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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50302
GAIL ATWATER, Individually; MICHAEL HAAS, Dr, As next friend
of Anya Savannah Haas and Mackinley Xavier Haas,
Plaintiffs-Appellants,
VERSUS
CITY OF LAGO VISTA, BART TUREK, and FRANK MILLER, Chief of
Police, Lago Vista,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
January 29, 1999
Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellants Gail Atwater and Michael Haas, as next friend of
Anya Savannah Haas and Mackinley Xavier Haas, appeal the decision
of the district court granting defendants, City of Lago Vista, Bart
Turek, and Frank Miller, summary judgment. Finding error, we
reverse in part and remand.
BACKGROUND

Gail Atwater and her family are long-term residents of Lago
Vista, Texas, a suburb of Austin. She is a full-time mother and
her husband is an emergency room physician at a local hospital.
On the pleasant spring afternoon of March 26, 1997, as Gail
Atwater was driving her children home after their soccer practice
at 15 miles per hour through her residential neighborhood, she
violated Section 545.413 of the Texas Transportation Code.
Neither Gail Atwater, her four-year-old son nor her six-year-old
daughter were wearing their seat belts. Detecting this breach of
the peace and dignity of the state, Lago Vista police officer,
Bart Turek, set about to protect the community from the
perpetration of such a crime. In doing so, he brought to bear
the full panoply of means available to accomplish his goal--
verbal abuse, handcuffs, placing Gail Atwater under custodial
arrest, and hauling her to the local police station. It was not
a proud moment for the City of Lago Vista.
When Officer Turek pulled over Atwater's pickup, she and her
children remained in the vehicle. Officer Turek approached the
driver's side window and aggressively jabbed his finger toward
her face. Turek screamed either that they had met before or had
this conversation before. Turek's conduct frightened her
children, so Atwater calmly and in a normal tone requested that
Turek lower his voice. According to Atwater, the request that
Turek lower his voice further triggered his wrath. Turek
responded immediately by telling Atwater that she was going to
2

jail. Atwater remained calm. Atwater was not acting
suspiciously, she did not pose any threat to Turek, and she was
not engaged in any illegal conduct other than failing to wear a
seat belt when Turek told her she was going to jail.
Turek continued to speak to Atwater in a verbally abusive
manner, accusing her of not caring for her children. Atwater's
children and bystanders including friends and other Lago Vista
residents who drove or walked by witnessed Turek's tirade. Turek
stated that he recently stopped Atwater for not having her
children in seat belts, but such was not the case. Turek had in
fact stopped her several months before for allowing her son to
ride on the front seat arm rest, but the seat belt was securely
fastened. No citation was issued.
After telling Atwater that she would be taken to jail, Turek
demanded her driver's license and proof of insurance. When
Atwater informed Turek that her license and insurance card were
in her purse that had been stolen a couple of days before, Turek
ridiculed her and implied she was a liar, even though, assuming
he followed standard procedures during the previous stop, he knew
she had a valid driver's license and was an insured driver.
Atwater eventually provided her driver's license number and
address from her check book. Atwater then asked Turek to allow
her to take her children to a friend's home just two houses down
before taking her to jail, but he refused her request. Turek
stated that her children could accompany her to the police
3

station. Fortunately, a friend of Atwater's who came to the
scene took the children into her care.
Although under Texas law Turek could have issued Atwater a
traffic citation if she signed a promise to appear,1 he instead
chose to handcuff Atwater with her hands behind her back, load
her into his squad car, and take her to the police station. Once
at the police station, Atwater was required to remove her shoes
and glasses, empty her pockets and have her picture taken. She
was then placed in a jail cell for approximately one hour before
being taken before a magistrate.
Atwater pleaded no contest to not wearing a seat belt and
allowing her children to not wear seat belts. Charges of driving
without a license or proof of insurance were dismissed. This
incident caused Atwater and her children extreme emotional
distress and anxiety. Her youngest child has required
counseling, and Atwater has been prescribed medication for
nightmares, insomnia, and depression resulting from this
incident.
Frank Miller, the chief of police for Lago Vista, was the
ultimate authority in the police department in the areas of
management of department personnel. Lago Vista's policy for
enforcement of traffic violations allows for the use of custodial
arrests to promote its goals of increased traffic ordinance
1See Tex. Transp. Code Ann. � 543.005.
4

