SECTION: THREE WHO DARED; Pg. A16

LENGTH: 1359 words

HEADLINE: 'The perfect case'

BYLINE: MARCIA COYLE

BODY:

IN POLITICAL SCIENCE classes students are told that when all else fails you can take your grievance to the U.S. Supreme Court,
says Gail Atwater, a full-time mother from Lago Vista, Texas.

"They don't have any idea," she adds wryly.

She has taken her particular grievance to the Supreme Court this term. And it has put her into debt, into psychiatrist offices for her
children, into the local newspaper's pages and into the outer limits of what a marriage can tolerate.

Maybe it was all worth it. On a December morning last year, Justice Sandra Day O'Connor leaned into her court microphone and
told Ms. Atwater's pony-tailed, storefront appellate attorney, Robert C. DeCarli, "You have the perfect case." Atwater v. City of
Lago Vista, No. 99-1408.

It's probably not the word Ms. Atwater -- a petite, careful-spoken, red-haired mother of two -- would have used to sum up her
family's legal odyssey. But it was clear what the justice meant. The case was perfect on its facts -- wholly sympathetic -- and an
excellent vehicle for raising a question that the high court surprisingly had never resolved: Does the Fourth Amendment limit
custodial arrests for fine-only offenses?

Despite less-than-perfect experiences along the way, Ms. Atwater has never wavered in her belief that the Supreme Court ultimately
will right the wrong inflicted on her and her children four years ago. On an early spring afternoon, she was driving her daughter
Anya, then almost 6, and her son Mac, nearly 4, home from soccer practice when the children realized that they had lost a favorite
toy bat affixed to their truck's outside window.

They backtracked to the soccer field, and she allowed the children to remove their seat belts and look for the toy as she drove slowly
-- about 15 mph -- along the residential street near their home.

Screaming and jabbing

Lago Vista police officer Bart Turek saw the seat-belt violation and stopped the truck. He reportedly screamed at Ms. Atwater,
jabbed his finger at her and yelled that she was going to jail after she asked him to lower his voice because her children were
terrified, according to court records. There was no evidence that she was belligerent or had challenged the officer's authority at any
time.

Officer Turek, who had previously stopped Ms. Atwater under the mistaken belief that her son was not belted, handcuffed her and
took her to the police station, where she was processed and put in jail for an hour.

She then went before a magistrate, pleaded no contest to the seat-belt violation and paid the maximum $ 50 fine.

"We weren't thinking about suing them then," recalls Ms. Atwater's husband, Mike Haas, an emergency room physician. "From the
very beginning, her motivation was this guy was scary and she wanted something to be done. Me? I'm just a mad husband."

Home in the hills

In wooded hills northwest of Austin, Lago Vista boasts 15 miles of shoreline along Lake Travis, "the cleanest lake waters in Texas."
Ms. Atwater has lived there since 1981. Long a community of military retirees, Lago Vista has seen its population explode with
young people, a change not always easy for the retirees.

Shortly after her arrest, Ms. Atwater contacted the city manager to discuss the incident and to request a refund of the $ 110 she paid
to get her truck out of the police impound lot. "That was because we knew they'd never admit fault," she recalls. Meanwhile, her
husband wrote a letter to the editor of the local newspaper about the incident.

As news of the incident spread, friends and acquaintances approached Ms. Atwater and asked what had happened. Letters to the
editor increased, "and people I don't know volunteered their Officer Turek stories," she says.

At the same time, the trauma of the arrest on their children started to emerge. "The very next morning, we're taking Anya to school
and Mac hits the ditch by the road because he thinks he sees a police car," recalls Dr. Haas.

"Another time, Mac is in daycare, and we're told that a police officer came to the daycare center to check something and when Mac
sees him, he falls onto the floor and huddles in a fetal position.

"We take him to a shrink and get him straightened out, and then our daughter, she now has long-term problems," says Dr. Haas.
"We're just normal people. I never dreamed we'd need to see a psychiatrist for something like this."

But the decision to sue finally came after three incidents in a 24-hour period, about three months after Ms. Atwater first approached
the city manager about her truck and Officer Turek.

First: After a coffee for a city councilwoman who was running for mayor, the councilwoman informed Ms. Atwater that someone in
city government had told her the Turek incident was her fourth stop for seat belt violations.

"Now I've got somebody in the city telling lies about me. I go right to the city manager."

Second: She asked the city manager why he or the chief of police hadn't responded to her complaint. "He said Chief Miller doesn't
know what my complaint is. He said, 'I don't think we have any bad police officers, just a couple of officers who need time to
mature.' I said, 'We don't give guns and badges to immature police officers.'"

Third: The next morning, she and her husband took their daughter to dance rehearsal. When they arrive, they see that Officer Turek
has stopped a car driven by a woman. "He's yelling, 'You're going to jail,'" recalls Dr. Haas. "He made that little lady cry."

At that point, Ms. Atwater remembers, "I said to Mike, 'This guy is going to hurt somebody. I can either close my eyes or do
something.'"

A lot of money

Dr. Haas remembers thinking, "This is going to be a lot of money for nothing."

They sued the city, the police chief and Officer Turek, who is no longer on the force and has not been available for comment. The
city won a summary judgment motion after a federal district judge ruled that no constitutional right had been violated by the
custodial arrest. And then their lawyer was disbarred for unrelated reasons.

Austin attorneys Debra Irwin and Pamela McGraw took over, the case and asked Mr. DeCarli, a friend and solo appellate attorney,
to handle the appeal. "It's the kind of case most lawyers would turn away," says Mr. DeCarli. "What are your damages? But it's also
this perfectly framed Fourth Amendment issue."

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit reversed the district court, concluding that the arrest was
"objectively unreasonable" and that Ms. Atwater was "the victim of an over-zealous police officer."

Victory was short-lived. The en banc court reversed, 11-6, holding, "When probable cause exists to believe that a suspect is
committing an offense, the government's interests in enforcing its laws outweigh the suspect's privacy interests, and an arrest of the
suspect is reasonable."

"We didn't start out thinking we were going to the Supreme Court," says Dr. Haas, who has read every Fourth Amendment case
cited in the high court briefs. His wife agrees, saying, "We started out trying to stop Turek and a law that was nebulous. Now the
5th Circuit said this was OK. We had a family vote. We couldn't stop now."

After the Supreme Court granted review, the city tried to settle, offering more than the couple had spent. But they wanted to erase the
5th Circuit decision.

"Gail and I have had so many arguments and marital problems over this whole thing," says Dr. Haas. "Most of our friends are
sympathetic, but behind our backs, they think we're crazy."

"They think this is costing us too much," quietly corrects Ms. Atwater.

They have spent about $ 100,000 on the case, using equity in their home and borrowing money from their mothers. House-building
plans are on hold. The family of four manages in a rustic, 750-square-foot bed-and-breakfast that faces the lake.

"It would be tough to do this again," Ms. Atwater admits. "We were so naive. We thought: We file our lawsuit, get a jury and let the
chips fall. Four years later, it's still my word against his. We haven't gone to court."

GRAPHIC: Picture, Determined: Gail Atwater sued her local police department after she was put in jail because her children, Mac
and Anya, weren't wearing seat belts, a fine-only offense. Her litigation cost $ 100,000, and her children had to seek psychiatric
counseling. LAURA SKELLING/AUSTIN AMERICAN-STATESMAN