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for the occasional libertarian harangue calling for drug legalization,
I seldom find much to quarrel with on these
pages. But
Robert
George and Timothy
Lynch, writing separately in criticizing the Supreme Court's
decision in Atwater v. City of Lago Vista, have galvanized
Dunphy to take to the keyboard and respectfully disagree.
The facts of
the Atwater case are as follows: In March 1997 Ms. Atwater
was driving her truck in Lago Vista, Texas. Her two children, ages
five and three, were passengers in the front seat. Neither Ms. Atwater
nor her children were wearing seatbelts, as required by the Texas
Transportation Code. Lago Vista police officer Bart Turek stopped
Atwater, berated her for failing to secure her children, then, when
she could not produce her driver's license, handcuffed her and took
her to the police station. She was booked and spent one hour alone
in a cell, after which she was taken before a magistrate and released
on $310 bail. She was charged with failing to wear a seatbelt while
driving, failing to secure her children in seatbelts, driving without
a license, and failing to provide proof of insurance. She ultimately
pleaded no contest to the misdemeanor seatbelt offenses and paid
a $50 fine. The other charges were dismissed. The case wound its
way through the various courts of appeal before being coming before
the U.S. Supreme Court, which last month held in a 5-4 decision
that Atwater's arrest was not unconstitutional.
The record
is clear that Officer Turek's conduct during his encounter with
Atwater brought discredit to his department and to the law-enforcement
profession. He shouted at her in front of her small children, no
doubt inflicting on them psychological trauma that will require
some time to heal. Further, as Justice O'Connor noted in her dissent,
he incongruously failed to ensure that Atwater was wearing a seatbelt
while he drove her to the police station.
Be assured,
gentle readers, that if Officer Dunphy had been the one to cross
paths with Ms. Atwater, affable fellow that he is, the matter would
have been handled quite differently, and Atwater's name would not
now and forever be enshrined in the lore of American jurisprudence.
But I take exception to the ominous, police-state projections implicit
in Mr. George's and Mr. Lynch's articles. The headline accompanying
Mr. George's column, "Safety First, Liberty Last?" and
that above Mr. Lynch's, "The End of Liberty," would have
the reader believe that some sort of American Krystalnacht
awaits the citizenry, owing to some sweeping new authority granted
to police officers. In truth, the Atwater decision merely affirms
the laws of arrest observed by American police officers since the
founding.
Conservatives
are rightly alarmed by the excesses evident in American law in recent
years. Those on the Left, in lawsuits such as those against tobacco
companies and gun manufacturers, seek through litigation to achieve
ends that they cannot reach through legislation. Messrs. George
and Lynch seem to be applying these same principles, chiding the
majority in Atwater for failing to impose limits on the police
that neither the Framers nor subsequent legislators sought to enact.
Texas law obligates
drivers to wear seatbelts and to ensure that children riding as
passengers are properly secured by seatbelts as well. Violations
of these statutes are misdemeanors, punishable only by a fine. For
a police officer to enforce these laws he must, as with any misdemeanor,
witness the violation. Texas law also allows for the immediate release
of a violator after he has signed a promise to appear in court and
answer to the charge. But to be eligible for immediate release the
violator must present satisfactory proof of his identity — a driver's
license, in most cases. As noted in the decision, Ms. Atwater did
not have her license at the time she was stopped, claiming that
her purse had been stolen the previous day. Officer Turek told her
he had heard that story two-hundred times. (As indeed he may have;
I've heard it five-hundred times.)
If the traffic
laws are to have any teeth, a police officer must be allowed the
discretion to arrest a violator without identification. If that
discretion is removed, all one need do to avoid culpability is make
up a new name each time he is stopped by the police for a traffic
violation. You could stuff your glove box — or the bed of your pickup
truck — with citations issued under a thousand different names and
there wouldn't be a thing the police could do about it.
Yes, Officer
Turek pushed that discretion to its limit, if not beyond. Even without
Atwater's driver's license, Turek surely had the ability to verify
her identity, issue her a citation, and send her and her children
on their way. Indeed, he had stopped her some months earlier in
the mistaken belief that her son was not wearing a seatbelt. It
seems fair to speculate that Officer Turek believed he had captured
a serial seatbelt scofflaw, and that he was determined to teach
her a lesson she would not soon forget. For the average, law-abiding
citizen — as all acknowledge Ms. Atwater to be — an hour in the
pokey can be a powerful lesson, indeed.
I won't attempt
to apologize for Turek's decision to arrest Atwater. As I said,
I'm sure I would have found a way to let her go with a ticket, if
that. But I'll conjecture that Turek's zeal may have been inspired
by the grim memory of an unbelted child lying dead in the street
somewhere in Lago Vista, Texas. Not long ago I was called to the
scene of an ostensibly minor traffic accident in which a two-year-old
girl was killed. The child was riding unbelted in her father's lap
when their car struck another at no more than 25 miles per hour.
She was propelled headfirst into the windshield, crushing her skull
and breaking her neck. None of the adults in the car was injured,
and they (and I) looked on helplessly as the paramedics worked in
vain to save the little girl. I can report that I was keenly vigilant
in my enforcement of the seatbelt laws in the days and weeks that
followed.
Buckle up,
gentle readers, buckle up the kids, and be assured that American
liberty survives the Atwater decision.
(*Jack
Dunphy is the author's nom de cyber. The opinions expressed are
his own and almost certainly do not reflect those of the LAPD management
.)
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