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Op-Ed

Warrantless chalking

November 7, 2022

A divided Ninth Circuit panel, in a case of first impression, rules on a controversial police practice. Criminal parkers are not going to be happy.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

More evidence that you can file a class action over anything: a divided U.S. Court of Appeals for the Ninth Circuit panel has issued a 51-page split ruling on tire-chalking.

Yes, someone who apparently needs to have pristine tires filed a class action claiming that police officers who marked tires of parked cars with chalk were violating the Fourth Amendment ban on unreasonable searches.

Consider the description of this controversial practice from the court ruling: “Chalking consists of a City parking officer placing an impermanent chalk mark of no more than a few inches on the tread of one tire on a parked vehicle. … According to the district court’s finding, the chalk mark on the tire rubs off within a few tire rotations after driving.”

Imagine the investigative work that went into that finding.

Imagine taking this issue all the way up to the Ninth Circuit. (Actually, you don’t have to imagine it since it happened.)

I’m not going to take a position on this issue. The court split on it so I guess there are arguments on both sides. But the history of this issue is fascinating.

For example, there’s this from the majority opinion:

“For most of tire chalking’s nearly one-hundred-year history as a parking enforcement tool — a history that would seem to coincide with the rise of the automobile — it appears that tire chalking went unchallenged on constitutional grounds.”

It would “seem” to coincide with it? I am now picturing the hind leg of a horse being chalked.

Why did these plaintiffs file this history-making, first-of-its kind constitutional challenge? I don’t know but there’s a clue in the ruling — both of the plaintiffs got parking tickets. Now do the math — do you pay the tickets or spend years in litigation?

It’s a tough choice.

I recommend reading the full ruling. It’s very entertaining. And if you’re wondering about the dissent, here’s a taste:

“No matter how well meaning, modest, or longstanding the intrusion into personal effects, the Fourth Amendment commands that all government searches, with some narrow exceptions, be supported by a warrant and individualized suspicion of wrongdoing.”

Now imagine the chalking judge who has to issue the warrants.

Tardis law. Time travel is real! A lawyer in Georgia has convinced the Supreme Court of Georgia to punish him in the past.

Really. I don’t make this stuff up. Check out In the Matter of William D. Thompson, Jr., in which we learn that Mr. Thompson petitioned for a “voluntary reciprocal discipline” of a one-year suspension to be imposed retroactively.

I have no idea why anyone would want this, but the court granted it. Mr. Thompson has now been suspended for a year in Georgia, starting in January 2020. History has been rewritten. The Georgia public of 2020 can rest easy.

I suppose this has something to do with this lawyer wanting to be reinstated in Georgia but he already, in real time, served a similar suspension in Florida. Apparently, it wasn’t enough penance.

The 11-page court ruling ends with this: “Thompson will nevertheless remain under an administrative suspension due to his failure to pay his license fee...”

Maybe he should have started with paying his fee.

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