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Jewish World Review April 30, 2001 / 7 Iyar, 5761

Mark Lane

Mark Lane
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Consumer Reports

Seat belt scofflaws? Book 'em Danno! -- IN the movies, the sure way to establish the setting as a tin-pot people's republic is to show beefy guys in uniform at the roadside asking for something vaguely called "your papers."

"Your papers, please?"

Now, thanks to the U.S. Supreme Court, we in the US of A have joined the ranks of nations where motorists can be whisked away in handcuffs on the slimmest of pretexts - lack of papers included.

The high court ruled Tuesday that no offense is so minor, so dinky and procedural that police can't haul you away. Littering, jaywalking, driving without proof of insurance, hanging fuzzy dice on your rearview mirror in a manner that obstructs a driver's view? Book 'em, Danno!

An exaggeration? Listen to Gail Atwater's criminal career and decide for yourself.

On March 26, 1997, Atwater was driving her kids, aged 5 and 3, home from soccer practice in Lago Vista, Texas, a nasty little zone of zero-tolerance near Austin. She was clocked at 15 mph. Her offense: failure to use seat belts.

A toy had fallen out of her pickup's window. So she and her kids had unfastened their seat belts and were creeping along trying to spot the toy by the road. That's when she caught the attention of Officer Bart Turek.

Turek acted as if he had spotted the Unabomber. Sure enough, not only were Atwater and her kids not wearing seat belts, but her papers were not in order! When she asked him not to shout and upset her children further, Turek became angrier and screamed he was taking her to jail.

He handcuffed her hands behind her and took her into custody. This was witnessed by a neighbor who fortunately happened by and was able to take the children home.

Atwater was searched, photographed, booked and jailed until she could post $310 bail. She pleaded no contest to the seat belt charge and paid a $50 fine plus $150 in court costs. Charges of driving without a license and insurance papers were dropped. Her truck was towed and it cost her $110 to get it back.

Because of her humiliation, her children's trauma, the behavior of the excitable officer, and smarting from something akin to a legal shakedown, Atwater sued the city. Our Constitution, after all, has a Fourth Amendment that says governments can't arbitrarily seize, search or jail folks.

A U.S. district court judge ruled for the city but an incredulous appeals court panel found for Atwater. It said jailing her amounted to unlawful punishment since the law only calls for fines, not jail. But the full appeals court reversed this and said the city is immune from lawsuits over lawful police actions, however goofy.

And so, the case ended up in the U.S. Supreme Court.

In a 5-4 decision, the court's conservative core, joined by Justice David Souter, took the city's side. Souter wrote: "Because she admits that neither she nor her children were wearing seat belts, Turek was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwater' s arrest was in some sense necessary."

Arrests can be unnecessary and even "merely gratuitous" and still not be "unreasonable." My inability to understand these kind of distinctions is part of the reason I never made it into law school.

The court's dissenters warned this ruling "gives officers unfettered discretion" to make arrests for no good reason.

"Such unbounded discretion carries with it grave potential for abuse," wrote Justice Sandra Day O'Connor.

No kidding.

So beware you people with Mardi Gras beads draped on your mirrors. Look out seat belt scofflaws, sidewalk skateboarders and desperadoes who change lanes without signaling! Thanks to the Rehnquist Supreme Court and its crabbed notion of the Fourth Amendment, any of you can be taken away in cuffs.

I'm afraid your papers are not in order. You will have to come with us. And keep away from those fuzzy dice. They're evidence.

Comment on JWR contributor Mark Lane's column by clicking here.

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© 2000, M. R. Lane