spoke- wrote:
Should I barricade myself inside my bomb shelter and break out the survival rations now?
You guys are great
CLedet & Spoke
Thanks for making my arguments. That’s exactly my problem with this ruling.
Smitty:
Oops. It appears that there used to be a prohibition in Texas on taking speeders into custody, but the statute that prohibited such arrests has apparently been repealed. Owens v. State, 861 S.W.2d 419, 420 (Tex. App.–Dallas 1993) describes the old rule, stating simply that “Except for a speeding offense, an officer may arrest and take into custody a person seen committing a traffic offense.”
I do not think that $310 is excessive bail, it is easily paid by almost anyone with a job. Also her punishment was a fine of $50 which is neither excessive or cruel and unusual. If she now has a criminal record that is appropriate as she committed a criminal act. Whether it should have been criminal is subject to debate but the duly elected legislators of state passed a law which she was probably aware of. There is not and eighth amendment case to be made here.
I think the police officer acted stupidly but constitutionally and applaud the supreme court for doing the right thing in this case.
There can be little question that the Texas officer’s behavior was stupid and an abuse of power as that term is used in everyday speech. Even the Supremes, majority and dissent, said that it was a pointless indignity and served no legitimate state purpose. The question, however, was whether the officer lawfully had the power to arrest, not whether it was a stupid thing to do. The majority decision seems to say that, absent some local law restriction on the powerof arrest, the 4th/14th Amends. require only probable cause to believe the person arrested has committed a criminal violation, albeit minor. The dissent says that not only must there be probable cause to arrest in order to justify a seizure of the defendant’s person, the arrest must be objectively reasonable. To find out if the arrest is reasonable the Court should look at the circumstances and to the Common Law, says the dissent. There is the legal conflict, probable cause alone V. probable cause + reasonableness. As Justice Holmes noted, hard cases make bad law.
Fortunately, in most States the power of the police to arrest for minor offenses is limited by local statutes that require the police to issue a citation or summons, and prohibit arrest unless the defendant refuses to accept the citation. Apparently Texas has no such statute. In my state the statute compels the police in this situation to give me a traffic citation that tells me when and where to appear before a magistrate if I want to contest the charge and how much the statutory fine and court costs are if I just want to send in the money. It is only if I refuse to receipt for the citation that the police have the authority to arrest me and drag me down to the station house to sit around until the magistrate finishes his three hour lunch and gets around to setting the amount of bail bond. In the meantime, of course, the police have done a cursory search of the car and my person at the arrest and are now engaged in a pretty exhaustive “administrative inventory,” which probably involves the use of Old Bowser, the drug detector dog.
The probable cause + reason rule advocated by the dissent has failed to gain the day this time in this court. That is not to say that there will be the same result when this sort of thing goes before a state court under a state constitution. State courts are bound by the U.S. Sup.Ct.’s interpretation of the U.S. Const. They are not bound to interpret the language of the state constitution the same way even though the state constitution’s language may be identical. It happens–more often than you might think.
I do not know the facts of the Texas case beyond what is recited in the Sup. Ct. opinions. This is one problem with appellate decisions. You only get to know what the court allows you to know. That usually happens only in outcome-based cases when it is sometimes necessary to ignore inconvenient facts in order to reach the correct decision. The Texas case does not read like an out-come case. The fact recitations in both opinions are substantially the same and there is no bickering over the facts. It reads as if the justices were honestly divided on a first impression matter of law. The victory went to the Justices who are most willing to give the state’s police power the widest latitude that does not clearly run afoul of prior decisions. The case is not a decision about what is right. It is a decision about the limits of the state’s police power.
So far as I can tell, the Eighth Amendment was not raised as an issue in the courts below. Appellate courts won’t usually consider an issue for the first time on appeal, even if the parties raise it; it’s equally unlikely for the appeals court to consider an issue sua sponte - not the SMDB user, mind you, but “on their own motion.”
