To Chalk or Not to Chalk – The Sixth Circuit Weighs In

To Chalk or Not to Chalk – The Sixth Circuit Weighs In

To Chalk or Not to Chalk – The Sixth Circuit Weighs In

It’s a fairly common practice in small towns around the country. You’ll see a city employee marking the tires of parked tires with chalk. Then a little later they’ll check again to see if any of the cars have parked too long. Little did you know, there was a constitutional issue lurking in the shadows--does the chalking of a car’s tire constitute an unreasonable search or seizure under the Fourth Amendment?

That question was recently addressed by the Sixth Circuit Court of Appeals in Taylor v. City of Saginaw, No. 17-2126. The plaintiff received multiple parking tickets from Saginaw, Michigan, a city of roughly 50,000. In April, 2017, the plaintiff sued under 42 U.S.C. §1983, a federal law authorizing recovery of damages when someone acting for a state or local government commits a constitutional violation. The plaintiff alleged that chalking a car tire, without a warrant, amounted to a violation of the Fourth Amendment’s protection against unreasonable searches and seizures. The lower court found that a search had occurred, but that it was reasonable under all the circumstances. The plaintiff then appealed to the Sixth Circuit.

The first issue addressed by the Sixth Circuit was whether “chalking” a car tire amounted to a search for Fourth Amendment purposes. Historically, a search occurs when someone invades an area in which a person has “a…reasonable expectation of privacy.” Recent cases from the Supreme Court, however, have added other requirements--notably, whether the intrusion, however slight, amounts to a common law trespass.

With these factors in mind, the court concluded that the chalking process was, indeed, a search. Marking car tires with chalk may be “low tech,” but it is still done for the explicit purpose of determining whether a car owner has violated a parking ordinance. Because the chalk mark intrudes upon privately owned property and serves an investigative purpose for the city, it is a search.

The next issue was whether the search was reasonable. Under established law, the owner of a car has a diminished expectation of privacy. Cars are mobile and are generally more accessible to the public. Therefore, even without a warrant, a car can be subject to a search as long as there is probable cause supporting that search. Here, however, no probable cause existed. All cars parked in a given area are chalked and then reexamined at a later time. At the time the chalk mark is made, the city has no reason in the world to suspect that a parking violation has actually occurred. It’s only when the employee sees the chalk mark again on his return trip that probable cause even exists. Therefore, the “car” exception does not support the practice of chalking parked cars.

The city also attempted to invoke what is popularly known as the community caretaker exception. When the government is acting to protect the public at large from injury or ongoing harm instead of investigating crimes, Fourth Amendment protections may be relaxed. For example, a car may be searched after being impounded--not for investigative purposes but, instead, as part of a general policy for making an inventory and protecting the public from any potential harm. Here, however, no one disputed the fact that the chalking was done for purposes of enforcing the city’s parking ordinance and not for any kind of public safety. Because the city failed to prove that the community caretaker exception applied, the chalking was both unreasonable and unlawful.

The ruling in this case applies in every state covered by the Sixth Circuit--Kentucky, Michigan, Ohio, and Tennessee. To be honest, I have mixed emotions about the ruling and its impact. I have a bit of a libertarian streak in me. I’m not a fan of any kind of government overreach. But I also have a hard time believing that a harmless, temporary mark on a car tire amounts to a Fourth Amendment violation, especially in light of a long line of cases recognizing that the privacy rights we have in cars are substantially less than in other kinds of property. I also wonder how this ruling will affect Smallville, USA. With the “low tech” option no longer available, cities affected by this ruling will have choices to make that could have budget-busting consequences. Will they be forced to buy parking meters or investigate other new and expensive technologies? The answer for now is unclear. But in the coming days, weeks and months, hard choices will have to be made.