Amicus Curiae Brief — Atwater v. Lago Vista

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2000

No. 99-1408 Nov 1 |

In the

Supreme Court of the United States

GAIL ATWATER, ET AL...

Petitioners.

CITy OF LAGO VISTA, FT AL..

Respone lenis

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

AMICUS CURLAE BRIEF OF THE

TEXAS POLICE CHIEFS ASSOCIATION

James McLaughlin, Jr.

General Counsel

Texas Police Chiets Association

823 Congress Avenue, Suite 510

Austin, Texas 78701

(512) 236-8780

(Fax) 476-5771

Attorney for Amicus Curiae

Texas Police Chiefs Association

SEST AVAILABLE COPY

TABLE OF CONTENTS

PI ss dn ca caueucend Aeeksutsicncgies ii

ES OS Pe Tee ili

Statement of Interest of Amicus Curiae ............... 2

Summary of Argument ...................00c0e eee 2

SE Bs CUMS whe tick diese edi cunesesss 4

I. Texas Traffic and Arrest Laws Are

EOS 4

II. Arrest Standards Should be Consistently

ET Gh Od aedina6ensUuséaedetdseccees 4

III. Probable Cause Is the Requirement for

EE 6

IV. The Old English Arrest Standard Has

Not Been Adopted ......................4. 8

V. Constitutional Legislative Intent Should

EEE et 9

er 10

EGE 2 SE eS ee ee 11

TABLE OF AUTHORITIES

Barry v. Fowler, 902 F.2d 770 (9" Cir. 1990) ....... 7,9

Brinegar v. United States, 338 U.S. 160 (1949) ........ 6

Bruno v. Texas, 922 §.W.2d 292

(Tex. App.—Amarillo 1996, no writ) ............ 5

Camara v. Municipal Court, 387 U.S.523 (1967) .... 5,6

Dunaway v. New York, 442 U.S. 200 (1979) .......... 6

Fields v. City of S. Houston, 922 F.2d 1183

(F° Cle. WDA)... oc cccccnesaeeneeeeee 5, 7,8

Fisher v. WMATA, 690 F.2d 1133 (4" Cir. 1982) ....... 6

Gerstein v. Pugh, 420 U.S. 103 (1975) ............06. 6

Higbee v. City of San Diego, 911 F.2d 377

(FP Cle. 190G) . oc ccccccuceeesnaeeee 6-7

Holland v. City of Portland, 102 F.3d 6

(1° Cle. 19D) ..ciccccscseesuteeuene 7

Illinois v. Ramirez, 618 N.E.2d 638

(IR. App. Ce. 15GB) oo ccccccesesceuneeuuaeee 6,7

Madison v. State, 922 S.W.2d 610

(Tex. App.—Texarkana 1996, writ ref'd) ......... 5

Mangieri v. Clifton, 29 F.3d 1012 (5 Cir. 1994) ....... 5

Michigan v. DeFillippo, 443 U.S. 31 (1979) .......... 5

Moore v. Gwinnett County, 967 F.2d 1495

(11" Cir. 1992), cert. denied, 506 U.S. 1081 (1993) . 6

Myles v. Texas, 946 S.W.2d 630

(Tex. App.—Houst. [14" Dist.] 1997, no writ) ..... 5

Pyles v. Raisor, 60 F.3d 1211 (6" Cir. 1995) ........ 7,9

Ricci v. Arlington Heights, 116 F.3d 288 (7" Cir. 1997),

cert. dismissed, 523 U.S. 613 (1998) ............. 6

Sorenson v. Ferrie, 134 F.3d 325 (S" Cir.1998) ........ 5

Street v. Surdyka, 492 F.2d 368 (4" Cir. 1974) ...... 7,9

United States v. Basey, 816 F.2d 980 (5" Cir. 1987) .... 5

United States v, Robinson, 414 U.S. 218 (1973) ........ 5

United States v. Thomas, 120 F.3d 564 (5" Cir. 1997),

cert. denied, 118 S.Ct. 721 (1998) ............... 5

United States v. Trigg, 878 F.2d 1037 (7" Cir. 1989).

