UPDATE: City of Athens responds to court's finding that chalking tires to enforce parking rules is unconstitutional
That parking officer who swipes a chalk mark on your tire to keep track of how long you've been parked is violating the Constitution, a federal appeals court panel found Monday.
A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati reinstated a 2017 case brought by Alison Taylor, who was issued 15 parking tickets in three years in Saginaw, Michigan, by the same parking enforcement officer, who's described in the suit as the city's "most prolific issuer of parking tickets."
Taylor argued that marking tires with chalk constituted an unreasonable search under the Fourth Amendment to the Constitution. But a U.S. district judge in Michigan dismissed the suit in 2017, writing that even if chalking a tire is a search, it's a reasonable one, because a piece of chalk isn't an "information-gathering device" that could violate Taylor's privacy, like a GPS tracker, for example.
Two of the three members of the appeals panel on Monday agreed that chalking a tire is a search. But they disagreed that it was a reasonable search.
U.S. Circuit Judge Bernice Bouie Donald wrote that when drivers pull into parking spaces, "the city commences its search on vehicles that are parked legally, without probable cause or even so much as 'individualized suspicion of wrongdoing' — the touchstone of the reasonableness standard."
Moreover, overstaying your welcome at a parking space doesn't cause "injury or ongoing harm to the community," she wrote, meaning the city is wrong to argue that parking enforcement is part of its "community caretaking" responsibility, potentially justifying a search without a warrant.
In fact, she wrote, "there has been a trespass in this case because the City made intentional physical contact with Taylor's vehicle."
While Saginaw is entitled to regulate public parking, "the manner in which it chooses to do so is not without constitutional limitation," Donald wrote.
Orin Kerr, a law professor at the University of Southern California, tweeted one suggestion: Take a picture of the car or its tires without "trespassing" on it with chalk.
In the Tennessee Valley, the city of Athens responded to the ruling with the following statement:
"On April 23, 2019, the City of Athens was made aware of a ruling from United States Court of Appeals in the 6th Circuit. The ruling dealt with a case in Saginaw, Michigan in which a woman received numerous parking tickets. She sued the City of Saginaw, claiming that it was unconstitutional for the City of Saginaw to “chalk” her car’s tires. Chalking is a practice that has been used all over the nation for decades, in which a parking enforcement officer places a mark on a car tire with washable chalk, and then comes back after the parking time limit has expired to see if the car has moved.
Although the first court that heard the woman’s case ruled against her, she appealed the ruling. The 6th Circuit Appellate Court ruled in favor of the woman and found that putting chalk on the tires of a car is a violation of the 4th Amendment’s prohibition against unreasonable search and seizure.
Unless a different decision is made by a higher court, this rule will continue to apply to everyone in the 6th Circuit. As the City of Athens is in the 6th Circuit, the City immediately made arrangements to stop putting chalk marks on tires. The City is reviewing the other methods of enforcement it utilizes to ensure that the law is being enforced within the confines of this most recent court decision.
The locally adopted regulations regarding parking in the downtown area are still in place, in order to ensure that on-street, City-owned parking is available for people patronizing the businesses and services within downtown. Free parking is limited to 2 hours during the hours of 8:00 a.m. until 5:00 p.m. Monday through Friday, by ordinance. Long-term free parking is conveniently available at the City-owned parking lot adjacent to Market Park.
City Manager C. Seth Sumner stated, 'The court's ruling yesterday morning was a surprise to hundreds of communities across the Circuit’s districts that have practiced this unobtrusive and reasonable means to enforcing locally adopted ordinances, especially since it has been upheld in other courts. At the moment I learned of the ruling and read through the court documents, the City halted its chalking practice. The City of Athens is committed to upholding the United States Constitution and our City’s own ordinances; we are already honoring the most recent ruling on this issue.'"
Monday's ruling sends the lawsuit back to U.S. District Court in Bay City, Michigan.