compliance. The policy specifically leaves to the officer's
judgment whether to take a motorist into custody for violations
of a traffic ordinance, and according to Appellants, encourages
the very conduct engaged in by Officer Turek.
Atwater and her husband, as next friend for her children,
brought suit against the City of Lago Vista, Police Chief Miller,
and Officer Turek under 42 U.S.C. � 1983 and � 1985 alleging
inter alia violations of Atwater's Fourth Amendment rights to be
free from unreasonable seizures and excessive force and
punishment as well as her right to due process under the Fifth
and Fourteenth Amendments. Atwater also brought state law claims
for false imprisonment and intentional infliction of emotional
distress. A claim for intentional infliction of emotional
distress was brought on behalf of her children.
The defendants filed a Rule 12(b)(6) motion to dismiss, or
alternatively, a motion for summary judgment based in part on
qualified immunity. The district court granted summary judgment
holding that the plaintiffs had not identified a constitutional
right that had been violated and that the individual defendants
had not acted in an objectively unreasonable manner. With
respect to the Fourth Amendment unreasonable seizure claim, the
district court found that the plaintiffs failed to state a claim.
With respect to the claims against the municipality, the district
court found that although the plaintiffs proved "policy or
5

custom" they failed to offer evidence of an underlying
unconstitutional activity. The district court also granted
summary judgment on the state law claims. Atwater and her
children timely appeal.
ANALYSIS
We review the grant of summary judgment de novo applying the
same standard as the district court. See Ellison v. Connor, 153
F.3d 247, 251 (5th Cir. 1998). For purposes of summary judgment,
the court considers the evidence of the nonmovant plaintiffs as
true and draws all inferences in the nonmovants' favor. See
Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 255 (1986).
I.
FAILURE TO STATE A CLAIM
With respect to Appellants' Fourth Amendment unreasonable
seizure claim, the district court concluded that the Appellants
failed to state a claim because they did "not allege with any
particularity what conduct violated what provision of the
Constitution." Order of February 13, 1998, p. 5. This
conclusion of the learned district judge misses the mark.
Appellants' First Amended Petition alleged facts to support an
unreasonable seizure claim under the Fourth Amendment.
Appellants alleged that Officer Bart Turek stopped Atwater for
6

not wearing a seat belt and not having her children properly
seatbelted in the vehicle. Appellants further alleged that
Officer Turek began yelling at her, telling her she was going to
jail. According to Appellants, Officer Turek then continued to
abuse her verbally, handcuffed her, and took her to jail, for a
mere seat belt violation. Appellants alleged that this
constituted an unreasonable seizure under the Fourth Amendment.
See First Amended Petition, p.11. We find that facts were
alleged with sufficient particularity to state a claim under the
Fourth Amendment.
II.
QUALIFIED IMMUNITY AND OFFICER TUREK2
Although the district court dismissed Appellants' Fourth
Amendment claim for failure to state a claim, the Appellees
presented an argument on summary judgment that the individual
defendants were also entitled to qualified immunity. See Rule
12(b)(6) Motion for Dismissal, Or, In the Alternative, Rule 56
Motion and Brief for Summary Judgment, p. 19. Although it
appears that this section of the summary judgment brief focuses
only on the qualified immunity defense of Chief Miller and never
mentions Officer Turek by name, portions of the brief do allude
2We discuss only the issue of the Fourth Amendment unreasonable
seizure claim because it is the claim which the court considers to
have merit. The judgment of the district court on the other claims
asserted by Appellants will be affirmed.
7

