Why a Mom's Fate Should Worry Us All

By SANDY BANKS

April 27, 2001 12 AM PT

It is hard not to side with Gail Atwater, the Texas soccer mom who was hauled off to jail by a bullheaded, small-town cop because her two kids were not wearing seat belts.

She’d unbuckled them for just a moment, she said, so they could poke their heads out the window to look for a toy that had fallen from their pickup truck onto the street. They were on her way home from soccer practice, moving slowly along a deserted road, when a Lago Vista patrolman pulled her over, began berating her, handcuffed and hauled her off to jail.

Atwater paid $310 bail to be released from jail and $110 in towing fees to recover her truck--for an offense whose maximum penalty was a $50 fine. Later, she sued the city, contending that the officer’s behavior violated the Fourth Amendment of the Constitution by subjecting her to an unreasonable arrest.

Virtually everyone agreed the police officer’s judgment was bad. Some suspected he was acting on a vendetta. He had pulled Atwater over a few months before because he suspected a seat belt violation but had to let her go because he was wrong. Even the mayor took him to task. “He’s like a lot of small-town police officers,” former Mayor Glen Hartman told reporters. “His gun and his badge give him a sense of imagined importance.”

The city defended the arrest on the grounds that the officer broke no law, because police in Texas have the power to arrest for almost any traffic violation. And on Tuesday, the U.S. Supreme Court sided with the cop. Five of the court’s nine justices agreed that even the most minor criminal offense can justify a trip to jail without anyone’s rights being violated.

You have to read deep into the 59-page opinion--past the history of English common law and the pronouncements of 17th century judges--to get to the part about why the Atwater case matters to all of us.

The new standard set by the ruling creates “potentially serious consequences for the everyday lives of Americans,” writes Justice Sandra Day O’Connor, for the four justices in dissent. “Such unbounded discretion carries with it grave potential for abuse.”

Two weeks ago, I wrote about a black physician from Miami who was arrested recently by LAPD because he was driving an auto that had mistakenly been reported stolen. He is suing the department for racial profiling, contending that he was treated brutally because he was black.

The column generated e-mails from dozens of people recounting similar treatment at the hands of police. But many were surprisingly forgiving, and few chalked it up to racial profiling. In fact, most who had horror stories to tell were white. I found it oddly comforting to realize that harsh treatment by police doesn’t always depend on the color of your skin.

I heard from a Marine Corps officer who was “chained up next to crack addicts” for four hours in a San Francisco jail because of an outdated report that the rental car he was driving had been stolen.

From a West Los Angeles woman who was followed home by six LAPD officers and threatened with arrest, after an off-duty “cop in gym clothes” stopped her and “called for backup” because she was driving in the wrong direction in the parking garage of a Bally’s gym.

From a San Diego couple who’d been en route to Las Vegas when they were ordered out of their Lexus at gunpoint by “two police cars, two motorcycle police and a helicopter” because an anonymous motorist had reported to police that the husband resembled someone he’d seen on “America’s Most Wanted” on TV. “We were handcuffed and the highway was closed” for more than hour, the woman said, until the FBI arrived, fingerprinted the husband and cleared them.

Heavy-handed tactics by police, but not technically wrong. “We talked to lawyers and they all said the same thing,” the San Diego woman said. “There weren’t any damages. I guess not unless you count fear and humiliation.”

In the Texas case, Gail Atwater decided to do just that--to count fear and humiliation. When she failed to get an apology from police, she took the case all the way to the Supreme Court, contending that her constitutional right to protection against unwarranted search and seizure had been violated when she was hauled off to jail.

The circumstances of her case and the others may be different, but the essential issue is the same: how to balance citizens’ right to be free from harassment and governmental intrusion against restrictions that might unduly hamstring the police.

In this case, the five justices decreed that the larger danger is in interfering with police procedures, “lest every discretionary judgment in the field be converted into an occasion for constitutional review.”

Atwater suffered “pointless indignity,” wrote Justice David Souter for the majority, characterizing her arrest as a series of “gratuitous humiliations, imposed by a police officer who was (at best) exercising extremely poor judgment.” But her arrest was “not so extraordinary as to violate the Fourth Amendment.”

Or, as Justice Anthony Kennedy observed during oral arguments last fall: “It’s not a constitutional violation for an officer to be a jerk.”

Civil libertarians worry that the ruling will expand police powers, making them judge and jury, free to haul folks off to jail for the most benign violations. Advocates for minority groups say it will give carte blanche to racial profiling. Police now have, as one ACLU lawyer said, “a license to select anyone at all, wait for them to commit any one of thousands of possible infractions and then place their target under arrest.”

Regular folks are worried as well. “Just shoot me now,” one letter to the The Times said. “In what demented world is it reasonable for me to be [at the sole discretion of the police] arrested and possibly searched just because one of my taillights is out.”

I refuse to believe that this will turn our nation’s cops into a pack of thugs, bullying frightened soccer moms with guns and billy clubs.

The danger is not that police will run amok--the handcuffs now off, so to speak--but that they will believe they are no longer accountable to you and me, no longer required to adhere to reasonable standards of restraint in the streets.

We have more than crime to fear if we cease to consider the police our partners and regard them, instead, as some kind of occupying army. They may have been given broad rights with few limits, but it is our freedoms--not theirs--they must still take to heart.

Sandy Banks’ column runs on Fridays and Tuesdays. Her e-mail address is [email protected].