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| Dr. David Marlett, Editor | 26 April 2001 | Vol. II #54 | ||
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| Dr. David Marlett, Editor | 26 April 2001 | Vol. II #54 | ||
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The U.S. Supreme Court ruled 5-4 today that police officers who arrest and handcuff people after roadside stops for minor offenses do not violate the Fourth Amendment's protection against unreasonable searches and seizures. Gail Atwater was arrested and jailed for not wearing a seat belt.
Timothy Lynch, director of the Cato Institute's Project on Criminal Justice, filed an amicus brief in support of Atwater's constitutional claim (www.cato.org//pubs/legalbriefs/atwatervlago.pdf) and says the ruling is terribly misguided:
"The purpose of the warrant application process is to limit the power of executive branch agents--that is, the police. Abuses are curbed by forcing the police to apply for warrants from judicial officers and magistrates. Today's ruling gives police officers a license to bypass the warrant requirement of the Fourth Amendment. It is not too much to say that the decision sounds the death knell for arrest warrants in general.
"The practical effect of the Atwater ruling is that police officers can exercise 'extremely poor judgment' and harass citizens for pointless reasons--and those citizens are without legal redress.
"The Framers of our Constitution would frankly be startled by the Supreme Court's cavalier treatment of the legal threshold by which citizens can be deprived of their liberty and thrown in jail."
[ Cato Institute ]
By LOU MARANO
Is the lens on your taillight cracked? If a cop sees you, you can kiss goodbye your constitutional right to privacy and your protection from arbitrary arrest.
In what a legal scholar called a "frightening" opinion, the Supreme Court ruled Tuesday that the police may arrest, handcuff and temporarily jail persons suspected of even the most minor offenses if the officer can show "probable cause" that a violation of the law has been committed.
And what constitutes probable cause?
The court has left this up to the police, and no offense has been deemed too small. In the case at hand, it was unbuckled seatbelts in the car of Gail Atwater in 1997. Because it was her second offense, the Texas mother was handcuffed in front of her crying children and taken to jail until she was released on bond. If the police officer had simply ticketed Atwater on her first offense, this blow to the Bill of Rights could have been avoided.
"Probable cause" of the commission of a crime could just as easily be crossing the street in the middle of the block. And for generations, American kids have had fun by tearing content labels off their parents' upholstery that bear the words, "Do not remove under penalty of law." Better not blab that on the playground.
Roger Pilon, the libertarian Cato Institute's vice president for legal affairs, said the ruling "speaks volumes about what is wrong with modern American jurisprudence.
"If you can arrest someone on a seatbelt violation, you can arrest him on anything -- jaywalking, you name it," Pilon said.
"The majority admitted that the Atwater arrest was a pointless indignity that served no discernable state interest. How then could it be reasonable?" Pilon asked.
"The question here is whether, for a misdemeanor that warrants a maximum fine of $50, you can arrest someone and put him in jail. The absence of proportionality is so stark that it leads us to the conclusion that the Fourth Amendment is virtually a nullity. The amendment requires warrants for arrests, and it requires that the seizure of a person be reasonable."
UPI asked how the court could justify handcuffing those suspected of even the most minor violations when, by definition, they are not violent offenders.
"I can't understand," Pilon answered. "Probable cause is a necessary condition for arrest; it's not a sufficient condition. And yet the court makes it a sufficient condition. In doing that, it essentially reads out reasonableness (from the Fourth Amendment), because any arrest is perforce a reasonable arrest as long as there's probable cause."
UPI recollected that Americans used to take pride in not having to account for their presence. Anyplace where it wasn't prohibited for you be, you had a right to be. This was not true in Europe or even in Canada, where a police officer had the right to know your business and demand identification.
"You have put your finger on a very fundamental point," Pilon replied. "The principle at interest in the Atwater case is that in America, government has to have a sufficient reason before it can restrict an individual's freedom. All that is not prohibited is permitted. We don't start from the premise that all that is not permitted is prohibited.
"Yet increasingly over the 20th century, we've moved in that direction, nowhere more so in the area of property rights. You can't build a doghouse in your yard without getting a permit from several levels of government. But now it's moving over to the police area as well. All it takes is 'probable cause.'"
Pilon said that dissenting Justice Sandra Day O'Connor pointed out the Draconian implications of the ruling. "Once you're arrested, then it follows that you can be searched and all your possessions seized," he said. "You can be detained in jail with violent felons for 48 hours before a magistrate determines whether there was in fact probable cause for the arrest -- it could be very dangerous. And, of course, the arrest becomes part of the public record."