to the "individual defendants," which ostensibly includes Officer
Turek. We shall give Appellees the benefit of the doubt that
they were asserting qualified immunity on behalf of both Chief
Miller and Officer Turek.
Determining whether an official is entitled to qualified
immunity is a two-step process requiring the court to determine
(1) whether the plaintiff has alleged a violation of a clearly
established constitutional right and (2) whether the official's
conduct was objectively reasonable in light of clearly
established law as it existed at the time of the conduct in
question. See Stefanoff v. Hays County, 154 F.3d 523, 525 (5th
Cir. 1998). Although Atwater concedes that Turek had probable
cause to stop her for failure to wear a seat belt, Atwater
challenges the reasonableness under the Fourth Amendment of her
arrest for violation of the Texas seat belt law.
A.
Clearly Established Law
The way one states the legal principle which must be clearly
established before liability can attach is oftentimes outcome-
determinative. In that vein, the defendants point out that no
case exists which calls Officer Turek's actions into question;
thus no clearly established law exists. Indeed we have found no
case where a court was asked to consider an officer's action of
arresting, handcuffing, booking, and holding a first-time seat
8

belt violator in jail. But that does not conclude the inquiry.
The paucity of similar factual scenarios that have found their
way into published legal opinions may be attributable to law
officers acting in a more responsible and professional manner
than Bart Turek acted on this occasion. Or in those instances
where similar abuses took place, perhaps the victims either were
without the resources to call the officer's hand or chose to
avoid further involvement with a justice system so lacking in
common sense and reasonableness.
The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
It has long been clearly established that there is a
constitutional right to be free from unreasonable seizures. See,
e.g., Brower v. County of Inyo, 489 U.S. 593 (1989); Steagald v.
United States, 451 U.S. 204 (1981); Terry v. Ohio, 392 U.S. 1
(1968). Further, it is clearly established that even where
there is probable cause to believe an offense has been committed,
any seizure which is conducted in an extraordinary manner or
which constitutes an extreme practice must meet the
9

reasonableness requirement of the Fourth Amendment.3 See, e.g.,
Tennessee v. Garner, 471 U.S. 1 (1985)(finding that when an
arrest requires the use of deadly force, probable cause is not
sufficient and the means for the arrest must be reasonable);
Welsh v. Wisconsin, 466 U.S. 740 (1984) (holding that warrantless
arrest of a suspect in his home for a traffic offense was
unreasonable); New York v. Payton, 445 U.S. 573, 585 (1980)
("the warrantless arrest of a person is a species of seizure
required by the [Fourth] Amendment to be reasonable"); Jones v.
United States, 357 U.S. 493 (1958) (probable cause insufficient
for warrantless arrest in farmhouse at night).
B.
Objective Reasonableness
The Texas seat belt law is one of a number of paternalistic
statutes enacted by the Texas Legislature, the violation of which
usually exposes the offender to the imposition of a fine. See,
e.g., Tex. Trans. Code Ann. � 545.413 (requiring the driver,
front-seat passenger, and children from ages four to fifteen to
wear a seat belt); Tex. Trans. Code Ann. � 545.414 (prohibiting a
child under twelve years of age to ride in the open-bed of a
pickup truck); Tex. Trans. Code Ann. � 545.419 (prohibiting a
person from occupying a house trailer while it is being moved);
3See Whren v. United States, 517 U.S. 806, 818 (1996), and
discussion infra.
10

Tex. Parks & Wildlife Code Ann. � 31.066 (requiring life
preservers on motorboats and requiring passengers under 13 years
of age to wear life preservers). We refer to these laws as
paternalistic because they are designed to protect a specific
individual from his own conduct, conduct which poses no threat to
the pubic at large. We contrast these paternalistic statutes
with most traffic laws, the violation of which can have an
immediate impact on other users of streets and roadways. See,
e.g., Tex. Penal Code Ann. � 49.04 (prohibiting the operation of
a motor vehicle while intoxicated); Tex. Trans. Code Ann. �
545.351-352 (requiring motorists to drive within speed limits);
Tex. Trans. Code Ann. � 545.401 (prohibiting reckless driving);
Tex. Trans. Code Ann. � 545.104 (requiring the use of turn
signals). In order to determine the objective reasonableness of
Officer Turek's actions we must understand the nature of the
offense involved and who the law is designed to protect because
that helps us weigh the governmental interest in arresting a
violator versus the individual's privacy interest under the
Fourth Amendment.
Atwater's operation of a motor vehicle without wearing a
seat belt and without her children wearing a seat belt in the
front seat was a violation of � 545.413 of the Texas
Transportation Code. Violation of the Texas Seat Belt Law is a
"misdemeanor punishable by a fine of not less than $25 or more
11

