Shea posted here about a 2019 opinion from the Sixth Circuit holding that chalking tires for purposes of parking enforcement was a Fourth Amendment search and rejecting at least some of the proposed legal justifications for the practice. That case led to some further proceedings and eventually to a new opinion, Taylor v. City of Saginaw, Michigan, 11 F.4th 483 (6th Cir. 2021), holding that the suspicionless chalking of tires (1) is a search, (2) is not justified as a community caretaking function, and (3) is not justified as an administrative search. The Taylor court ruled that the law was not previously clearly established, so the parking officer whose conduct was at issue was entitled to qualified immunity. But going forward, warrantless tire chalking is a no-no in the Sixth Circuit. Now another circuit has weighed in with a different perspective.

A few weeks ago, the Ninth Circuit decided Verdun v. City of San Diego, 51 F.4th 1033 (9th Cir. 2022). The court noted that since the 1970s, San Diego parking officers have placed “an impermanent chalk mark of no more than a few inches on the tread of one tire on a parked vehicle” to help ascertain compliance with time limits on parking: “If a vehicle’s chalk mark is undisturbed after the parking limit has expired, this shows the vehicle has exceeded the time limit for the space.”

The plaintiffs in the case alleged that they had received parking tickets after having their tires chalked. Perhaps inspired by Taylor, they filed a putative class action under 42 U.S.C. § 1983, alleging that the use of chalk was an unlawful search of their vehicles. Readers may be shocked to learn that at least one of the plaintiffs appears to be an attorney.

In pretrial proceedings, the city vigorously defended its parking enforcement practices. Its evidence showed that “consistent enforcement increases parking space turnover and allows the City to increase the availability of parking in high-demand areas. When parking spaces do not regularly turn over, drivers may engage in ‘cruising’ – that is, circling blocks in search of parking – or may double-park in lanes of traffic while waiting for spaces to become available. Drivers may also illegally park in zones reserved for buses, disabled drivers, or emergency personnel.” All of this makes the streets more congested and less safe and has negative impacts on commerce. And while parking enforcement could be done using photos or license plate readers, tire chalking is the most efficient and cost-effective way of doing it.

On this record, the district court granted summary judgment for the city. It found that tire chalking is a search under the Fourth Amendment but is justified under the administrative search doctrine.

The Ninth Circuit affirmed. The majority expressed some doubt about whether that tire chalking is actually a search under the physical trespass theory of United States v. Jones, 565 U.S. 400 (2012), a case about the warrantless installation of a GPS tracking device on a car. But assuming arguendo that it is a search, the majority ruled that the search was nonetheless permissible under the administrative search doctrine. That doctrine, which is closely related to or maybe the same as the special needs doctrine, allows warrantless searches that are not for the primary purpose of crime control if they are reasonable under the circumstances. The court found tire chalking to be analogous to motor vehicle checkpoints, which involve warrantless seizures to promote roadway safety. Chalking tires serves the “strong governmental interest in managing traffic and parking,” and does so in a way that is reasonable, minimally intrusive, and tightly linked to the intended goal. For all these reasons, the court disagreed with Taylor and upheld the use of tire chalk.

Judge Bumatay dissented, arguing that warrantless tire chalking calls to mind the “Founding generation’s aversion to Crown officials’ abuse of investigative tools to search and seize at will and without explanation,” practices that “helped spark the American Revolution and led to the Fourth Amendment and its protection from ‘unreasonable’ searches and seizures, which was meant to forever bar such baseless intrusion into lives and property of others.”

There’s a pretty fiery dissent and a circuit split. Could tire chalking be headed to the Supreme Court? I have trouble picturing it, but anything is possible. If the Court does weigh in, rest assured that you will be able to read about it here.

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