From the May 2001 Idaho Observer:

A Matter of Definition...

Supreme Court paves way to Gestapo nation with Atwater decision

With a narrow 5-4 vote like the one that decided our last Presidential election, the Supreme Court's recent Atwater decision has paved the way for expansion of the American police state. Affirming the district court's dismissal of Gail Atwater's civil rights case, the Supreme Court has established the authority of local governments to arrest citizens for “crimes” which are punishable only by a fine.

By Hari Heath

In 1997 Gail Atwater was arrested, handcuffed, and booked into jail for a “crime” she committed in Lago Vista, Texas. After being held in a cell for an hour she was taken before a magistrate and released on bond. What was her crime? This soccer mom was driving her two children home from soccer practice without having any seat belts fastened. Officer Turek noticed the “offense,” pulled Mrs. Atwater over and immediately placed her under arrest. Atwater later pleaded no contest to the charges and received the maximum $50 fine for her “crime.”

She also filed a lawsuit in state court against the city and officer Turek for violating her 4th Amendment right to not be unreasonably seized. Her case was removed from the state court to a Texas federal district court. The city of Lago Vista and officer Turek made a motion for the federal district court to dismiss Atwater's case against them, which was granted.

The Supreme Court's narrow 5-4 decision echoed the wavering course of proceedings in this closely divided issue as it worked its way up to the High Court. Mrs. Atwater appealed the district court's dismissal of her case, which was overturned by a three judge panel at the Fifth Circuit Court of Appeals. On a petition by the city and officer Turek, the appeal was reheard by a full “en banc” panel of judges which reinstated the dismissal of Atwater's case by overturning the three judge panel. Atwater appealed further to the Supreme Court.

A Matter of Definition

Atwater's case rests on the Fourth Amendment and her right not to be “unreasonably seized.” The fact that she was “seized” during her arrest is not an issue in this controversy. Case law has already established that an arrest is a seizure, as the dissenting opinion states: “a full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure.”

That leaves her entire case pivoting on the definition of “reasonable.”

It can be fairly said that the Supreme Court is just a grand fishing expedition for judicial activists. First, no one has a right to an appeal at the Supreme Court. You must get their permission to be heard. Secondly, while about 15,000 cases seek to be heard by the Supreme Court every year, only about 150 are given permission for a hearing. And thirdly, every case comes to the Supreme Court with a highly detailed description of its issues in the petition which seeks to obtain their permission for a hearing. The Supreme Court Justices, or more likely their army of law clerks, can then pick and chose from an ocean of questions, ripe for judicial activism. Like a Congress, they can poll themselves for any likely outcome before the case receives a hearing and goes to a vote. This gives the Supreme Court many subjects to set their hook in and plenty of opportunity to release their catch before it gets hauled aboard their boat.

The Atwater case was landed to answer the sole question of whether her arrest was “reasonable.” The majority opinion held that, “the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.”

The Unspoken Question

The unspoken question here is what really constitutes a crime? After years of reading court dockets and newspaper reports it seems obvious to me that most people who are run through the modern day “criminal justice system” didn't actually harm anyone in the commission of their “crime.” In an age of legislatively and administratively manufactured “crimes” against the state, the “victim” in most crimes today is the defendant with our “public servants” becoming the perpetrators. Such Mala Prohibita or prohibitionist lawmaking is the cornerstone for communistic socialist democracies. The frightening part of the Atwater decision is that it paves the way for the arrest of anyone caught in the web of manufactured crimes against the state, even those only punishable by a fine, including those yet to be manufactured.

In all fairness, the majority opinion in the Atwater case appears both well researched and “reasonably” founded as to its legal and factual premises. Atwater contended that founding-era common-law rules forbade officers to make warrantless misdemeanor arrests except in cases of “breach of the peace,” a category of offenses involving or tending towards violence. The Court extensively reviewed both English and American common-law decisions on that subject. As is common in case law, examples supporting either point of view can be discovered. There were cases upholding early American era arrests for minor offenses such as “nightwalking, unlawful game-playing, profane cursing, and negligent carriage driving.” There were also cases prohibiting warrantless misdemeanor arrest where there was no breach of the peace. A number of more recent decisions authorizing warrantless misdemeanor arrests were also shown.

The Supreme Court's answer to Atwater's question was, “we thus find disagreement, not unanimity, among both the common-law jurists and the text writers who sought to pull the cases together and summarize accepted practice.we simply are not convinced that Atwater's is the correct, or even necessarily the better, reading of the common-law history,” wrote Justice Souter for the majority of the Court. Rather than render a clear decision based on fundamental principles, the majority admits the foundation of their ruling is that they “simply are not convinced.”