cert. denied, 502 U.S. 963 (1991) ............... 7

United States v .Watson, 423 U.S. 411 (1976) eeecevees x

Vargas-Badillo v. Diaz-Torres, 114 F.3d 3

EE 7,9

Whren v. United States, 517 U.S. 806 (1996) .......... 7

Constitutional Provisions

EEE 5

Statutes and Rules

TEX. CODE OF CRIM. PROC. art. 14.01(b)............ 4,8

TEX. TRANSP. CODE ANN. §521.025 ..............4.. 4

TEX. TRANSP. CODE ANN., ch. 543 .........0200005- 10

TEX. TRANSP. CODE ANN. §545.413 ..........0.0000- 4

TEX. TRANSP. CODE ANN. §601, ef seg. ...........4.. 4

TEX. TRANSP. CODE ANN. §601.051 ................. 4

TEX. TRANSP. CODE ANN. §601.053 ..............05. 4

TEX. TRANSP. CODE ANN. §601.191 ..............45. 4

PDE S0nbceeen neccenennceedsuneneee 8

Other Authorities

MODEL CODE OF PRE-ARRAIGNMENT

PE ED ooenseseveesscecessseeeense 8

No. 99-1408

In the

Supreme Court of the United States

GAIL ATWATER, ET AL.,

. Petitioners,

CITY OF LAGO VISTA, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

AMICUS CURIAE BRIEF OF THE

TEXAS POLICE CHIEFS ASSOCIATION

TO THE HONORABLE SUPREME COURT OF THE UNITED

STATES:

Amicus Curiae Texas .Police Chiefs Association

(“TPCA”)' submits the following in further support of

Respondents’ assertion that the judgment of the Court of

Appeals should be affirmed.

' No outside source has paid, or will be paid, any fee for preparation of

this brief of amicus curiae. The writer is General Counsel of and for the

amicus curiae Texas Police Chiefs Association. See Sup. CT. R. 37.6.

STATEMENT OF INTEREST OF AMICUS CURIAE

The Texas Police Chiefs Association (“TPCA”) represents

more than six hundred police chiefs in the State of Texas.

Police chiefs are responsible for the hiring and training of

police officers, as well as establishing policy for their

respective departments. Because of these responsibilities, as

an organization we have a vested interest in court rulings as

well as statutory law.

Due to the nature of police work, an officer has

traditionally been given broad discretion in a number of areas.

One of the most important is the discretion to arrest an

individual or not, given probable cause to arrest. As such, the

constitutional requirements of all arrests must be governed by

clear and consistent requirements. TPCA is concerned and

opposed to the alteration of the current and long-standing

probable cause standards for arrest. TPCA requests that the

judgment of the Court of Appeals be affirmed.

The Texas Police Chiefs Association respectfully moves

for leave to file the attached Brief Amicus Curiae in this case.

The parties have given their consent to the filing of this

brief through a blanket letter of consent filed with this Court

on September 12, 2000. See Sup. CT. R. 37.2 (a).

SUMMARY OF THE ARGUMENT

Arrests in Texas are governed by Texas statutory law, the

Texas Constitution, and the United States Constitution. The

purpose of this brief is to ensure that the constitutionality of

Texas arrests continue to be evaluated in a manner consistent

with precedence, and constitutional requirements.

On March 26, 1997, a Texas police officer witnessed a

woman committing five misdemeanor traffic offenses. Each

offense allowed for the offender's arrest on the day in

question. On March 26, 1997, Officer Turek arrested

Petitioner Atwater for four misdemeanor offenses. She

appeared before a magistrate and was released.

Texas law authorizes the arrest of offenders like Petitioner

Atwater. The statutes do not limit arrests to only breaches of

the peace. Petitioners do not challenge the constitutionality of

the relevant statutes. Nonetheless, Petitioners complain that

the arrest was unreasonable.

Clearly, under Texas law, the officer had probable cause

to arrest, as he witnessed the offenses. Petitioners ask this

Court to declare the arrest unconstitutional, despite undisputed

probable cause. Probable cause has always been the test for

ensuring that public arrests are reasonable. This requirement

is reflected in precedent from this Court. The probable cause

test fairly balances individual needs against state and public

needs. The United States Constitution does not require courts

to subjectively or objectively evaluate the merits of each and

every arrest in order to determine reasonableness. Instead,

every arrest requires probable cause. When a public arrest is

made with probable cause, it is reasonable. When Petitioners

fail to deny that the officer had probable cause to arrest her,

they admit that Ms. Atwater’s arrest was reasonable.

