Ninth Circuit Bucks Extremely Recent Trend, Says Chalking Tires Not A Fourth Amendment Violation

Legal Issues

from the court:-no-intrusion-here,-residents-of-our-jurisdiction dept

I have to admit I’m amused by recent court activity dealing with chalking tires. Something that has been done for years with zero protest — marking tires with chalk to determine how long a vehicle has been parked — is now fodder for federal appellate decisions.

It’s a low tech solution to a low tech problem. Cop surveillance tech and techniques may have advanced rapidly over the years, but someone still has to make sure parking laws are enforced. Parking tickets generate revenue but this revenue appears to be unworthy of much attention. It’s un-sexy law enforcement, something that reliably puts money in city’s coffers but will never generate headlines or result in local TV coverage.

Intrusion on people’s personal property can still happen even when that property is temporarily located on public streets. That’s the conclusion that’s been reached by one federal court and (twice!) by the Sixth Circuit Court of Appeals. The seemingly innocuous chalk mark on a parked car’s tire may be a fleeting artifact of a criminal investigation — one that ceases to be valuable once the car is in motion and will disappear (thanks to regular driving, rain, or car washes) with zero direct interaction from the car owner — but it’s investigatory all the same.

The tire mark is the initial effort in an investigation into parking violations. Because it’s part of an investigation into a crime that may or may not be committed, it has Fourth Amendment implications. But not everywhere.

As noted above, the Sixth Circuit Appeals Court has declared this form of parking enforcement unconstitutional. So did a lower level court in the Ninth Circuit, which went a different direction than the Sixth Circuit. It cited the unconstitutional intrusion observed in the Supreme Court’s Jones decision — one that found the warrantless placement of a GPS device on a car parked on private property unconstitutional — and said the intrusion wasn’t justified by the city’s desire to enforce parking ordinances. This court said it was not an investigational intrusion, but it was still an intrusion, one that couldn’t be excused by the city’s “public safety” claims since residents’ safety clearly wasn’t affected by illegally parked cars.

Unfortunately for the plaintiffs in the California federal court lawsuit, the Ninth Circuit Appeals Court isn’t inclined to believe tire chalking is a Fourth Amendment violation. The ruling [PDF] handed down late last month reverses the lower court’s decision, declaring that tire chalking (at least in this circuit) is still perfectly constitutional. (h/t Short Circuit)

The Appeals Court says chalking tires is a “no harm, no foul” form of law enforcement, one that has at least one warrant exception on its side.

The panel held that even assuming the temporary dusting of chalk on a tire constitutes a Fourth Amendment “search,” it falls within the administrative search exception to the warrant requirement. Complementing a broader program of traffic control, tire chalking is reasonable in its scope and manner of execution. It is not used for general crime control purposes. And its intrusion on personal liberty is de minimis at most.

“De minimis” is unhelpful. No one knows the contours until a federal court issues a ruling. The Supreme Court’s Rodriguez decision made it clear it wasn’t the length of the violation, but rather the violation itself. Meanwhile, plenty of other Fourth Amendment decisions says that cops can violate rights as long as they’re quick and not too abusive about it. So, this last phrase isn’t all that instructive.

Unfortunately, it seems unlikely the US Supreme Court would be interested in adjudicating the intricacies of parking enforcement at local levels, so there will be no immediate resolution of this circuit split (which, admittedly, only includes two of twelve circuits at this point). Fortunately, this decision is kind of narrow: for the moment, it just says the city of San Diego can continue to chalk tires to engage in parking enforcement. It is not a blanket blessing of all other enforcement efforts in the circuit, even if it does suggest it’s a blanket blessing for tire chalking.

Weirdly, the Ninth Circuit acknowledges that the city’s failure to provide ample parking is detrimental to public safety, but chooses to place this burden on drivers rather than the city.

Insufficient parking impacts public safety. Cruising, double parking, and illegal parking all lead to increased traffic congestion that makes it more difficult for public buses and emergency vehicles to navigate city streets. Illegally parked vehicles may block access to fire hydrants or bus lanes. Greater traffic volume poses greater safety risks to pedestrians, bicyclists, and drivers, and drivers searching for spots are also distracted and more likely to cause collisions. Stop-and-go traffic and idling vehicles associated with congestion and parking shortages also result in increased localized vehicle emissions.

The Ninth Circuit says the victims of inadequate city planning and traffic control are to blame. And any efforts they use to minimize the impact of “insufficient parking” should be rewarded with citations. Issuing citations helps minimize a problem the city apparently can’t solve and the techniques most commonly used to punish people who can’t find parking in a mismanaged city are A-OK in this court’s book.

The court goes on to note the city could use several other methods to achieve this end. But it also goes on to grant credence to the city’s declarations that other options — ranging from traffic enforcement notations to stationary cameras in high traffic areas to automated license plate readers — are too expensive or too difficult to implement, at least as compared to meter maids and a box of chalk.

But that’s not how this is supposed to work. The government is supposed to be expected to utilize the least intrusive method even if it’s not the simplest or the cheapest. This decision says the simplest method — no matter its constitutional implications — is reasonable under the Fourth Amendment.

To be fair, the court does take time to discuss plenty of Fourth Amendment implications, including the fact that chalking tires in hopes of finding future criminals is not entirely unlike dragnet surveillance, which considers all captured information useful until it’s determined that it isn’t. But in the end, San Diego prevails. The government can still employ dragnets, so long as the dragnet is minimally intrusive. If the government can bypass rights to obtain other, more important ends, why not here, when it’s only a lack of adequate parking at stake?

All of this confirms that the plaintiffs’ position cannot be readily situated within a coherent theory of Fourth Amendment jurisprudence. Without a warrant, people can be lawfully stopped at road checkpoints for detecting drunk driving, driving without a license, and illegal hunting; government employees and students can be lawfully searched, including through drug testing; closely regulated businesses can be subject to periodic inspection; and airplane passengers can have their luggage opened and their bodies patted down. People can also be detained based only on reasonable suspicion of wrongdoing (“not a particularly high threshold to reach”), United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (en banc), and can be arrested based only on probable cause (“not a high bar”). Kaley v. United States, 571 U.S. 320, 338 (2014).

Within this body of established law, it would be passing strange if tire chalking, of all things, were somehow a Fourth Amendment red line that cannot be crossed. That is not a theory we can endorse. And that is especially so when the upshot of plaintiffs’ lawsuit is that San Diego should instead use other methods of enforcement—such as photographing cars or using license plate reader technology and GPS data—that would ironically invite greater intrusions into personal privacy.

The court seems to believe that forcing the government to engage in more surveillance to regulate parking would be a net loss for citizens. But it doesn’t seem to consider the alternative: that parking enforcement isn’t the sort of thing that should even begin to involve discussions of blanket surveillance or expansions of government intrusions. It’s about parking. And while it’s limited and valuable, most parking problems arise from problems governments created with poor zoning decisions or expansion plans that only saw what was possible, rather than what was actually feasible. Decisions like this, while seemingly rational given the minimal intrusion, serve to reward governments for doing a bad job governing, while shrugging off constitutional concerns that may not seem immediately obvious if one limits their reading of these conclusions to chalk on tires.

Filed Under: 4th amendment, 9th circuit, chalking, cops, parking, parking enforcement, parking tickets