And it’s a good thing it wasn’t raised below - it doesn’t have much weight. Under Texas law, Ms. Atwater is, in fact, a criminal, insofar as “being a criminal” means committing an act which permits a peace officer to arrest you. The guidelines for “cruel and unusual” are that the sentence or treatment in question must be so far out of bounds that they tend to “shock the conscience.” In this case, while it’s clear that the police officer was guilty of desperately poor judgement, Ms. Atwater was arrested, booked, and held for an hour before being released. Frankly, this does not “shock the conscience” in my case, and I suspect it wouldn’t for a reviewing judge either.
Something worth remembering: the Constitution is not a set of politeness law, or an anti-asshole protection. For these protections, we rely upon local officials, local laws, and outraged citizens pressuring same.
- Rick
Okay- so you’re saying that the procedures of arrest, bail, and final disposition af the case can be anything, even far greater than the maximum penalty for the actual offense, with no constitutional problem, because you are separating the $50 “punishment” from the $310 “bail” and the handcuffing and jailing preparatory to the “punishment?”
Is that really what you are saying?
Slippery slope doesn’t even begin to describe this- this is a fucking avalanche!!!
What rationale can anyone have for this? The arrest procedures should never exceed the “punishment” for the act. NEVER!!
I do agree that the officer acted stupidly, but I don’t see any possible way to say that he acted constitutionally. If it is not a jailable offense, then how the hell can someone be jailed for it???
Don’t you just love the way the conservatives protect us from excessive “government intrusion?”
Actually this is E101 from the Rudolph Guiliani School of Law Enforcement- he has been doing the same thing in NYC for the past few years. Of course he learned it honestly- from his dad the convicted Mob Enforcer.
And then there’s your offhand “easily paid by almost anyone with a job.” Hmmmm. The Constitution refers only to “employed people?”
I’m living in Russia right now, and trying to avoid dealing with Putin’s police (I haven’t commited a crime- it’s just a fact of life that the police will hassle you here- I was ordered off the street last year for the crime of “waiting for a streetcar”). It sounds like they’d fit right in in Texas- I’ve already thought of sending Rudy an invitation to visit to see how well his tactics work when given free reign. Of course crime is very high here, but the police do do a very good job of arresting people who don’t wear seat belts (and wait for streetcars). JDM
Dunno about anyone else, but between this ruling, the related rollback of minority/discrimination protections, and the Florida fiasco, I’m really worried about the damage that the Conservative Five™ Judges on the US Supreme Court will continue to inflict…
Again, jdm, it is now no longer in the slightest dispute that Officer Turek acted constitutionally. Perhaps you mean to suggest that this shouldn’t be what the Constitution means - given that the Supreme Court is the final arbiter thereof, it’s clear now what the Constitution does mean.
The Constitution does not forbid the “arrest procedures” exceeding the punishment for the act.
If you feel that this protection is warranted, I suggest you fire off a letter to your state legislators, recommending a bill to forbid warrantless arrests for non-jailable offenses.
Why is it that you feel the Constitution should protect you from this, anyway? Why shouldn’t a state get to decide whether its peace officers may arrest a non-violent misdemeanant?
- Rick
Regretably, the Founding Fuckups never included an amendment to the effect that no asshole shall be permitted to be a peace officer. Pity.
I can well understand how another person who, like myself, has found himself at the mercy of an authoritarian creep, would sincerely believe that the situation had constitutional implications. I am convinced by posters that this is not the case, it is a matter of law that cops shall exist, we license them to use deadly force, how can we deny that we license them to impose arrest and detention?
What should we take away from all this?
DON’T LET ASSHOLES BE COPS!!!
But that isn’t an issue for the Constitution. Damn.
Getting handcuffed and processed is not part of the punishment. If it were part of the punishment no one could be arrested because you can not punish someone before convicting them. What the cop did should be illegal. But in a democracy legislators should decide what is legal and illegal. The SCOTUS decides what is constitutional and stupid and unconstitutional are two different things.
minty green
It certainly doesn’t. But seeing as how the SCOTUS has already done so, declaring traffic offenses to not be “real” crimes and therefore not subject to the right of jury trials, I think that it makes perfect since to say that if they aren’t “real” crimes, then people should be arrested for them.