Sixth Circuit Reaffirms It's A Fourth Amendment Violation To Chalk Car Tires For Parking Enforcement Purposes

from the folks,-this-is-why-they-play-the-games dept

Two years ago, the Sixth Circuit Court of Appeals surprised the city of Saginaw, Michigan by finding the process of marking car tires with chalk for parking enforcement violated the Fourth Amendment. The city certainly didn't expect multiple ticketholder Alison Taylor's lawsuit to make it this far. And it certainly didn't expect the Appeals Court to reverse the district court's decision that no Fourth Amendment violation had taken place.

Contrary to expectations, the Appeals Court ruled in 2019 that chalking tires certainly appeared to violate the Fourth Amendment. And the city was unable to successfully argue otherwise. Relying on the Supreme Court's Jones decision, the Appeals Court said the city unreasonably "trespassed" on the private property of residents (that being their cars) to apply the chalk mark -- property still protected by the Fourth Amendment against unreasonable searches despite being parked on public streets.

The argument that this temporary intrusion was excused by the community caretaking function of law enforcement also failed. The court pointed out engaging in revenue-generating enforcement efforts did nothing to take care of the community and the initial trespass occurred when vehicles were still parked legally, giving the government no reasonable suspicion to engage in this intrusion.

That wasn't necessarily a win for Alison Taylor, who decided to sue after she'd amassed fifteen parking tickets. It went back down to the lower court for some fact-finding, giving the city another chance to raise arguments that might allow it to continue utilizing this parking enforcement method.

Well, the case has returned to Sixth Circuit Appeals Court, and the court's conclusions haven't changed. The city raised a new argument during the case's return to the lower level and the Appeals Court [PDF] doesn't like this one either.

This time around, the city argues chalking is actually an administrative search -- yet another warrant exception the government has at its disposal. But if it's an administrative search (as the city argues), it's still an unreasonable search because it eliminates one crucial aspect of these searches: the opportunity for the search target to ascertain compliance with the law before being subjected to this warrantless search.

Generally, when a search is conducted for an administrative purpose and pursuant to a regulatory scheme—such as inspecting a home for compliance with a municipal housing code— the government may justify a warrantless search by showing that it met “reasonable legislative or administrative standards.” This is assessed by “balancing the need to search against the invasion which the search entails.” But it is not a free-for-all for civil officers; among other requirements, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” This prerequisite removes the City’s practice from the usual administrative-search case, see id.; Liberty Coins LLC, 880 F.3d at 281–82, as there is no such opportunity (which the City does not contest).

Having failed with this definition, the government proposes another: parking on public streets is a "closely-regulated industry" that gives city employees the authority to perform warrantless searches. This argument is even worse, says the Sixth Circuit.

[U]nlike the closely regulated industries of liquor sales, firearm dealing, mining, or automobile junkyards identified by the Supreme Court, municipal parking plainly does not “pose[] a clear and significant risk to the public welfare.” That automobiles are regulated and involved in parking is inconsequential because the exception applies to industries, not objects. So, for example, a state’s statutory scheme authorizing a warrantless inspection of an automobile junkyard resulting in the search of a Ford Mustang may be permissible, but it does not apply to the search of the same convertible parked on a city street.

The city also tried to compare this form of parking enforcement with border crossings and DUI checkpoints -- places where Fourth Amendment rights are presumed to be waived, if not ignored completely, to allow the government to serve its "special needs" (border security, public safety). Even the city seems to have a hard time buying its own argument.

We see no special need here, which defendants concede by admitting that “Ms. Hoskins’s job was not impacted in any respect if she did not chalk tires.” And common-sense commands this conclusion; for nearly as long as automobiles have parked along city streets, municipalities have found ways to enforce parking regulations without implicating the Fourth Amendment. Thus, tire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.

However, the court does allow the parking enforcement officer (the "Ms. Hoskins" mentioned above) qualified immunity for the warrantless trespasses on Alison Taylor's property. Unsurprisingly, the Appeals Court says the officer could not have possibly gathered from almost nonexistent precedent that this was a rights violation. In fact, the only precedent the Appeals Court can find is the Jones decision, which concerns a GPS device and impermissible trespass onto a person's property. That case also involved law enforcement and a parked car, but it's completely understandable that a parking enforcement officer wouldn't equate this decision with the heretofore unchallenged practice of chalking tires.

So, the city will have to find another way to engage in parking enforcement. This may mean the installation of plate readers and surveillance cameras. Or there might be a simpler solution -- one that cities have used for years with few problems or constitutional violations. The court even includes a link in its decision to inform the city of its options.