UPI asked why conservative justices such as Antonin Scalia, who might be expected to oppose the expansion of state power, voted with the majority. "Because it fits into his concern about judicial activism," Pilon answered.
"Some conservatives see this (ruling) as an exercise of judicial restraint. But it isn't judicial restraint; it is judicial abdication."
[ UPI ]
Conservatives usually have a healthy distrust of the state, so it was surprising (and depressing) to learn of the conservative-dominated Supreme Courtīs decision this week affirming the authority of police to arrest and cart off to jail people who have committed minor, non-criminal traffic offenses such as failing to buckle-up while operating a motor vehicle.
The case at issue Atwater vs. Lago Vista revolved around an incident that occurred back in 1997, when Gail Atwater, a soccer mom with three young children, was stopped by a traffic cop because her kids werenīt buckled-up, in violation of the local seatbelt ordinance. Instead of merely issuing Mrs. Atwater a ticket and sending her on her way, the officer arrested and handcuffed the woman - in front of her children and took her in his squad car to the county lock-up. She was released after posting bond and paying the $50 fine for the seatbelt violation.
Understandably outraged by treatment she viewed as excessive, Mrs. Atwater took the matter to court, arguing that her arrest constituted an unreasonable search and seizure, in violation of Fourth Amendment protections. Not so understandably, a majority of the Supreme Court disagreed, taking the hard-to-swallow position that police are within their lawful authority to arrest and waylay citizens who may have done no more than commit a minor infraction punishable, at most, by a fine.
"The arrest and booking were inconvenient to Atwater," wrote Justice David H. Souter in his majority opinion, "but not so extraordinary as to violate the Fourth Amendment." Concurring in the majority ruling were Chief Justice William H. Rehnquist and Justices Clarence Thomas, and Antonin Scalia.
"Inconvenience" is not the only issue. As a result of the courtīs ruling, police will have the ability, in effect, to conduct virtually at-will searches of anyone, not just motorists and their vehicles because under the law, once a person is placed under arrest, police have greatly expanded authority to conduct searches of persons and possessions (such as vehicles).
Prior to the Supreme Courtīs ruling, it was not lawful to conduct a search of either a motorist or his vehicle merely on the basis of a non-criminal traffic violation. A warrant was required - and it had to be based upon probable cause. Not anymore.
The courtīs ruling "demonstrates all too clearly that that a minor traffic infraction may serve as an excuse for stopping and harassing an individual," wrote Justice Sandra Day OīConnor in her strongly worded dissenting opinion. "After today, the arsenal available to any officer extends to full arrest and the searches permissible to that arrest," she continued. That a majority of the Supreme Court can justify such an outrageous assault upon basic civil liberties is a chilling thing to contemplate.
[ Washington Times ]
*** Supreme injustice.
By Timothy Lynch, director of the Project on Criminal Justice at the Cato Institute.
The Supreme Court dealt a devastating blow to the Fourth Amendment and individual liberty yesterday. In a 5-4 ruling, the Court said police officers can jail citizens for minor offenses without arrest warrants. The case, Atwater v. City of Lago Vista, lowers the constitutional threshold by which citizens can be deprived of their liberty.
Gail Atwater was driving her kids home from a soccer game. A toy fell out of the vehicle in their neighborhood and Atwater was retracing their route slowly so that the kids might be able to spot the lost toy. A police officer pulled Atwater over and barked at her for not keeping her kids in their seatbelts. Instead of issuing her a ticket, the cop put Atwater in handcuffs and took her into custody. Luckily for the Atwater family, a neighbor arrived on the scene just in time to spare the children from temporary foster care.
Atwater spent an hour in jail, posted bond, and returned home. She later admitted to the seatbelt infraction and paid the $50 fine. But Atwater was so upset by the way in which the patrolman scared her kids and bullied her that she sued the cop and the city for violating her constitutional rights.
The case worked its way all the way up to the Supreme Court. The City of Lago Vista argued that its cop noticed a legal infraction and exercised his legal discretion in taking Atwater into custody. Police officers might disagree among themselves as to the propriety of that decision, but there was no constitutional violation. Atwater argued that the Fourth Amendment constitutionalized the common-law rules pertaining to arrests and searches - and that under the common law, police needed an arrest warrant for misdemeanors that did not involve a breach of the peace. Since the officer had no arrest warrant for Atwater, her arrest was unconstitutional.
