Tire Chalking And The Fourth Amendment
A Federal Appeals Court recently found that chalking the tires of a car parked in a public place is a violation of the Fourth Amendment. It's not at all clear that this decision is correct.
As James Joyner noted last week, the 6th Circuit Court of Appeals issued a ruling finding that the practice of marking tires to track whether a car has violated parking regulations violated the Fourth Amendment to the Constitution:
There is a dance that takes place every weekday in cities and towns across the country, and it begins with people walking outside to look at their tires.
If there is a chalk mark, they know that sometime in the next hour or two, they will need to move their cars to avoid a parking ticket. No mark? They return to work, only to come back out later and check again.
“The parking-lot shuffle,” said Alison Taylor, 38, who works in the advertising department of the local newspaper in Saginaw, Mich.
Thanks to Ms. Taylor, this strange dance may be coming to an abrupt end. She sued the city of Saginaw, and on Monday, a panel of three federal judges hearing an appeal in the case ruled unanimously that the police practice of chalking tires to tell whether a car overstays the time limit on a parking space is unconstitutional.
Chalking violates the Fourth Amendment’s ban on unreasonable searches and seizures, the Sixth Circuit Court of Appeals judges said, reversing a lower court’s decision to dismiss the suit and sending it back for trial instead.
Chalking is a straightforward exercise. A parking enforcement officer marks the tires of cars parked in time-limited spots; when the officer returns later, the mark, a sort of pre-emptive scarlet letter, reveals that it has been there an illegally long time. Though officers these days may also take time-stamped photographs to document the infraction, “chalking tires is very old-fashioned,” said Donald Shoup, a professor of urban planning at the University of California, Los Angeles. “The first references I’ve seen to it were in the 1920s.”
Every city with a parking ordinance probably used chalking at one time, Professor Shoup said, but the practice is becoming less common, replaced by computerized meters, pay-by-phone apps and digital vehicle recognition systems, including one called autoChalk. The manual version has always been arbitrary and inefficient anyway, Professor Shoup said:
“The enforcement is kind of random, so whenever you get a ticket you say, ‘Why me?'”
The legal campaign against chalking in Saginaw started on a weekday in the fall of 2016, when Matthew Gronda, a local lawyer, was sitting in his car outside the county courthouse talking on the phone to another lawyer, Philip Ellison. During their conversation, a parking enforcement officer came by and chalked Mr. Gronda’s tire.
“Hey, this is a search,” Mr. Gronda recalled telling Mr. Ellison.
In no small part, the argument raised by the Plaintiff’s and the opinion issued by the 6th Circuit relied heavily on a Supreme Court case from several years ago called United States v. Jones, which I wrote about at the time the decision was handed down. In that case, Federal law enforcement had planted a GPS location device on the Defendant’s primary means of transportation and used it to track his movements as part of their criminal investigation. The Supreme Court ruled unanimously that the officers had violated Jones’s Fourth Amendment rights but there was not a broad agreement among the Justices for why this was the case. The result was an opinion that, while unanimous in agreement on how the case should be decided, failed to provide much guidance on why this was the case.
The Plaintiff in the tire marking case used the rationale provided by Justice Scalia’s opinion for the Court, which essentially argued that placing the GPS device on Jones’s vehicle was a trespass forbidden by the 4th Amendment. Similarly, the Sixth Circuit panel found that the policy in question served no legitimate public safety purpose and that enforcement of the parking regulation by the City of Saginaw. Michigan, where the incident took place.
Since it was issued last week, though, this decision has come under some scrutiny with many wondering how marking a tire on a car parked in a public place (as opposed to private property as happened in the Jones case) is a Fourth Amendment violation. Orin Kerr, who writes frequently about the Fourth Amendment at The Volokh Conspiracy is among those who is skeptical of the ruling:
(1) From a practical perspective, this is a really important decision. It concludes that a routine practice that wasn’t thought to be illegal (if it was thought of at all) is actually unconstitutional. I’m not sure if the decision is correct. And as I’ll explain below, there are several plausible but debatable moves in the opinion. But this decision is now binding in the Sixth Circuit and may also be followed elsewhere: Traffic enforcement officers around the country should be paying attention to this.
