The opinion
DENNIS, Circuit Judge,
dissenting:
I respectfully dissent.
The majority opinion does not address an important constitutional issue raised by this case, discussed extensively at oral argument, and fully considered by the en banc court: whether the Fourth Amendment, by incorporating the common law at the time it was framed, prohibits, as an unreasonable seizure, the warrantless full custodial arrest of an individual for a fine-only criminal misdemeanor that does not constitute or involve a breach of the peace.
The Supreme Court granted certiorari in order to consider this very issue in Ricci v. Arlington Heights, 116 F.3d 288 (7th Cir.1997), cert. granted, 522 U.S. 1038 , 118 S.Ct. 679 , 139 L.Ed.2d 627 , and cert. dismissed, 523 U.S. 613 , 118 S.Ct. 1693 , 140 L.Ed.2d 789 (1998). However, after oral argument the writ of certiorari was dismissed as improvidently granted. See Ricci v. Village of Arlington Heights, 523 U.S. 613 , 118 S.Ct. 1693 , 140 L.Ed.2d 789 (1998). The Supreme Court oral argument transcripts in Ricci suggest that the Court dismissed certiorari as improvidently granted only because the Court learned for the first time at oral argument that the issue was not actually presented because Ricci’s arrest had been based on the violation of a civil business license ordinance rather than a criminal misdemeanor of *252 fense. Oral Argument Before the Supreme Court of the United States ( 1998 WL 204590 ) at 57-64, Ricci v. Arlington Heights, 116 F.3d 288 (7th Cir.1997), cert. granted, 522 U.S. 1038 , 118 S.Ct. 679 , 139 L.Ed.2d 627 , and cert. dismissed, 523 U.S. 613 , 118 S.Ct. 1693 , 140 L.Ed.2d 789 (1998) (No. 97-501).
The district court’s granting of the defendants’ Rule 12(b)(6) and Rule 56 motions is reviewed de novo by this court of appeals. See McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558 (5th Cir.1995)(failure to state a claim); Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir.1994)(summary judgment). In accordance with Fed. R. App. P. 3 and 28, the appellant adequately noticed and argued to this court the issue of whether the war-rantless full custodial arrest of a person for violation of a fine-only criminal misdemeanor seat-belt law, involving no breach of the peace, violates that person’s Fourth Amendment rights.
The foregoing question of law is the only issue presented by this appeal. The district court concluded that the plaintiffs “have not provided evidence of any violation of a constitutional right, much less a violation of a clearly established constitutional right.” The district court based its ruling primarily on the specific finding that the “only alleged ‘force’ and ‘imprisonment’ arose out [of] Turek’s arrest of At-water for the seat belt violations as clearly authorized by Texas law.”
For purposes of the motion for summary judgment, the district court found that Tu-rek, immediately upon stopping Atwater, yelled at her, “We’ve met before!” and “You’re going to jail!” Based upon these findings and the evidence, it reasonably can be inferred that Turek initially placed Atwater in full custodial arrest based only on the seat belt violations and called for a back up to assist him in his seizure of Atwater, her children, and her vehicle. Consequently, this appeal does not raise the question of whether Turek constitutionally could have made a full custody arrest of Atwater for the additional charges he sometime later filed against her of failure to provide proof of insurance and failure to have her driver’s license in her possession. Moreover, the failure to provide evidence of insurance or financial responsibility in itself is not a crime or offense under Texas law. See Tex. Transp. Code § 601.053 (West 1999); Op. Tex. Atty. Gen.1983, No. MW-577. The failure to carry or exhibit a driver’s license is a fine-only, non-peace breaching misdemean- or, if, as in this case, it is not a third or subsequent conviction within one year after the date of the second such conviction. See Tex. TraNSp. Code § 521.025. Finally, because Turek recently before had stopped Atwater and had examined her driver’s license and evidence of insurance, there is a genuine factual dispute, not amenable to summary judgment, as to whether Turek had probable cause to file the additional charges against Atwater, which were summarily dismissed the same day by the magistrate.