than $50." Tex. Trans. Code Ann. � 545.413(d). No jail term is
provided in the statute. Under the Texas Code an officer has the
discretion to allow a motorist to secure release upon arrest by
making a written promise to appear in court. See Tex. Trans.
Code Ann. � 543.005. Once a motorist provides a written promise
to appear by signing the citation, an officer is required to
promptly release the motorist. See id. Section 543.001 of the
Texas Transportation Code provides that: "Any peace officer may
arrest without warrant a person found committing a violation of
this subtitle." However, any decision to arrest and the
circumstances surrounding the arrest must be considered within
the confines of the Fourth Amendment.
Although the statute provides that persons "may" be arrested
for seat belt violations, it does not provide that in all
circumstances an arrest is appropriate. Certainly a statute
which authorizes arrest for a mere seat belt violation in every
instance would be subject to a Fourth Amendment challenge.
In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme Court
held that the use of deadly force to apprehend a fleeing suspect
who did not appear to be armed or otherwise dangerous violated
the suspect's constitutional rights, notwithstanding the
existence of probable cause to arrest. In reaching this
conclusion, the Court explained that "[t]o determine the
constitutionality of a seizure `we must balance the nature and
12

quality of the intrusion on the individual's Fourth Amendment
interests against the importance of the governmental interests
alleged to justify the intrusion.'" Id. at 8 (citations
omitted). That "reasonableness depends on not only when a
seizure is made, but also how it is carried out." Id. The
Supreme Court's Fourth Amendment jurisprudence makes clear that
in determining reasonableness, we must ask "whether the totality
of the circumstances justified a particular sort of search or
seizure." Id. 8-9.
Appellees argue that Officer Turek's actions were justified
because he had probable cause4 to believe a seat belt violation
had occurred, and the Texas statute authorized the arrest. It is
not that simple. Officer Turek cannot hide behind the Texas seat
belt law to legitimate his actions. Most recently in Knowles v.
Iowa, 119 S. Ct. 484 (1998), the Supreme Court examined the
question of whether a search incident to traffic citation
authorized by Iowa law nonetheless violated the Fourth Amendment.
Implicit in the Court's decision that the actions of the officer
violated the Fourth Amendment is the realization that the
existence of the Iowa statute did not obviate the need for an
independent Fourth Amendment analysis. "Where a statute
4Probable cause occurs when the facts and circumstances within
an officer's knowledge are sufficient to warrant a prudent man in
believing that a person committed or was committing an offense.
See Beck v. Ohio, 379 U.S. 89, 91 (1964).
13

authorizes official conduct which is patently violative of
fundamental constitutional principles, an officer who enforces
that statute is not entitled to qualified immunity." Grossman
v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994).
Defendants' reading of the Texas Seat Belt Law would be patently
violative of the Fourth Amendment because it would read the
reasonableness requirement out of the Amendment.
However, it is a cardinal principle that courts will
construe a statute to avoid a constitutional problem. See Edward
J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction
Trades Council, 485 U.S. 568 (1988); Crowell v. Benson, 285 U.S.
22 (1932). In doing so, we do not interpret the Texas statute to
authorize arrest in every instance. To the contrary, the statute
necessarily requires the exercise of discretion in the decision
to arrest or not--reasonableness being the key in exercising that
discretion.