(2) Is the decision right? As I said above, I’m not sure. United States v. Jones introduced the idea of the trespass or physical intrusion test for searches in 2012. As I’ve written before, Jones could mean a lot of different things. It’s just not yet clear what the standard is or how it should apply. Given that, I think the result in Taylor is plausible but that it’s also subject to several plausible objections.
(3) Start with the question of trespass. First, the court takes from Jones the idea that the test is “common law trespass.” Maybe that’s the test. But maybe it’s not. The Court in Florida v. Jardines notably did not describe the Jones test as a trespass test. Instead, Jardines described the test as “physical intrusion.” That’s potentially pretty different. And assuming the test is common law trespass, figuring out what kind of trespass test that meant is actually pretty tricky. Maybe it’s the Restatement test, but maybe it’s something different.
(4) I’m also not sure of the court’s conclusion that the chalking was “to obtain information,” needed to satisfy the search test from Jones. That’s certainly a possible result. But it also strikes me as a somewhat awkward fit.
(5) Assuming the chalking is a search, the next question is whether it is constitutionally reasonable. I agree with the Court’s analysis of the automobile exception and the community care-taking exception. But I suspect some courts might disagree with the Sixth Circuit’s reasonableness analysis on the ground that chalking is a de minimis search as part of a regulatory scheme. It’s just putting a temporary mark on a tire, it causes no damage, and it doesn’t reveal anything. Some courts have articulated doctrines that allow low-level searches as reasonable based on a balancing of interests without particularized suspicion. I can imagine that as a possible path for other courts. We’ll see.
(6) I have to wonder how much this issue matters in a world of smart phones. Everyone is now carrying around a camera. Instead of chalking the tire, the parking folks can just take a picture of the car. They can figure out if the car moved by comparing the pictures at Time A and Time B to see if the car is in the same place. It may be more complicated or expensive than chalking, but it avoids the Fourth Amendment concern by just observing what is in public without any physical attachment to property.
(7) Finally, it’s not at all clear what if any remedies may be applicable. Chalking is common and hasn’t been thought to be illegal. Given that, qualified immunity should attach and civil suits against the officers won’t work. And it’s not clear that there is any exclusionary rule available in an enforcement action to pay the parking ticket, as that is a civil proceeding and the exclusionary rule may not apply under United States v. Janis.
Kerr is far better versed in Fourth Amendment law than I am so if he is ultimately unsure about whether or not the 6th Circuit got this matter right then you can rest assured that there is not an easy answer to the question. Had you asked me before this decision if I thought that chalking a tire parked in a public place for the purpose of parking enforcement, which is ultimately a civil matter rather than a criminal one, I would have most likely said no.
One of the main reasons for that is the fact that this all happened on a public street where the relevant parking regulations are presumable well-indicated to drivers. As such, Taylor did not have a reasonable expectation of privacy when it comes to the question of whether or not her car moved over the relevant time period, which is the reason that parking enforcement officers use methods like chalking to track whether a car has moved or not. This is different from Jones in that law enforcement in that case entered on Jones’s property to place the GPS device on his vehicle, even taking the step of removing a tarp that was covering the vehicle in the process. This was a clear violation of Jones’s property rights. An additional fact distinguishing this case from Jones is the fact that the GPS device was used to track Jones over the period of a month without his knowledge while the chalking was used for a period lasting a most a couple of hours to determine if Taylor had moved her car. This strikes me as significant.
As Kerr notes, this ruling also raises questions about other methods that could be used to enforce parking regulations. For example, many jurisdictions now provide enforcement officers with cell phones they use to take pictures of parked cars in public places that they can then compare to what they see when they return after several hours to see if cars have moved. Does the Court’s ruling here mean that taking a picture of something in a public place is a Fourth Amendment violation? That would seem like an absurdly restrictive view of what the Fourth Amendment permits in situations such as this.
At this time the City of Saginaw has the choice to either appeal this case to the Supreme Court or seek an en banc review from the full Court of Appeals. Given the small amount of money involved, they may decide that neither avenue is cost-effective, especially since there is no guarantee either Court will accept the case for review. If they do go the Supreme Court route. though, I hope the Justices take the case if only so they can clarify exactly what they meant in their ruling in United States v. Jones.
Here’s the opinion in the case for those interested:
Taylor v. City of Saginaw by on Scribd