Constitutional challenge to parking tickets in SanFrancisco

Based on: San Francisco Chronicle, “A woman is suing S.F. for $50 million over a parking ticket, saying tire chalk is unconstitutional,” Rachel Swan, Sep. 11, 2021

ALISON PATRICIA TAYLOR, Plaintiff-Appellant/Cross-Appellee, v. CITY OF SAGINAW, MICHIGAN; TABITHA HOSKINS, Defendants-Appellees/Cross-Appellants. (6th Cir., Aug. 25, 2021, No. 20-1538) 2021 WL 3745345

Two federal  lawsuit have been filed claiming that the the  use of chalk to mark tires for tickets in S.F. and other cities tickets is  unconstitutional because it is violation of drivers’ Fourth Amendment right to be free of unreasonable searches and seizures.

Maria Infante filed a  $50 million class-action claim on September 4, after a San Francisco parking enforcement officer marked her tire with  chalk on a residential street gave her a $95 ticket Infante claimed that San Francisco,“systematically” places chalk or a similar substance on vehicle tires “without the owners’ consent, surreptitiously to obtain information used as the basis for parking citation.”

In another case filed  against San Leandro on September 4, Akeel Nasser seeks  $5 million for class members whose tires were chalked to financially benefit the city. invokes four tickets he received from the city in March for allegedly exceeding a two-hour parking limit. The violations cost him $180.

A San Francisco attorney, Eduardo Roy, filed both suits which are viable because of a recent decision in the United States Court of Appeals for the Sixth Circuit. Drivers there brought a § 1983 action against the  city , alleging Fourth Amendment violations arising from marking of tires of motorist’s legally-parked vehicle with chalk. The United States District Court for the Eastern District of Michigan, dismissed the action. The Court of Appeals, (922 F.3d 328), reversed and remanded. On remand, the District Court granted summary judgment to defendants. The drivers  appealed and defendants cross-appealed.

The Court of Appeals, Griffin, Circuit Judge, held that:

Because tire chalking is a search that defendants conducted without an authorizing warrant, it is presumptively unreasonable. See Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). However, the warrant requirement is “subject only to a few specifically established and well-delineated exceptions.” City of Los Angeles v. Patel, 576 U.S. 409, 419, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015) (citation omitted). It is the government’s burden to establish the applicability of an exception to the warrant requirement. See Liberty Coins, LLC v. Goodman, 880 F.3d 274, 281 (6th Cir. 2018). The Sixth Circuit focused  on the applicability of the administrative-search exception.

The administrative search exception

 The  administrative-search exception aauthorizes “regimes of suspicionless searches where the program was designed to serve special needs, beyond the normal need for law enforcement.” City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) The Supreme Court has endorsed highway checkpoints near borders to curb illegal immigration, United States v. Martinez-Fuerte, 428 U.S. 543, 556–58, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), and sobriety checkpoints aimed at removing drunk drivers from the road, Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451–53, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). The Court has also authorized suspicionless drug- and alcohol-testing in various contexts, including for student-athletes, federal employees seeking promotions, and railway employees involved in accidents. See Edmond, 531 U.S. at 37, 121 S.Ct. 447.  The court found np special need here because municipalities have found ways to enforce parking regulations without implicating the Fourth Amendment. Tire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary. See Edmond, 531 U.S. at 37, 121 S.Ct. 447.

Once Taylor established that tire chalking is a search, the burden shifted to defendants to establish the reasonableness of the search by demonstrating the applicability of an exception to the warrant requirement. See Liberty Coins, LLC, 880 F.3d at 281. The Sixth Circuit held that the administrative-search exception does not justify the City’s suspicionless chalking of car tires to enforce its parking regulations. The Sixth Circuit ruling, which applies to Michigan, Ohio, Tennessee and Kentucky, has spurred  lawsuits in other localities.

A trial court in San Diego held that chalking tires is not a Fourth Amendment violation, a decision that is on appeal in the Ninth Circuit Court of Appeals in San Francisco.

Workarounds to chalking tires

In response, in Chillicothe, Ohio, officials put up new signs specifically warning people who parked in time-restricted areas that they were consenting to be chalked.

UCLA Professor Donald Shoup has studied urban parking policies which emerged in the 1920’s as a means to track cars that were parked too long and was already established when parking meters arrived in 1935.  Shoup said, “In the 1920s, they got used to chalking, because it’s easy to do. It’s just surprised me that it’s lasted so long. Municipal parking enforcement has been the most stagnant industry in the U.S. What other practices haven’t changed in a hundred years?”

Shoup stated that chalking leads to lax and selective enforcement and those who are cited do face high fines that are burdensome.

Many cities now equip parking officers with GPS-enabled license plate scanners and data analytics tools that can identify a parked car that hasn’t moved in one or two hours and confirm whether a tire has rotated at all. Oakland and Berkeley no longer use chalking and San Francisco and San Jose are nearly chalk-free.



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