See, e.g., Amanda Erickson, A Brief History of the Parking Meter, Bloomberg CityLab (April 3, 2012), available at https://www.bloomberg.com/news/articles/2012-04-03/a-brief-history-of-the-parking-meter (last visited Aug. 9, 2021).

Like the last one, this decision is published, which means it's precedent. So, if chalking is in use elsewhere in the circuit (and it almost definitely is), it's a constitutional violation. But, given the fact it's unlikely many drivers will challenge being chalked, it's probably a pretty safe way for city governments to violate rights en masse.

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Filed Under: 4th amendment, 6th circuit, chalk tires, parking, parking enforcement


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  • icon
    Dan (profile), 9 Sep 2021 @ 2:03pm

    A victory? Maybe not.

    Not to be the eternal government cynic but, when I saw the first "victory" on this issue I thought, wait a minute...

    If it is established that chalking tires is disallowed, that gives our constitution loving government an excuse that continual surveillance of pubic places as "necessary" to establish the whereabouts for a particular vehicle. Gee, I wonder what else they are going to use those recordings for? My mental list has more red then green, right off. They would never abuse this, would they? /sarc

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2021 @ 2:17pm

      Re: A victory? Maybe not.

      They would never abuse this, would they?

      They would never store this data on insecure servers, would they?

      reply to this | link to this | view in chronology ]

      • icon
        Dan (profile), 9 Sep 2021 @ 7:46pm

        Re: Re: A victory? Maybe not.

        I'm sure they would NEVER use an insecure server. An insecure server programmer, maybe. LOL

        reply to this | link to this | view in chronology ]

      • icon
        OldMugwump (profile), 9 Sep 2021 @ 8:59pm

        Re: They would never store this data on insecure servers, would

        I hope they'd store it on insecure servers.

        I hope they'd make it publicly available to everyone in real time. What happens in public is...public.

        If the government is going to install surveillance cameras in public places, the public should be able to look through them. And access any recordings. That ensures the police can't cherry pick what they use in court and that misdeeds by authorities are recorded and on the record, as well as by citizens.

        I'll be far more worried if the police collect video and the public isn't allowed to see it - just the cops.

        reply to this | link to this | view in chronology ]

        • icon
          Dan (profile), 9 Sep 2021 @ 9:48pm

          Re: Re: They would never store this data on insecure servers, wo

          I'll bet you good money they would disallow public viewing on "privacy" grounds. Even although we would have none with the cameras.

          reply to this | link to this | view in chronology ]

    • icon
      Koby (profile), 9 Sep 2021 @ 2:37pm

      Re: A victory? Maybe not.

      The cynic in me says that if the city can't enforce its parking laws by chalking, then it's probably going to attempt enforcement through a more heavy handed measure. My hope is that it can be done with something less invasive, such as constant video camera surveillance, but in reality the business patrons are just going to be forced to feed a parking meter.

      reply to this | link to this | view in chronology ]

      • identicon
        Scote, 9 Sep 2021 @ 2:52pm

        Re: Re: A victory? Maybe not.

        Yeah, this ruling seems like it will drastically reduce privacy rather than increase it.

        A tiny bit of chalk on a tire doesn't put a record in a database of your movements that can be aggregated. There is no injury to the tire, which is made to be durable. Whereas forcing PDs to use license plate readers will cost more and diminish privacy drastically.

        reply to this | link to this | view in chronology ]

      • icon
        TKnarr (profile), 9 Sep 2021 @ 3:45pm

        Re: Re: A victory? Maybe not.

        That seems reasonable. The goal isn't supposed to be to generate revenue for the city or to prevent parking entirely, but to encourage drivers to not occupy a parking spot for too long (ie. park, do your business and leave, freeing up the spot for someone else) so as many different people as possible get a chance to park throughout the day. The annoyance of having to feed a meter seems like the perfect way to do that.

        reply to this | link to this | view in chronology ]

        • icon
          Dan (profile), 9 Sep 2021 @ 7:50pm

          Re: Re: Re: A victory? Maybe not.

          The goal is likely never to generate revenue, but it always does. I was in a courtroom once for a violation under the [then new] "Scott's Law". In just the 30 minutes I was there, the county earned about $2000.00 in fines, including myself.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Sep 2021 @ 3:52am

        Re: Re: A victory? Maybe not.

        We should just all put cameras in our car so the government can check if we're parked legally at any time and send a ticket electronically if we are. This will cut down on the invasive nature of parking enforcement.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2021 @ 2:15pm

    for nearly as long as automobiles have parked along city streets, municipalities have found ways to enforce parking regulations without implicating the Fourth Amendment. Thus, tire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.

    ... ignoring that until the 2019 decision, chalking tires was not in fact a 4th amendment violation. That is, until the court decided that it was.

