by Karl R. Ottosen and Chloe Cummings (Fall 2019)
A recent federal court decision suggests the emergence of a new standard of law surrounding the practice of chalking tires. Specifically, a federal appeals court found that “tire chalking” is a violation of the Fourth Amendment and is unconstitutional in Taylor v. City of Saginaw, 922 F.3d 328 (6th Cir. 2019).
Chalking tires is a practice commonly used by local governments in an effort to mark cars in time-limited parking spaces. A parking enforcement official will first place a chalk mark on the tire. The officer will then leave and later return to the parking spot to reveal if the chalk mark is still in the same place. If the chalk mark is in place, then the parking official knows that the car has been parked in one area over the proscribed time period and can issue a parking ticket.
Alice Taylor, a Michigan resident who received 15 traffic citations in two years as a result of the City of Saginaw tire chalking practices, brought suit in federal court challenging the constitutionality of the practice. Each traffic citation was issued by the same parking enforcement official. Taylor argued that the act of chalking her tires was unconstitutional because it constituted a trespass onto privately owned property. In other words, because the vehicle is privately owned, Taylor argued it is unconstitutional to place a chalk mark on the vehicle for purposes of information gathering without a valid search warrant. She brought a Section 1983 claim against the City.
The Sixth Circuit Court of Appeals ultimately agreed with Taylor and wrote that chalking tires is indeed a kind of trespass on to an individual’s property and, therefore, requires a warrant. More specifically, the trespass infringes on the Fourth Amendment search and seizure rights of citizens. The Fourth Amendment protects citizens from unreasonable searches and seizures.
In considering potential Fourth Amendment violations, a court will generally ask two questions: (1) if the conduct constitutes a government search; and (2) if the search was reasonable.
The Sixth Circuit found that chalking tires is a search under the Fourth Amendment. The court reasoned that when the government official chalked the tire, it was trespassing onto private property and made intentional physical contact with the car. Furthermore, the trespass was combined with an effort to obtain information in an attempt to issue citations. The court compared this decision to a 2012 court ruling that found affixing GPS trackers constituted a “search.”
In addition to finding that tire chalking is a search, the court also found that tire chalking is an unreasonable search under the Fourth Amendment. Tire chalking occurs when cars are legally parked on the street. Furthermore, the chalk is intended to deduce whether the cars have moved within a certain period of time and can be ticketed for their failure to change spots. The court reasoned that the search is unreasonable because the cars are marked when they are “parked legally, without probable cause, or even so much as ‘individualized suspicion of wrongdoing’ – the touchstone of the reasonableness standard.”
The municipality argued that chalking should instead be upheld as constitutional because chalking protects the public through “community caretaking” which is an exception to the warrant requirement. This exception applies when the function is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”
The Sixth Circuit determined that the community caretaking exception is narrowly applied by the courts and typically applies when public safety is at risk. In this case, however, the Sixth Circuit found that tire chalking did not bear a relationship to public safety. There was no evidence that being parked in one location for an extended period of time posed any hazard or public risk. The court found that the parking citations were instead directed at raising revenue. In fact, Taylor’s attorney estimated that chalking tires, and the resulting citations that were issued, generated approximately $200,000 per year in traffic tickets.
After such a strong ruling, many units of local government stopped the practice. A professor at University of Southern California Law suggests that local government officials may be able to avoid liability for Fourth Amendment infringement by taking a picture of the car instead of chalking.1 Under this approach, enforcement officials can obtain information regarding the placement of the car without physically marking or touching the vehicle. However, such photos should be time stamped, and this solution does not account for people who may move their vehicle and then return to the same parking space. In any event, officials seeking to enforce time-based parking restrictions will need to seek alternative enforcement measures moving forward.
1Alex Johnson, Chalking tires to enforce parking rules is unconstitutional, court finds, NBC News, April 22, 2019 https://www.nbcnews.com/news/us-news/chalking-tires-enforce-parking-rules-unconstitutional-court-finds-n997326