Petitioners want this Court to require more than probable

cause to justify the arrest, when probable cause has always

authorized a public arrest. Officer Turek’s conduct was in

compliance with clearly established law.

ARGUMENT

Il. TEXAS TRAFFIC AND ARREST LAWS ARE

CONSTITUTIONAL.

Texas law governs vehicle operation and the enforcement

of vehicle operation requirements. Texas law requires that

operators use seatbelts, and carry proof of their driver's

license and financial responsibility, when they are operating

a vehicle. TEX. TRANSP. CODE ANN. §545.413(a),§521.025

and §601, ef seq. (Vernon’s 1999). The constitutionality of

these provisions is not disputed.

Texas law also governs the enforcement of these traffic

regulations. An officer can arrest most misdemeanor

offenders without a warrant if the offense is committed in the

officer’s presence or view. TEX. CODE CRIM. PROC. ANN.

art. 14.01(6)(Vernon’s 1997). In addition, Chapter 543 of the

Texas Transportation Code governs the arrest and charging

procedures for certain traffic violations, including violation of

the safety belt provisions. The constitutionality of these laws

is uncontested.

Officer Turek elected to arrest Petitioner Atwater after

witnessing the commission of five misdemeanor offenses.

Petitioners do not dispute that Officer Turek complied with

the Texas statutes. Despite Petitioners’ argument, the arrest

was reasonable.

Il. ARREST STANDARDS SHOULD BE CONSISTENTLY

APPLIED.

Petitioners argue that the probable cause arrest of Gail

Atwater was unreasonable under the Fourth Amendment to

the United States Constitution. The Constitution requires that

all arrests be reasonable. U.S. CONST. amend. IV. It is well-

settled that a public arrest is reasonable if it is made with

probable cause. United States v. Robinson, 414 U.S. 218, 235

(1973); Michigan v. DeFillippo, 443 U.S. 31, 36 (1979):

Dunaway v. New York, 442 U.S. 200, 208 (1979); Camara v.

Municipal Court, 387 U.S. 523, 534-35 (1967).

The Fifth Circuit has consistently limited its evaluation of

misdemeanor arrests to the issue of probable cause. United

States v. Thomas, 120 F.3d 564, 573 (5" Cir.1997), cert.

denied, 118 S.Ct. 721 (1998); United States v. Basey, 816

F.2d 980, 990-91 (5" Cir. 1987); Sorenson v. Ferrie, 134 F.3d

325, 328 (Sth Cir. 1998); Mangieri v. Clifion, 29 F.3d 1012

(5" Cir. 1994); Fields v. City of S. Houston, 922 F.2d 1183

(5" Cir. 1991). This standard is also well-settled in Texas

courts. See, e.g., Bruno v. Texas, 922 S.W.2d 292 (Tex.

App.—Amarillo 1996, no writ); Myles v. Texas, 946 S.W.2d

630 (Tex. App.—Houst. [14" Dist.] 1997, no writ); Madison

v. State, 922 S.W.2d 610 (Tex. App.—Texarkana 1996, writ

ref'd).

The probable cause standard for public arrests has been

the touchstone of federal and state law for over a century.

Petitioners provide no basis in the Constitution, statutory law,

or in policy for altering this consistently applied principle of

constitutional law. Officer Turek had probable cause to arrest

Petitioner Atwater. An arrest made with probable cause is a

reasonable arrest. As a result, Petitioner Atwater’s arrest was

reasonable.

II]. PROBABLE CAUSE IS THE REQUIREMENT FOR ALL

ARRESTS.

Petitioners ask this Court to look beyond probable cause

to determine the reasonableness of the public arrest. The

probable cause test already balances the interests between the

state and the individual. Brinegar v. United States, 338 U.S.

160, 176 (1949); Gerstein v. Pugh, 420 U.S.103, 112 (1975).

This Court selected the probable cause test to specifically

avoid the need to perform a case-by-case evaluation of the

facts and circumstances that arise in the context of each and

every arrest. Dunaway v. New York, 442 U.S. 200, 208

(1979); Camara v. Municipal Court, 387 U.S. 523, 534-35

(1967).