I cannot join the majority opinion because it does not acknowledge or address the arguments in favor of the proposition that an unnecessary full custodial arrest of a person for a fine only criminal misdemeanor involving no breach of the peace is an unreasonable seizure against which the people have been guaranteed a right to be secure in their persons by the Fourth Amendment. Those arguments were set forth fully and very persuasively by the briefs of the petitioner and his amici in Ricci See, e.g., Petitioner’s Brief ( 1998 WL 74152 ), Reply Brief of Petitioner ( 1998 WL 167353 ), Brief of the American Civil Liberties Union and the ACLU of Illinois in Support of Petitioner ( 1998 WL 77846 ), Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner ( 1998 WL 77850 ), Brief of the Institute for Justice as Amicus Curiae in Support of Petitioner ( 1998 WL 77847 ), Ricci v. Arlington Heights, 116 F.3d 288 (7th Cir.1997), cert. granted, 522 U.S. 1038 , 118 S.Ct. 679 , 139 L.Ed.2d 627 , *253 and cert. dismissed, 523 U.S. 613 , 118 S.Ct. 1693 , 140 L.Ed.2d 789 (1998) (No. 97-501). In summary, I read the arguments to be as follows:
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons ... against unreasonable ... seizures, shall not be violated!)]” When determining whether a particular governmental action violates the Fourth Amendment, the Supreme Court has said that the first inquiry is whether the action was regarded as an unlawful search or seizure under the common law when the amendment was framed. See Wyoming v. Houghton, 526 U.S. 295 , 119 S.Ct. 1297, 1300 , 143 L.Ed.2d 408 (1999) (citing Wilson v. Arkansas, 514 U.S. 927, 931 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995); California v. Hodari D., 499 U.S. 621, 624 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991)). “Where that inquiry yields no answer, we must evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it.is needed for the promotion of legitimate interests.” Houghton, 119 S.Ct. at 1300 (citing, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652-53 , 115 S.Ct. 2386 , 132 L.Ed.2d 564 (1995)).
The common law prohibited the war-rantless arrest of an individual for a misdemeanor unless it involved a breach of the peace. As the Supreme Court in Carroll v. United States, 267 U.S. 132, 156 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925) stated:
“In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.” Halsbury’s Laws of England, vol. 9, part. Ill, 612.
The reason for arrest for misdemeanors without warrant at common law was promptly to suppress breaches of the peace (1 Stephen, History of Criminal Law, 193), while the reason for arrest without warrant on a reliable report of a felony was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant (Rohan v. Sawin, 5 Cush. [Mass.] 281).
While the term “peace of the king” at common law meant, in one sense, the “law and sovereignty” of the king in general, with regard to a peace officer’s power of arrest the term denoted “some violent or disorderly act causing public alarm or disturbance .... ” 2 Encyclopedia of the Laws of England 436-37 (E.A. Jelf ed., 3d ed.1938). The misdemeanors for which common law allowed custodial arrest were serious offenses, including assaults and other dangerous and disruptive acts, or public disturbances. See Horace L. Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541 , 572-77 (1923-24).
Applied to the case at hand, it seems evident that the failure to buckle a seat-belt hardly conjures up images of the “violent or disorderly acts” contemplated by the common law as warranting a full custodial arrest. See Sm William Blackstone, BlACKSTONE’s COMMENTARIES ON THE LAW 811 (Bernard C. Gavit ed. 1892) (listing offenses against the public peace as riotous assemblages, unlawful hunting, threatening letters, destruction of locks or floodgates, and affrays). Gail Atwater’s infraction of the Texas fine-only criminal misdemeanor seat-belt law did not constitute or portend any disturbance that would even approach a breach of the peace under the common law when the Fourth Amendment was framed. Therefore, the initial inquiry required by the Supreme Court’s decisions yields the answer that Turek’s full custodial arrest of Atwater for that infraction violated her right under the Fourth Amendment to be secure in her person against unreasonable seizures.
*254 Even if the historical evidence were thought to be equivocal, see Houghton, 119 S.Ct. at 1302 , the panel opinion in this case demonstrates that the balancing of the relative interests weighs decidedly in favor of protecting the personal privacy and personal dignity of an individual from an intrusion that must surely be an annoying, frightening, and humiliating experience. See Atwater v. City of Lago Vista, 165 F.3d 380 (5th Cir.1999). In this case in which there is substantial and perhaps conclusive evidence that the governmental action would have been regarded as an unlawful search or seizure under the common law when the amendment was framed, the panel opinion also is very persuasive in its evaluation of the seizure under the traditional standards of reasonableness and its conclusion that the degree to which the seizure intrudes upon an individual’s privacy and dignity undoubtedly outweighs the degree to which it is needed for the promotion of legitimate governmental interests. Id.
The majority opinion affirms the district court’s summary judgment without undertaking the first or the second inquiry demanded of us by the Fourth Amendment and the Supreme Court’s decisions in Wyoming v. Houghton, 526 U.S. 295 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999), Wilson v. Arkansas, 514 U.S. 927 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995) and California v. Hodari D., 499 U.S. 621 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991). The Supreme Court’s reaffirmation of our duty to make these inquiries subsequent to its decision in Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), and the Supreme Court’s recent willingness to examine the issue of warrantless custodial arrests for peace — breachless fine — only misdemeanors in Ricci v. Arlington Heights, 116 F.3d 288 (7th Cir.1997), cert. granted, 522 U.S. 1038 , 118 S.Ct. 679 , 139 L.Ed.2d 627 , and cert. dismissed, 523 U.S. 613 , 118 S.Ct. 1693 , 140 L.Ed.2d 789 (1998), convinces me that the majority is mistaken in assuming that our obligation to carefully scrutinize intrusions upon the right of the people to be secure in their persons has been totally displaced by a simple Whren probable cause matrix. Accordingly, because the majority used an inappropriate truncated analysis to reach what appears to be an incorrect result, I respectfully dissent.