Writing for a majority of justices, David Souter found the common law to be unclear on the matter. The majority then quickly reached the conclusion that the police have to have unfettered discretion because any other rule would hamper law enforcement and foster litigation.
The Atwater ruling is terribly mistaken because it essentially reads the Warrant Clause out of the Constitution. In a matter of a few short years, the term "arrest warrant" will gradually vanish from usage. After all, why should the police apply for an arrest warrant when the court has now given the executive branch a license to arrest citizens whenever they believe a law has been violated?
The Framers of the Constitution sought to limit the power of search and arrest by dividing that power between the executive branch and the judicial branch. If the police can convince a judicial officer with evidence that a person committed a crime, a warrant would issue. Otherwise, the police had to leave the citizen unmolested and continue investigating. What's important to note here is that the constitutional presumption favors individual liberty, not police power.
The Atwater ruling turns the Framers presumption on its head. The Atwater rule now give the police a green light to arrest citizens - and we'll sort everything else out later. Amazingly, the Court admitted that the officer who arrested Atwater exercised "extremely poor judgment." Nevertheless, the Court callously observed that because Atwater's attorney could not prove that such incidents were of "epidemic" proportions, the problem could be handled by local electoral processes.
Conservatives are rightly indignant when liberal Supreme Court justices ignore constitutional provisions like the Second Amendment and the Tenth Amendment. But in this case the conservatives teamed up with David Souter to ignore the Warrant Clause of the Fourth Amendment.
[ NRO ]
THE Texas policeman who arrested, cuffed and jailed a soccer mom for the crime of neglecting to seat-belt her kids, would never make the cut in the worst anti-cop movie. But he made it through the Supreme Court this week in a 5-4 decision that will live in infamy.
And it may be the precursor of more to come, if President Bush makes good on his campaign promise to appoint clones of Antonin Scalia and Clarence Thomas.
To get the full flavor - make it stench - of the conduct that the majority said passed muster of the Fourth Amendment, the dissenting opinion of Justice Sandra Day O'Connor is required reading. Some highlights: The cop, Officer Michael Barton Turek, pulled over Gail Atwater, who was doing 15 m.p.h. on an empty street near her home in Lago Vista. He was "loud and accusatory" from the outset. Atwater's two kids were "terrified and hysterical." Yet when she asked him to lower his voice because he was scaring the children, he responded by jabbing his finger in her face and saying, "You're going to jail."
She asked if she could at least take her kids to a friend's house down the street; Turek said he would take them to jail. Only other kids on the block stopped that music: They got an adult to take the young aiders and abettors home.
"With the children gone," O'Connor wrote, "Officer Turek handcuffed Ms. Atwater with her hands behind her back, placed her in the police car, and drove to the police station. Ironically, Turek did not secure Atwater in a seat belt for the drive. At the station, she was forced to remove her shoes, relinquish her possessions and wait in a holding cell for about an hour."
A judge finally released her when she posted bond. When she returned to the scene of the arrest, her car had been towed. Eventually she paid the maximum "sentence," a $50 fine, and she and her husband sued Turek and the city on the grounds they had violated her constitutional rights to be free of "unreasonable searches and seizures" as guaranteed by the Fourth Amendment.
It took uncommon sense for the Founders to give us the Fourth Amendment. Most often, it permits felons caught with the goods to go free, because the police had no "probable cause" to search or arrest the culprit. However, in their wisdom, gleaned from the outrages of British colonial regimes, they decided that the price of law and order was too high to pay against the rights of privacy.
Alas, it's no longer a popular view in America; nothing gets trashed like the Fourth Amendment. But with the decision in the soccer mom case, common sense has gone out the window. Who in the hell but lawyers could possibly say that what Turek did to Gail Atwater, was not "unreasonable"?
And especially to her children, who Turek and the town's lawyers insisted were the reason for his actions. Bill Kruger, who represented Lago Vista in the Supreme Court, said: "We are not in the business of arresting mothers. But when it comes to a point where the mother is endangering the life of a child, we think it raises to the level where we think an arrest would be appropriate."
Well, as Justice O'Connor notes, Atwater's 3-year-old son was "very, very, very traumatized. He has to see a child psychologist regularly, who reported that the boy felt very guilty that he couldn't stop this horrible thing . . . both he and his sister are now terrified at the sight of any police car."