Despite these precedents, Petitioners ask this Court to

look beyond probable cause. Petitioners urge this Court to

perform the case-by-case analysis expressly rejected in

Dunaway. 442 U.S. at 208; see also Camara v. Municipal

Court, 387 U.S. 523, 534-35 (1967).

Like Petitioners, other claimants have expressly asked

courts to consider factors, besides probable cause, to evaluate

their arrests. Federal and state courts have rejected

consideration of (a) the seriousness of the offense or

punishment; (b) whether issuance of citation is an option;’ (c)

? Ricci v. Arlington Heights, 116 F.3d 288, 290-91 (7" Cir. 1997),

cert. dismissed, 523 U.S. 613 (1998); Fisher v. WMATA, 690 F.2d

1133, 1139 (4" Cir. 1982); Illinois v. Ramirez, 618 N.E.2d 638 (Ill.

App. Ct. 1993).

> Moore v. Gwinnett County, 967 F.2d 1495 (11" Cir. 1992), cert.

denied, 506 U.S.1081 (1993); Higbee v. City of San Diego, 911

if state law was complied with;* (d) the peace officer's

subjective intent; (e) whether other officers would have made

the arrest;° or (f) if the arrest complied with usual police

department policies or practices.’ In each of these cases, the

court concluded that probable cause alone established the

reasonableness of the public arrest.

The probable cause requirement provides officers and

individuals with a bright line standard. It clearly sets out what

is required to satisfy the constitutional requirements for an

arrest. Probable cause is established when the officer has

reason to believe that the suspect committed or is committing

a criminal offense. Once the officer has probable cause, the

decision to arrest is left to his or her discretion. The officer is

entitled to exercise this discretion without concern that a

F.2d 377,379 (9" Cir. 1990); Ramirez, 618 N.E.2d at 638.

* See Fields v. City of S. Houston, 922 F.2d 1183 (5" Cir. 1991):

Vargas-Badillo v. Diaz-Torres, 114 F.3d 3 (1" Cir 1997); Pyles v.

Raisor, 60 F.3d 1211, 1215 (6" Cir. 1995); Barry v. Fowler, 902

F.2d 770, 772-73 (9" Cir. 1990); Street v. Surdyka, 492 F.2d 368,

371-72 (4" Cir. 1974). In each of these cases, the court concluded

that probable cause justified the warrantless arrests, despite the

violation of state laws and early common law that restricted the

arrest of misdemeanor offenders to only offenses that were

committed in the officer’s presence.

* Whren v. United States, 517 U.S. 806, 813 (1996); Basey, 816

F.2d at 990-91; Holland v. City of Portland, 102 F.3d 6 (1" Cir.

1996).

° Whren, 517 U.S. at 813-4; Moore, 967 F.2d at 1498.

” United States of America v. Trigg, 878 F.2d 1037, 1041 (7" Cir.

1989), cert. denied, 502 U.S. 963 (1991).

claimant will ask the court to second-guess the determination

that was made at the scene of the arrest.

An arrest made with probable cause is a reasonable arrest.

Petitioners’ attempt to compel this Court to diverge from its

own directives should be rejected.

IV. THE OLD ENGLISH ARREST STANDARD HAS NOT BEEN

ADOPTED.

Petitioners also complain that the arrest was unreasonable

because it did not satisfy the Old English common law

standard for arrests. As Petitioner notes, in early England,

arrest was permitted without a warrant if the offense

constituted a felony, or if it was a breach of peace that was

committed in the officer’s presence.

The above misdemeanor arrest standard has never been

adopted by the Court. This requirement was ignored by the

Court as part of the standard for public arresis. See United

States v. Watson, 423 U.S. at 418. It was ignored in the

proposed Model Code of Pre-Arraignment Procedure, which

the Court relied on in Watson. Id.,; MODEL CODE OF PRE-

ARRAIGNMENT PROCEDURE §120.1. It has been ignored in

state and federal statutory law. See, e.g.,18 U.S.C.A. § 3052

(since 1951, allowing F.B.I. agents to arrest without requiring

a breach of the peace); TEX. CODE CRIM. PROC. ANN. art.

14.01(b) (since 1967, allowing Texas peace officers to arrest

without requiring breach of peace).