At common law the general rule was:
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.
Carroll v. United States, 267 U.S. 132, 157 (1925)(quoting
Halsbury's Laws of England, vol. 9, part. III, 612). Early
common law prohibited arrest for very minor offenses. See
Barbara C. Salken, The General Warrant of the Twentieth Century?
14

A Fourth Amendment Solution to Unchecked Discretion to Arrest for
Traffic Offenses, 62 TEMP. L. REV. 221, 258-59 (1989) (citing W.
Paley, THE LAW AND PRACTICE OF SUMMARY CONVICTIONS 19 (London
1814)).
Although the Fourth Amendment and common law do not always
coincide, the Supreme Court has recognized the logic of
distinguishing between minor and serious offenses in evaluating
the reasonableness of a seizure under the Fourth Amendment.
Indeed, this is not a novel idea. See Gustafson v. Florida, 414
U.S. 260, 266-67 ((1973)(Stewart, J., concurring)("It seems to me
that a persuasive claim might have been made in this case that
the custodial arrest of the petitioner for a minor traffic
offense violated his rights under the Fourth and Fourteenth
Amendments). In Welsh v. Wisconsin, 466 U.S. 740 (1984), police
officers arrived at the scene of a traffic accident and obtained
information indicating that the driver of the automobile involved
was guilty of a first offense of driving while intoxicated. The
driver left the scene of the accident, and the officers followed
the suspect to his home where they arrested him without a
warrant. Absent exigent circumstances, the warrantless invasion
of the home was a clear violation of Payton v. New York, 445 U.S.
573 (1980). In holding that the warrantless arrest for a traffic
offense was unconstitutional the Court stated:
When the government's interest is only to arrest for a
minor offense, . . . the government usually should be
15

allowed to make such arrests only with a warrant issued
upon probable cause by a neutral and detached
magistrate.
Welsh, 466 U.S. at 750. In this case, had Officer Turek gone to
a magistrate, undoubtedly no arrest warrant would have been
issued.5
Even Justice White, in dissenting in Welsh stated:
The gravity of the underlying offense is, I concede, a
factor to be considered in determining whether the
delay that attends the warrant-issuance process will
endanger officers or other persons. The seriousness of
the offense with which a suspect may be charged also
bears on the likelihood that he will flee and escape
apprehension if not arrested immediately.
466 U.S. at 759. In this case there is not the slightest hint of
exigent circumstances.
Appellees urge this court to recognize the significant body
of authority which appears to indicate that all seizures are
reasonable under the Fourth Amendment if based upon probable
cause. See, e.g., United States v. Watson, 423 U.S. 411 (1976)
(where the arrest for a felony occurring in a public place during
the daytime required only probable cause to be constitutional).
But see 3 Wayne R. LaFave, SEARCH AND SEIZURE � 5.1(b) (3d ed.
1996) (criticizing Watson as remarkable for its lack of
5
Justice Jackson writing in concurrence in McDonald v. United
States, 335 U.S. 451, 459-60 (1948), explained his view about
warrantless home arrests for minor offenses: "When an officer
undertakes to act as his own magistrate, he ought to be in a
position to justify it by pointing to some real immediate and
serious consequences if he postponed action to get a warrant."
16

analysis); see also Beck v. Ohio, 379 U.S. 89, 91 (1964) (noting
that the constitutional validity of an arrest turns upon whether
the officer had probable cause to make the arrest). Once again,
this is an oversimplification of the status of our Fourth
Amendment jurisprudence. Most recently, in Whren v. United
States, 517 U.S. 806, 817-18 (1996), the Supreme Court explained
that although the general rule is that the "reasonableness" of a
search or seizure is not in doubt where the search or seizure is
based upon probable cause, a balancing of all relevant factors is
necessary under the Fourth Amendment when the search or seizure
is conducted in an "extraordinary manner" or constitutes an
"extreme practice." Id. The Court cited Tennessee v. Garner and
Welsh v. Wisconsin, among others, as examples of seizures
conducted in an extraordinary manner, i.e., "unusually harmful to
an individual's privacy or even physical interests." Whren, 517
U.S. at 818.
In Whren, the Court faced the issue of whether a temporary
detention of a motorist based upon probable cause that he
violated a traffic law was unconstitutional under the Fourth
Amendment. The Court concluded that a traffic stop by an out-of-
uniform officer did not rise to the level of an extreme practice
to warrant the reasonableness analysis employed in cases where a
seizure was conducted in an extraordinary manner. See id. This
is in keeping with the Supreme Court's observation that traffic
17

