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Chalking: Next Stop – U.S. Supreme Court?

On three occasions in the past, I have written about a case in Saginaw, Michigan in which the issue was whether chalking tires on parked vehicles violated the Fourth Amendment’s unreasonable search provision. (See, May 10, 2019September 10, 2021 and August 19, 2022.)

In that case, Taylor vs City of Saginaw,  11 F.4th 483 (6th Cir. 2021) (Taylor II) the plaintiffs urged that chalking their tires by the parking police of Saginaw, Michigan constituted an unreasonable search under the Fourth Amendment. On the second appeal to the Sixth Circuit, that court agreed, holding that the chalking of tires did NOT fall under the “administrative search” exception to the Fourth Amendment and thus constituted an unreasonable search within the meaning of the Fourth Amendment. The city was ordered to pay $1.00 for each instance of chalking the tires. (Id.)

The Ninth Circuit Court of Appeals has now weighed in on this important matter. In Andre Verdun et al vs City of San Diego and San Diego Police Department, Case No. 21-550046 (October 26, 2022), the plaintiffs brought a putative class action under 42 U.S. §1983 alleging that the chalking of their tires on their parked vehicles constituted an unreasonable “search” within the meaning of the Fourth Amendment.

The U.S. District Court granted summary judgment for the Defendant City and Police Department, concluding that although the chalking does constitute a “search” within the meaning of the Fourth Amendment, it falls within the ‘”administrative search “ exception to the warrant requirement. Plaintiffs appealed. (Id. at 4.)

The Ninth Circuit affirmed, holding that even assuming that chalking falls within the Fourth Amendment “search” provision, the “administrative search” exception applies. (Id. at 1.)

In its lengthy opinion, the appellate court discussed the history of tire chalking and the policies behind it including increasing parking space turnover (which assists public safety by preventing cruising, double parking, and illegal parking) and increases revenues for businesses by improving parking turnover thereby allowing more citizens to visit, shop and dine in commercial areas. (Id. at 2-6.)

The opinion then discussed the “administrative search” or “special needs” exception to the Fourth Amendment explaining that it applies “” …where special needs… make the warrant and probable cause requirement impracticable” and where the “primary purpose” of the searches is “distinguishable from the general interest in crime control.”” (Citations omitted) (Id. at 6.)

After a lengthy discussion of this exception and the different cases in which it has been applied, the appellate court holds that the chalking is a “reasonable” search within the meaning of the Fourth Amendment. (Id. at 16-21.) More practically (and perhaps the REAL reason), the court notes that it is “…clearly “impracticable” … to require San Diego to seek warrants for monitoring parking violations in thousands of parking spaces, which would create delays antithetical to the timely enforcement of parking violations.”) (Id. at 18.)

Finally, the Court notes that it’s holding “parts ways” with Taylor vs City of Saginaw, supra, pointing out that “[w]hile we are reluctant to create a possible circuit split, we do not find Taylor II analysis persuasive.” (Id. at 21-22.)

Which brings us to the U. S. Supreme Court. Many times, that court will agree to take and decide a case where there is a split in the circuits on an issue. Here, the Sixth Circuit finds chalking violates the Fourth Amendment while the Ninth Circuit does not. Does this mean the issue is ripe for decision by the U.S. Supreme Court?

In my previous blogs on this issue, I have noted that while public policy and issues affecting society as a whole are important, at the same time, parties should not burden an already overtaxed judicial system. Is “chalking” really an issue of such monumental importance that perhaps the U. S. Supreme Court should weigh in? Or, as I noted in my last blog, could not public policy and societal issues at stake be equally advanced by an “out of the box” mediated solution thereby saving the resources of possibly other circuit courts and the U. S. Supreme Court? Could not a “satisfactory” result be reached through a mediated settlement?

In sum, no matter how “important” the case, mediation should always be considered.

Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE

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