Moreover, the “presence” component of the common law

standard has already been expressly rejected as a

constitutional requirement, by a number of Circuits. See

Fields v. City of S. Houston, 922 F.2d 1183 (5" Cir. 1991);

Vargas-Badillo v. Diaz-Torres, 114 F.3d 3 (1" Cir 1997):

Pyles v. Raisor, 60 F.3d 1211, 1215 (6" Cir. 1995): Barry v.

Fowler, 902 F.2d 770, 772-73 (9" Cir. 1990): Street v.

Surdyka, 492 F.2d 368, 371-72 (4" Cir. 1974). As noted in

Street, the Court has never given constitutional force to the

presence requirement of the common law rule, but has instead

relied on the existence of probable cause. 492 F.2d at 371-72.

Petitioners’ reliance on the Old English rule in order to

establish that the arrest was unreasonable is without

justification. Petitioner Atwater’s arrest was reasonable.

because, in accordance with long-standing law, Officer Turek

had probable cause.

V. CONSTITUTIONAL LEGISLATIVE INTENT SHOULD

CONTROL.

It is undisputed that Petitioner Atwater violated numerous

traffic restrictions. The Texas Legislature designated these

traffic offenses as “misdemeanor” offenses. In addition, it

provided for the enforcement of these statutes by custodial

arrest. Petitioners do not challenge the constitutionality of

these Texas traffic laws. Nonetheless, Petitioners ask this

Court to override the constitutional directives of the Texas

Legislature.

It is uniquely within the Legislature’s charge to determine

what conduct constitutes criminal conduct, and what conduct

can be enforced by custodial arrest. As a matter of public

policy, the Texas Legislature has determined that officers

should have discretion to make the custodial arrest of most

traffic offenders. Texas law, however, does not permit the

custodial arrest of all traffic offenders. For example, it has

removed the officer’s discretion to arrest certain speed limit

violators. See TEX. TRANSP. CODE Ch. 543. In the 76"

Legislative Session ending in 1999, the Texas House of

Representatives addressed the issue of arresting traffic

offenders. Failed House Bill 789 attempted to substantially

restrict an officer’s discretion to arrest.

It is anticipated that the 77” Texas Legislature will again

address the issue of traffic arrests. Thus the citizens of Texas

through their state representatives are able to decide what

violations constitute arrestable offenses.

As long as the officer has probable cause to publicly

arrest the offender, the individual’s constitutional rights are

preserved. Officer Turek had probable cause to arrest

Petitioner Atwater, as a result, her arrest was reasonable as a

matter of law.

VI. PUBLIC POLICY.

Some amici have suggested that it is against public policy

to waste local resources on the arrest of traffic offenders. The

use of local tax dollars to support public safety and how those

dollars are best utilized is not a constitutional question. It is

a question for local elected officials to decide what they think

is the appropriate amount of funds to be expended to best

insure the safety of the general public. They charge police

chiefs and other law enforcement administrators with the task

of carrying out this policy. Citizens through the election

process can determine policies. Citizens can also use cities

and police departments’ complaint procedures for instituting

change at the local level.

Amici also suggest that Texas seat belt law is not unlike

a violation of failure to signal lane change. Unseatbelted

drivers are at risk not only to themselves in accidents or in the

avoidance of an accident but due to the loss of vehicle control

become a danger to others. Unseatbelted children are at an

even greater risk and, in fact, can distract the driver from

paying full attention to accident avoidance.

CONCLUSION

Law enforcement officers and the public are entitled to

clear and consistent application of the law. Federal courts

continuously endeavor to satisfy this demand. All arrests

must be constitutionally reasonable. The reasonableness

standard for public arrests is probable cause. The probable

cause test objectively evaluates the peace officer's

determination that a crime had been or was being committed.

Once that standard is met, the officer is entitled to make a

public arrest, and proceed with ordinary processing.

This standard balances the needs of the individual with

those of the state and public, without requiring a case-by-case

analysis of each and every arrest. This Court has consistently

upheld public arrests that were made with probable cause.

Every Circuit that addressed the issue has rejected application

of an additional balancing test. Moreover, the breach of peace

standard never was adopted as a constitutional standard.

Officer Turek had probable cause to arrest Petitioner

Atwater. Her arrest complied with all constitutional

requirements. As a result, the judgment of the Fifth Circuit

should be affirmed.

Respectfully submitted,

JAMES MCLAUGHLIN, JR.