stops are generally brief in nature and not as invasive as other
forms of seizure. See, e.g., Berkemer v. McCarty, 468 U.S. 420,
439 n.29 (1984).
In light of the Supreme Court precedent clearly established
prior to the incident in question, particularly the Supreme
Court's explanation in Whren, we easily conclude that an arrest
for a first-time seat belt offense is indeed an extreme practice
and a seizure conducted in an extraordinary manner which requires
a balancing analysis to determine the reasonableness of the
police activity. In conducting the analysis, we observe that the
only possible governmental interest in arresting Atwater for the
seat belt offense was enforcement of the seat belt law. Atwater
did not pose a threat to the officer's safety; she was not a
flight risk; and upon release she would not have posed a danger
to society. Atwater was not a repeat offender. The seat belt
law could have been enforced equally well through the issuance of
a citation. With respect to the method of arrest, there was no
good reason for Atwater to be handcuffed behind her back. Upon
conducting a balancing test of all relevant factors, we find no
factors existing in this case that are appropriate for placement
on the side of the scales that would tilt them in favor of
seizure. The seizure was objectively unreasonable.
Appellees' citation of United States v. Robinson, 414 U.S.
218 (1973), is unavailing. In Robinson, the parties never
18

challenged the constitutionality of the arrest. See id. at 221-
22. The challenge in Robinson was whether a search incident to a
valid arrest following a traffic violation was unconstitutional.
Our research reveals that every case in Texas wherein an
individual was custodially arrested after violating the seat belt
law, the arrest ensued only after some additional conduct
occurred or some additional factor justifying arrest was
revealed. See, e.g., Madison v. State, 922 S.W.2d 610 (Tex.
App.--Texarkana 1996, writ ref'd). In Madison, after stopping a
driver for failure to wear a seat belt, the officer observed that
the inspection sticker on the vehicle had expired more than two
years earlier, and after performing a license and registration
check, the officer discovered that driver had a felony record.
The driver was then arrested and cocaine was discovered during an
inventory search. See also Valencia v. State, 820 S.W.2d 397
(Tex. App.--Houston [14th Dist.] 1991, writ ref'd). In Valencia,
officers observed a van blocking the street which drove away as
they approached. The officers followed the van and observed it
swerving from side to side and into the path of oncoming traffic.
The officers stopped the van, noted that the driver appeared to
be intoxicated and arrested the driver. The officers observed
that the passenger was not wearing a seat belt, that he
continually moved his hands despite admonitions to keep his hands
where the officers could see them, and that the passenger had no
19

identification. The passenger was arrested and a search of the
passenger revealed a large amount of cash and a number of baggies
containing what appeared to be cocaine. These cases do not
support the proposition that a first-time offender for a seat
belt violation should be arrested, handcuffed and hauled to jail.
If we consider Atwater's evidence as true and draw all
reasonable inferences in her favor, as we must do on summary
judgment,6 then she has established that Officer Turek's conduct
was objectively unreasonable under the Fourth Amendment. Atwater
maintains that she was placed under arrest immediately for
failing to wear a seat belt. Atwater attests that Turek came at
her screaming and verbally abusing her; i.e., his mind was made
up before he could find out why the violation occurred.
According to Atwater, Turek told her she would be taken to jail
almost as soon as he got to her truck. The timing is important.
It is important also to note that in this case Atwater did
not refuse to buckle her seat belt or her children's seat belts
upon being stopped by Officer Turek. There was no reason to seize
her because she was a serious repeat offender. According to
Atwater, the previous time Officer Turek stopped her, her son was
riding on the arm rest of her truck, but was wearing a seat belt.
No citation was issued during this previous stop. Further,
Atwater was no flight risk. Officer Turek knew she lived in the
6See Anderson v. Liberty Lobby, Inc., 447 U.S. at 255 (1986).
20

