Parking & Mobility magazine, November 2021

Page 12

/ THE BUSINESS OF PARKING /LEGAL

Tire Chalking Ruled Unconstitutional (Again) By Michael J. Ash, Esq., CRE

T

HE LAW IS NOT A STRAIGHT LINE— it zigs and zags. Cases go to trial, cases go up on appeal,

cases get remanded back down for new trials and get appealed again. This is how the law is made. And so, the legal saga of tire chalking brought to federal court and the national interest in Taylor v. City of Saginaw, Mich. et al, has zigged and zagged again. This is the third time I’m writing about this case in this space. A quick refresher: challenge, it relied on the facts in the affidavit from the city’s director of neighborhood services and Inspections that found on-street parking enforcement is critical to the health, safety, and welfare of the community. Onstreet parking enforcement was upheld again—for a brief time anyway.

Another Appeal

The ticket recipient appealed again.

In 2014, a resident of Saginaw, Mich., received 15 parking tickets “for allegedly exceeding the time limit of a parking spot.” Each parking ticket included the date and time the tire of the resident’s vehicle was marked with a “chalk-like substance.” The recipient of the tickets hired a lawyer and challenged the “methodology of placing a chalk mark on one of the four tires of the vehicles to obtain information to justify the issuance of tickets throughout the territorial limits of the City of Saginaw” arguing that “chalk marks violate the Fourth Amendment of the United States Constitution.” On a motion from the city, the district court initially dismissed the complaint. On appeal, the Sixth Circuit Court ruled the dismissal was improper and sent the case back to the district court for more proceedings. At this point, this case found the interest of the media, who prematurely proclaimed tire chalking to be illegal. On remand back to the lower court, a factual record was developed as to the custom and practice of tire chalking. In the trial court’s second opinion dismissing the

10 PARKING & MOBILITY / NOVEMBER 2021 / PARKING-MOBILITY.ORG

In the most recent decision, the Sixth Circuit Court ruled that “[b]ecause tire chalking is a search that defendants conducted without an authorizing warrant, it is presumptively unreasonable.” The legal argument over the validity of tire chalking is whether the parking enforcement technique is a violation of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. The Fourth Amendment states: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The Fourth Amendment review is a two-part test: 1. Did a search or seizure occur? 2. Was that search or seizure unreasonable? The ticket recipient tried to extend the holding of a recent case that decided the government’s installation of a GPS device on a target’s vehicle was a search under the Fourth Amendment because the physical installation of the device on the vehicle constituted a trespass of the car owner’s property rights. However, trespass alone does not qualify as a search, rather, there must be both trespass and “an attempt to find something or to obtain information.”