Against all of this, Justice David Souter, the author of the majority opinion (as much a surprise for his un-liberal stance as O'Connor is as a dissenter) states that cops seldom do such bad things. "There is no epidemic," he writes, "and the good sense (or failing that, the political accountability of lawmakers and law-enforcement officials)" will correct the problem.
To which Yale Kamisar, the premier civil libertarian professor of law at the University of Michigan, replies: "If we could depend on the good sense of cops and legislators, there'd be no need for the Bill of Rights. But we can't, and we never could."
[ NY Post ]
*** TCN Comment: Where does the dumping of the 4th Amendment lead? It leads to more power for bureaucrats who rule and reign of the formerly free people of The United States. It leads to unfettered bureaucratic power to declare anything illegal and then use the unrestrained force of their politically controlled police department to see that their sovereign will is done.
Does your 501 (c) 3 incorporated church preach anything "contrary to clearly defined public policy" ( IRS pub 557 pg 20 ) such as preaching against abortion or sodomy? If it does, your pastor can now be hauled out of the pulpit and locked up until he has posted bond
.. if and when the judge decides to set a bond amount.
The following case, which has been going on for some time, can now have some serious police action put behind it.
A Fairfax County judge yesterday returned to jail a Reston developer whose dispute with county officials over shrubs has made him a national and international symbol of an Internet-driven property rights movement.
John Thoburn had been expected to be released yesterday, his 68th day in jail for not complying with county zoning ordinances on shrubbery around his golf course.
But neither he nor Fairfax County is willing to budge, so the self-proclaimed political prisoner will remain in the county jail indefinitely over the well-publicized landscaping dispute.
Saying "the last thing I want to do is put Mr. Thoburn in jail," Fairfax County Circuit Judge Michael P. McWeeny ordered him back to his cell following a brief hearing yesterday.
It seems, the judge commented at one point, that both sides will only accept "unconditional surrender."
At issue is how many trees and shrubs Mr. Thoburn is required to plant on his 46-acre Golf Park at Hunter Mill, near Reston. But foliage is just the latest chapter in a long-standing feud between the businessman and county.
He claims he is being harassed by an overbearing government that wants to shut down a major competitor to its own facility a few miles away. County officials say Mr. Thoburn chooses to obey some zoning regulations and ignore others.
To Mr. Thoburn, 43, who has come to be known as "the Shrubman," the matter has become a crusade.
His family fields international media calls, sports "Free John Thoburn" bumper stickers and, with the help of the Washington-based watchdog group Defenders of Property Rights, has established a defense fund.
"Itīs crazy," sister-in-law Jo Thoburn said outside the courthouse. "Itīs time to perhaps step up our legal approach.
"We will not shut down the business," she said. "This is a matter of basic property rights."
Mr. Thoburn has said he planted more than 700 trees and shrubs at a cost of $125,000 in 1994, as required. Then, the county changed its rules and demanded that 92 be moved and 50 more be added, he said. Mr. Thoburn refused.
The county contends that 146 trees and 124 shrubs are still missing.
Yesterday, Judge McWeeny, as he has done in the past, demanded that Mr. Thoburn come into compliance with county regulations or close his golf range.
"Weīre open to any proposal that will bring his property into compliance with the law," county spokeswoman Mernie Fitzgerald said in a phone interview. "Weīve been responsive with him all along."
Mr. Thoburnīs attorney, Lorenzo L. Bean, refused county attorney Jan Brodieīs suggestion to free Mr. Thoburn if he agreed to pay a fine and close his range.
"The status quo remains the same," Miss Brodie told the court. The golf range, she said, has been operating illegally for more than three years.
Judge McWeeny refused a request by Mr. Bean to free his client, keep the range open and leave it to the county zoning board to settle the matter at a June 5 hearing.
The judge, insisting the matter already was litigated, also would not let Mr. Thoburn take the stand to reiterate his case.
Mr. Thoburn, led away after the proceedings in his dark county-issued jumpsuit, returned yesterday to what he has described as sleep deprivation, bad food and even, at times, solitary confinement.
Jail officials have argued his account of several of the conditions, saying Mr. Thoburn has never been placed in any kind of solitary confinement
His attorneys, meanwhile, donīt know how long he will stay locked up.
"Unfortunately, nothing happened today," said Roger Marzulla, a Defenders of Property Rights attorney.
"There really is no plan for getting him out of jail."
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