neighborhood as he recognized her from the previous stop. She
posed no threat to the officer or to others. The only reason to
arrest Atwater instead of issuing her a citation under these
circumstances was to harass and impose a level of punishment
beyond the limitations of the statute. We cannot countenance
such abuse from an officer of the law.
Gail Atwater became the victim of an over-zealous police
officer who abused the power entrusted to him by the City of Lago
Vista.7 This case serves to remind us that "the central concern
of the Fourth Amendment is to protect liberty and privacy from
arbitrary and oppressive interference by government officials."
United States v. Ortiz, 422 U.S. 891, 895 (1975) (citations
omitted). It also presents fundamental questions about the
7In expressing disdain at overzealous police activity, our
colleague Judge Reavley said in Morgan v. City of Desoto, 900 F.2d
811 (5th Cir. 1990), a case where high school students were
arrested, handcuffed, and taken to jail because they were
congregating on shopping center parking lots after hours, creating
a litter problem:
Regardless of the visibility of the signs, regardless of
whether a class B misdemeanor (criminal trespass) was
committed, regardless of whether the officers had a probable
cause to arrest, and regardless of how bad a litter problem
the shopping centers were having, we can find no explanation
for taking every high school student found on the parking lot
under any circumstances and arresting them, handcuffing them,
and keeping them in jail for the night as if they were threats
to society. Whatever the legal points and the liability, how
can any party deny that the criminal justice system operated
here as an instrument of oppression?
Id. at 814.
21

status of Fourth Amendment rights and the lines society is
willing to draw concerning the conduct of police officers, the
vast majority of whom dutifully carry out their obligations
within constitutional limits.
It is also incumbent upon us to place this case into proper
perspective. It is and should be the rare case indeed where an
individual is placed under arrest for nothing more than a seat
belt violation. However, this decision in no way impacts the
plethora of authority justifying brief traffic stops for minor
traffic violations. See, e.g., Whren v. United States, 517 U.S.
806 (1996). This decision is limited to its facts. Appellees
argue that Officer Turek's actions were justified because he had
probable cause to believe a seat belt violation occurred. While
we agree that traffic violations can become a serious matter
affecting public safety, we cannot agree that the seat belt
violation in this case was so dangerous or so serious as to
justify arrest.8 As previously discussed, a seat belt violation
affects only the passengers and operator of the vehicle in
question. Although the Texas Legislature has decided, and we do
not dispute, that the interest in protecting these individuals is
an important one, the governmental interest in arresting an
8We do not address whether the Texas seat belt law is facially
constitutional, for no such challenge was presented. This case
presents an as-applied challenge. For a discussion on the need for
laws mandating use of citation as opposed to arrest to enforce
minor traffic laws, see Wayne R. LaFave, 3 SEARCH AND SEIZURE �
5.1(h) (3d ed. 1996).
22

individual for a seat belt violation is much less than in the
case of other traffic violations which can have an immediate
impact on the public at large.
Officer Turek's actions, in this case, under these facts,
were constitutionally unreasonable; indeed they were
indefensible. He is not, therefore, entitled to qualified
immunity.
III. MUNICIPALITY LIABILITY
Because summary judgment for the municipality was based on
failure to identify a constitutional right which had been
violated by Officer Turek, that judgment also must be reversed
with respect to a Fourth Amendment claim alleging unreasonable
seizure.
IV.
LIABILITY OF CHIEF MILLER
Upon review of the summary judgment record, we fail to see
any evidence or argument showing that Chief Miller should be
liable on any of Appellants' claims or that he would otherwise
not be entitled to qualified immunity. Accordingly, the judgment
of the district court dismissing claims against Chief Miller is
affirmed.
V.
CONCLUSION
The judgment of the district court with respect to the
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Fourth Amendment unreasonable seizure claim under 42 U.S.C. �
1983 against Officer Turek and the City of Lago Vista is
reversed. All claims against Officer Turek for unreasonable
seizure under the Fourth Amendment are reinstated. The claim
under � 1983 against the City of Lago Vista for unconstitutional
activity pursuant to official policy or custom as it relates to
the alleged unreasonable seizure by Officer Turek is reinstated.
The judgment of the district court dismissing all claims against
Chief Miller is affirmed. The judgment of the district court is
otherwise affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
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