The Court pointed out that Texas statutorily defines not wearing a seatbelt as a misdemeanor and specifically authorizes “peace officers” [sic] to arrest anyone violating the seatbelt law, although a citation may be issued instead. Texas law seemed to firmly support the actions of officer Turek.

Idaho classifies seatbelt violations as an infraction, which is a “civil offense” distinctly separate from misdemeanors. Based on legal definitions one might think the circumstances of the Atwater case wouldn't apply in Idaho. However, Idaho Code 19-603(1) allows arrest “for a public offense committed or attempted in [an officer's] presence.” A citizens liberty could therefore become a “matter of definition.”

Good Cause for Dissent

Justice O'Connor presented many good points as to why Americans should be concerned about where the Atwater case is leading our country in the dissenting opinion of the Court. She began saying, “The Fourth Amendment guaranties the right to be free from 'unreasonable searches and seizures.' The Court recognizes that the arrest of Gail Atwater was a 'pointless indignity' that served no discernible state interest and yet holds that her arrest was constitutionally permissible.”

She further added that, “Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.”

Citing the famous Fourth Amendment Terry v. Ohio case (392 US 21), O'Connor said, “giving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendments command that the seizures be reasonable unless the officer is able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion of a full custodial arrest.”

The Gestapo in Action

O'Connor's rendition of the actual event gives a clear view of our nations slide into a gestapo style police state. “While Turek was justified in stopping Atwater, neither law nor reason supports his decision to arrest her instead of simply giving a citation. The officer's actions cannot sensibly be viewed as a permissible means of balancing Atwater's Fourth Amendment interests with the state's own legitimate interests.

“There is no question that officer Turek's actions severely infringed Atwater's liberty and privacy. Turek was loud and accusatory from the moment he approached Atwater's car. Atwater's young children were terrified and hysterical. Yet when Atwater asked Turek to lower his voice because he was scaring the children, he responded by jabbing his finger in Atwater's face and saying, 'You're going to jail.' Having made the decision to arrest, Turek did not inform Atwater of her right to remain silent. He instead asked her for her license and insurance information. Atwater asked if she could at least take her children to a friend's house down the street before going to the police station. But Turek -- who had just castigated Atwater for not caring for her children -- refused and said he would take the children into custody as well. Only the intervention of neighborhood children who had witnessed the scene and summoned one of Atwater's friends saved the children from being hauled to jail with their mother. With the children gone, officer Turek handcuffed Ms. Atwater with her hands behind her back, placed her in the police car, and drove her to the police station. Ironically, Turek did not secure Atwater in a seat belt for the drive. At the station, Atwater was forced to remove her shoes, relinquish her possessions, and wait in a holding cell for about an hour. A judge finally informed Atwater of her rights and the charges against her, and released her when she posted bond. Atwater returned to the scene of the arrest, only to find that her car had been towed.”

Justice O'Connor's dissent continues by questioning what law enforcement goals were served by officer Turek's actions. She also discusses the impact it made on Atwater's children saying, “...the 3-year-old boy was 'very, very, very traumatized.' After the incident he had to see a child psychologist regularly. Both of Atwater's children are now terrified at the sight of any police car. Arresting Atwater though, taught the children an entirely different lesson: that 'the bad person could just as easily be the policeman as it could be the most horrible person they could imagine.'”

The Big Picture

O'Connor states further that “...the Court's error, however, does not merely affect the disposition of this case. The per se rule that the Court creates has potentially serious consequences for the every day lives of Americans. A broad range of conduct falls into the category of fine-only misdemeanors. In Texas alone, for example, disobeying any sort of traffic warning sign is a misdemeanor punishable only by fine, as is failing to pay a highway toll and driving with expired plates. Nor are fine-only crimes limited to the traffic context. In several States, for example, littering is a criminal offense punishable only by fine.

Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of 'an epidemic of unnecessary minor-offense arrests'. But the relatively small number of published cases dealing with such arrests proves little and should provide no solace.”

O'Connor concludes her dissent with, “The Court neglects the Fourth Amendment's express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. I respectfully dissent.”

For all the importance of this case, the Supreme Court really doesn't matter any more. Officer Turek failed to adhere to the well established requirements of the Supreme Court's Miranda decision by arresting Atwater without reading her her rights.

In my own experience of defending myself in today's courts, all of the hundreds of higher court decisions I have presented to trial and appellate courts have been ignored. Local courts tend to disregard Supreme Court decisions that establish the rights of citizens, while using any rule, law or decision it can find to defeat the public they should be serving. The Atwater decision will continue the trend of making government unaccountable by denying the citizen any remedy or redress. It will be just one more layer in the wall of tyranny. Can you spell Gestapo? Because there our nation goes.

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Hari Heath

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