    And that "for nearly as long as automobiles have parked along city streets", time-limited but not metered parking spots have been regulated using the chalking method.

    So, "because attaching a GPS device to a car" is a 4th amendment violation, so is chalking the tire? How about marking on the windshield for a car left abandoned on the side of the highway?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2021 @ 3:01pm

      Re:

      ignoring that until the 2019 decision, chalking tires was not in fact a 4th amendment violation. That is, until the court decided that it was.

      It's not really ignored. Chalking is (as they said) far from the only historical method of enforcing parking regulations, and courts have been occasionally changing legal interpretations for exponentially longer than cars have even existed.

      So, "because attaching a GPS device to a car" is a 4th amendment violation, so is chalking the tire?

      ...yes? was there some specific aspect of this that is confusing you?

      How about marking on the windshield for a car left abandoned on the side of the highway?

      This is the hill you're dying on? At least the parking one has some practical use, there's likely always going to be someone's car parked there at any given time, and the chalk is at least a method of recording which cars are which. A series of unrelated vehicles left in the exact same spot on the side of a highway for days at a time is just... not something that happens enough to think about.

      But sure, you don't get to mark them either I guess.

      reply to this | link to this | view in chronology ]

    • icon
      Beefcake (profile), 9 Sep 2021 @ 3:02pm

      Re:

      One factor is the side of the highway generally is restricted from parking for any duration. So that vehicle’s mere presence where it’s not allowed would permit the state to interact with it. They’re dealing with a visible crime in progress, not trying to find out if one will or has happened.

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 13 Sep 2021 @ 12:19am

      Re:

      until the 2019 decision, chalking tires was not in fact a 4th amendment violation

      Outside of the US 6th Circuit, it is still not determined to be a violation. I can see different circuits reaching different results.

      Different cities may also offer different arguments. Ultimately it is hard to see it as a search. It may be a de minimus trespass to chattels, but even that may be questionable if the chalk washes off in the next rainstorm.

      In the US 6th Circuit, there are some possible tradeoffs. Give the meter maid a portable Automatic License Plate Reader, and as she passes the cars it records the plate numbers. Two hours later, when she passes by again, the ALPR beeps as it recognizes a plate it had seen before. This does not account for the car moving, even from in front of one store to another down the street, but chalked tires might line up in the same position so that is not fool-proof either.

      Given that our overtime parking tickets run about $9, it is generally not worth fighting them. Your milage will surely vary.

      In the US 6th Circuit, the ALPR might allow faster passage by the meter maid: she covers more distance because there is no need to stop and chalk tires. Again, your milage will surely vary.

      reply to this | link to this | view in chronology ]

  • identicon
    Jeff, 9 Sep 2021 @ 3:11pm

    I'm not quite sure the issue here. It's not like there aren't devices - ala vehicle mounted cameras and plate readers that couldn't easily 'timestamp' a vehicle...as well as it's exact position and wheel alignments (taking into account that vehicles can move - but the likelihood of returning to exactly the same relative spot functionally impossible).

    reply to this | link to this | view in chronology ]

  • icon
    Federico (profile), 9 Sep 2021 @ 3:35pm

    Re: parking plainly does not pose a clear and significant risk

    Of all the arguments one could use, claiming that cars aren't a clear and significant risk is really the most tone deaf possible.

    They cut speed limits, changed street design, removed space for cars and generally made life harder for motorists.

    Now it appears the work is paying off. Two of Europe’s smaller capital cities – Oslo and Helsinki – are reaping the rewards of committed action on making their roads safer, reducing pedestrian fatalities to zero last year.

    https://www.theguardian.com/world/2020/mar/16/how-helsinki-and-oslo-cut-pedestrian-deaths-to- zero

    vehicular violence should be an urgent target of action both within and outside of academia, and that it should be more widely addressed within broader struggles for the just, sustainable, and livable city

    https://www.acme-journal.org/index.php/acme/article/view/1580

    reply to this | link to this | view in chronology ]

    • identicon
      Michael, 9 Sep 2021 @ 4:02pm

      Re: Re: parking plainly does not pose a clear and significant ri

      Reading comprehension fail. Nobody said anything about cars not being a risk; they said that "municipal parking" is not a clear and significant risk.

      You know that "cars" and "municipal parking" are different things, right?

      reply to this | link to this | view in chronology ]

      • icon
        Federico (profile), 10 Sep 2021 @ 12:59am

        Re: Re: Re: parking plainly does not pose a clear and significan

        Have you read what I linked? Providing the parking directly causes car traffic.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 10 Sep 2021 @ 9:51am

          Re: Re: Re: Re: parking plainly does not pose a clear and signif

          Providing the parking directly causes car traffic.

