ct.

1769, 135 L.Ed.2d 89 (1996), and the Supreme Court’s recent willingness to examine the issue of

warrantless custodial arrests for peace-breachless fine-only misdemeanors in Ricci v. Arlington

Heights, 116 F.3d 288 (7th Cir. 1997), cert. granted, 118 S.Ct. 679, 139 L.Ed.2d 627, and cert.

dismissed, 523 U.S. 613, 118 S.Ct. 1693, 140 L.Ed.2d 789 (1998), convinces me that the majority

is mistaken in assuming that our obligation to carefully scrutinize intrusions upon the right of the

people to be secure in their persons has been totally displaced by a simple Whren probable cause

matrix. Accordingly, because the majority used an inappropriate truncated analysis to reach what

appears to be an incorrect result, I respectfully dissent.




                                                 -27-
