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by Peter Moskos

July 23, 2015

Atwater v. Lago Vista (2001)

Fifteen years ago I published my very first op-ed. Sniff. You never forget your first, even though it was kind of a forgettable op-ed. (I've published close to 30 op-eds since then... jeeze.)

Atwater was a Texas case, no less, in which a woman (Gail Atwater) was arrested for a seat belt violation. Now a seat belt violation wasn't even a jailable offense. But the Court said it was constitutionally OK to arrest someone, even for a non-arrestable offense. I still don't understand this logic. Now these arrests could be prohibited by law or policy (which the Court recommended) but constitutionally the Court said it's OK to arrest people for even the most minor of traffic violations.

Keep in mind this isn't really relevant to Bland's arrest. She was initially placed under arrest for some variation of failure to obey (or maybe not, maybe the officer decided to arrest on the discretion granted to police in Atwater?) and then charged with assaulting a public servant, a felony. Either way, it's worth pointing out that the legal standard for an arrest -- particularly traffic related, particularly coming out of Texas -- is really low.


Ebenezer Scrooge said...

There are three ways of controlling police abuse of discretion.

One way is legal: get rid of the discretion. The Supreme Court has decided not to go this way.

Second is administrative. But nobody believes that Officer Encina would have been accountable in any way, if the story hadn't gone national.

Third is normative: standards of professionalism, coming from the ground floor up. This has been screwed up by the war on drugs, shortsighted police unions, and other things.

I'm a practicing lawyer, and fervently believe that law is the worst way of regulating any kind of social conduct. But I'm also Hobbesian enough to believe that bad regulation is usually better than none at all. I share the first belief with the current majority of the Supreme Court--but not the second.

Adam said...

I certainly agree that the current majority of the Supreme Court believes *judge-made* law is the worst way of regulating social conduct. If state legislatures want to curtail officers' powers of arrest, they can do so, and many have. In Maryland , for example, only a narrow range of traffic offenses are arrestable. Maryland cops do just fine under those rules. I'm guessing there's no analogous statute in Texas, but maybe there will be soon.

David Woycechowsky said...

IIRC, Texas has always had a rule of no arrest for speeding.

john mosby said...

Slightly off topic: The trooper's name was released: Encinia. This is a variation on a Spanish surname. And from the few photos available, he appears to be Hispanic.

Just like with "white" Zimmerman, no one seems to be emphasizing the brown-vs-black aspects of this encounter....

Of course, the surname is of Galician origin, so he's really just another racist Celtic copper! Yeah, that's the ticket....


Dave- IL said...


Is the officer's ethnicity that important? Does it make him more or less culpable in this incident? Does it make him less likely to abuse his authority?

Your post is not merely "off topic," it is a common diversion. Like when people try to divert attention from police use of force by bringing ups "black-on-black crime." You'd rather focus on issues of ethnicity than the more substantive moral issues involved in policing. I guess its just easier to engage in the old American game of ignoring black people's pain and anger by changing the topic.

john mosby said...

Quite the contrary. Part of "black peoples' pain" is that they, who have been here for 400 years and are more ingrained in American culture than anyone, are being marginalized and pushed aside by other minority ethnic groups, to include Hispanics.

(Yes, some Hispanic families have been here for 10,000 years since crossing the Bering Strait, but the average US Hispanic is the descendant of relatively recent immigrants/internal migrants as well as conquistadores.)

Assuming arguendo that there are lots of problems with police use of force, it should be even more upsetting to people (such as me) who care about African Americans to realize that this force is increasingly being applied to them by non-WASP coppers.

It's not changing the topic, it's part of the topic. When The Man is no longer the white man (or even a man of any color, as in Baltimore), but the same stuff is being done to the same people, that's an important piece of the puzzle.

I also think a lot of the usual talking heads are really afraid to call attention to inter-minority conflict.