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.