          Still has nothing to do with the case at hand, which is about a search of cars while they're parked, and not traffic.

          reply to this | link to this | view in chronology ]

          • icon
            Federico (profile), 13 Sep 2021 @ 11:10pm

            Re: Re: Re: Re: Re: parking plainly does not pose a clear and si

            And how do you think the car got there? By teleporting? The city argued it needs some leeway in managing cars, by means of managing their parking. The judge answered that it doesn't get to have it, because "liquor sales" are clearly more dangerous and not comparable.

            reply to this | link to this | view in chronology ]

            • icon
              nasch (profile), 14 Sep 2021 @ 7:00am

              Re: Re: Re: Re: Re: Re: parking plainly does not pose a clear an

              The fact that traffic is dangerous has no bearing on issuing parking tickets. The purpose of the parking tickets is not to make traffic safer, it's to keep people from taking up parking spots for too long. They wanted an exception to treat parking as a closely managed business. Not cars generally, parking. But parking isn't particularly hazardous.

              reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2021 @ 3:47pm

    I think its more interesting that the court admitted parking enforcement is a revenue-generating scheme, not genuine community caretaking.

    reply to this | link to this | view in chronology ]

  • icon
    Nathan F (profile), 9 Sep 2021 @ 3:51pm

    Chalk the street around the tires. Put a line out from the center of the contact point and then one on the front and back edges of the front and back tires.

    That shouldn't be a search because they aren't infringing on a person's property to do that. They are in fact marking city property.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 9 Sep 2021 @ 5:48pm

    They still chalk?

    I'm surprised chalking is still a thing when a digital system could track plates, geolocations and time stamps for duplications that violate the permitted parking window, and even automate ticket writing.

    And I'd expect some company would gladly make such a device and sell it to precincts for around $10k and they'd buy it.

    So it's curious chalking tires hasn't gone the way of the pay phone.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Sep 2021 @ 4:42pm

      Re: They still chalk?

      Conveniently moving a car and returning to the same place clears the mark showing it wasn't left there. If the term is in days instead of hours how can they tell a car returned from one left in place?

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 12 Sep 2021 @ 5:00pm

        Re: Re: They still chalk?

        I think chalk is generally used in spots where the limit is a few hours or less.

        reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 13 Sep 2021 @ 12:04pm

        The purpose of parking limits

        I guess this raises the purpose of parking limits. If a two-hour limit is only for leaving the car unattended then yeah, the owner can go back, wash the chalk off and then leave the car parked for another two hours. And chalk is doing its job.

        If the purpose is to limit occupation without any other restrictions, then the owner can start, leave, drive back and forth a couple of times (or drive around the block while Guido menaces potential parkers and re-park.

        But for most unpaid, limited-time car parks (as far as I know, IANAL) they want to assure you did not occupy the car park for more than the limited time in a day which the ALPR database method would serve to better manage. Otherwise, again, the owner could park at the Safeway lot (buy a candy bar if he wants to validate the parking) and then at the time limit, repark his car in the same lot.

        So meddling around with chalking rules seems to evade discussion of what parking rules are about, and how they serve society / car owners / landlords.

        reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 13 Sep 2021 @ 12:23am

      Re: They still chalk?

      I'm surprised chalking is still a thing

      Chalk is cheap and effective, at least outside of the US 6th Circuit. It has been used for years, requires little training, and the technology is fairly well understood.

      If the matter is contested, the meter maid can explain the process used and the court can easily gauge its reliability.

      reply to this | link to this | view in chronology ]

  • icon
    R2_v2.0 (profile), 9 Sep 2021 @ 6:32pm

    Priorities

    Prosecution: The stop was pre-textual
    Court: Not a problem
    P: It was extended to allow a canine search
    C: What you gonna do?
    P: The officer shot and tased my client repeatedly
    C: No case on point for this - QI
    P: They scuffed the tires
    C: WHAT!? This is outrageous. Evidence suppressed.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 9 Sep 2021 @ 9:13pm

    Chalking is the validation for a parking permit [more or less]. Calling it a violation of any Constitutional right is about as BS as it gets.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Sep 2021 @ 3:39am

      Re:

      defendants concede by admitting that “Ms. Hoskins’s job was not impacted in any respect if she did not chalk tires.”

      Want to try again?

      reply to this | link to this | view in chronology ]

  • identicon
    Peter, 10 Sep 2021 @ 12:51am

    But chalking is vandalism....right?

    Considering people have been convicted of chalking the sidewalk, I am surprised this was not used as a valid argument that chalking the tyres is the same.

    reply to this | link to this | view in chronology ]


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