By Ted Nolting, Kroger Gardis & Regas LLP
After receiving her fifteenth parking ticket as a result of having her tires “chalked,” Alison Taylor had enough and filed a lawsuit against the city of Saginaw, MI, for violation of her Fourth Amendment right against unreasonable searches. After the district court granted the city’s motion to dismiss, Taylor appealed to the Sixth Circuit Court of Appeals.
In Taylor v. City of Saginaw, No. 17-2126 (6th Cir. 2019), the court first evaluated whether the chalking constituted a “search.” The court began by following the United States Supreme Court’s analysis in United States v. Jones, 565 U.S. 400 (2012): where governmental invasions are accompanied by physical intrusions, a search occurs when the government (1) trespasses upon a constitutionally protected area (2) to obtain information. Although the physical contact was slight, the court nonetheless held that it would constitute common law trespass since it was intentional (and certainly unwelcomed) contact. Next, the chalking was clearly intended to obtain information—identifying vehicles that have been parked in the same location for a certain period of time in order to issue citations—and therefore chalking constitutes a search.
The court then reviewed the “reasonableness” of the search, noting that the Fourth Amendment does not proscribe all searches, “but only those that are unreasonable.” The city argued that the warrantless search of Taylor’s vehicle was reasonable because there was “a lesser expectation of privacy with automobiles.” The court rejected the argument, noting that even with the reduced expectation of privacy, the chalking occurred without “probable cause or even so much as ‘individualized suspicion of wrongdoing’—the touchstone of the reasonableness standard.” The court likewise rejected the city’s “community caretaker” exception from the warrant requirement, as the city failed to establish that the chalking involved public safety component or that Taylor’s illegal parking would result in ongoing harm to the community.
The court reversed the grant of the motion to dismiss and remanded the matter to the district court. After the opinion received national media attention, the court amended its opinion, stressing that its decision did not find that all chalking would violate the Fourth Amendment, but that the two exceptions to the warrant requirement relied on by the city in this particular case were inapplicable.
Since the opinion was published, at least two other class action lawsuits have been filed against the practice of chalking. While the opinion does not technically apply to Indiana, at least one Indiana city has stopped chalking to avoid a lawsuit. Until the Seventh Circuit weighs in or the Supreme Court settles the issue, Indiana municipalities utilizing chalking should find other means to prevent extended parkers, such as chalking the street next to the tires, or simply taking photographs.
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