Jerk Protection


"It was not a proud moment for the City of Lago Vista." That's how three judges on the U.S. Court of Appeals for the 5th Circuit summed up Gail Atwater's encounter with local police officer Bart Turek on the afternoon of March 26, 1997. Atwater was driving through the Austin suburb when Turek pulled her over: She, her 4-year-old son, and her 6-year-old daughter were not wearing seat belts. But instead of simply issuing a citation, Turek handcuffed Atwater and hauled her down to the police station.

There Atwater was forced to remove her shoes and glasses, empty her pockets, and pose for a mug shot. She was confined in a jail cell for about an hour before seeing a magistrate, who released her on $310 bail. Later she paid a $50 fine, the maximum penalty, for each of the three seat-belt violations, plus a $110 towing fee for her pickup truck.

Since then, Atwater and her husband have spent a lot more money trying to convince a court that Turek violated her constitutional rights. A federal district judge dismissed their lawsuit against the officer and the city, a three-judge panel of the appeals court reinstated it, and the full court threw it out again. Now the U.S. Supreme Court is considering whether to let the case proceed.

The Court's decision probably will hinge on whether it thinks the Fourth Amendment allows custodial arrests for minor traffic offenses in the absence of special circumstances. Atwater argues that the justices should look to the common law standard that prevailed when the amendment was drafted, which held that police may not arrest people for misdemeanors without a warrant unless a "breach of the peace" has been or is about to be committed.

"You've got the perfect case!" Justice Sandra Day O'Connor told Atwater's attorney during oral arguments, perhaps impressed by the evidence that Turek had, in a 5th Circuit dissenter's words, inflicted "vigilante punishment on a citizen under the guise of an arrest." Justice Anthony M. Kennedy was less impressed, declaring, "It's not a constitutional violation for a police officer to be a jerk."