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Michigan city defends tire-chalking policy at Sixth Circuit

The federal appeals court heard debate for the second time over whether chalking the tires of a parked car is an unconstitutional search under the Fourth Amendment.

CINCINNATI (CN) — A Michigan resident on the receiving end of 15 parking tickets asked the Sixth Circuit on Thursday to reinstate her Fourth Amendment claims against the city of Saginaw, arguing its practice of chalking tires is unconstitutional.

The case came before an appeals court panel for the second time, following a 2019 decision in which the court ruled the city's practice of using chalk to mark the tires of parked cars was an unconstitutional search.

As part of their enforcement of parking regulations, Saginaw parking officials mark tires and then return to determine if the vehicle has moved, and issue tickets if the owners have violated timing restrictions.

Alison Taylor challenged the practice in federal court, and although her complaint was initially dismissed, the Sixth Circuit panel in the 2019 case remanded after it determined the so-called community caretaking exception to the Fourth Amendment did not apply. The panel determined the chalking of the tires constituted a warrantless search and had no relation to public safety, as required under the caretaking exception.

Discovery was conducted when the case returned to the district court, and U.S. District Judge Thomas Ludington granted the city's motion for summary judgment last year.

Ludington, an appointee of George W. Bush, determined that while a search of Taylor's vehicle had occurred when her tires were marked, the government's interests fell within the scope of its police powers and the practice was therefore covered under the administrative search exception.

"Chalking," Ludington wrote, "may lead to more effective parking regulation because it reminds drivers to move their vehicles before their allotted time has expired. Without the chalk mark reminder, some drivers may forget that their time is being monitored."

He added, "Their vehicles would remain in parking spots beyond their allotted time and prevent others from using the parking location. This prevents circulation of people who can frequent downtown businesses and requires increased effort and resources by the City to issue parking tickets."

In her brief to the Cincinnati-based appeals court, Taylor argued the city's failure to obtain warrants before chalking her tires rendered the searches unreasonable under the Fourth Amendment.

"The Fourth Amendment limits the methods by which government official[s] enforce laws and ordinances -- even ones undisputedly within the general purview of a municipality's police powers. Chalking is a type of trespassory warrantless search which has no applicable warrant exception," the brief states.

In its brief, Saginaw argued that no search takes place when one of its officials marks a tire and likened the process to a police officer knocking on a door. The city also pointed out that enforcement of parking laws "promotes safety and order on roadways and ensures equal access to downtown, including local businesses."

"The interference in this instance is minimal," the brief states. "A discrete chalk mark on a tire that washes away does not interfere with an individual's liberty...The chalk mark is harmless, is temporary, and is unobtrusive."

Attorney Philip Ellison argued on Thursday on behalf of Taylor, and told the three-judge panel the "dreaded chalk mark" used by Saginaw officials is unconstitutional.

"Not only does it offend us when we get that parking ticket," he said, "but it offends the Fourth Amendment."

U.S. Circuit Judge Joan Larsen, a Donald Trump appointee, asked whether the city is still using chalk to monitor parked vehicles.

Ellison admitted they no longer chalk tires, but pointed out his client's case is not mooted because the city "has not changed their ordinance or law in any way."

Attorney Kailen Piper argued on behalf of the city, telling the panel the lower court properly applied the administrative search exception because "automobiles are pervasively regulated."

Piper cited several U.S. Supreme Court cases, including South Dakota v. Opperman and Cady v. Dombrowski, and told the court "the government's interest [in parking regulation] furthers the statutory scheme."

The attorney explained that chalking a vehicle's tire is the only way an enforcement official can accurately determine whether that vehicle has remained in the same parking spot for longer than the allotted time.

In his rebuttal, Ellison told the panel that Saginaw failed to prove any of the Fourth Amendment exceptions apply to the current case.

"Once we establish it's a search, it's the government's burden to show an exception applies," he said, "It's not about regulating parking, it's about chalking tires being a trespass."

Larsen was joined on the panel by U.S. Circuit Judges Richard Griffin and John Nalbandian, appointees of George W. Bush and Trump, respectively. No timetable has been set for the court's decision.

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