Kopf: A Very Short Chalk Talk and A Request For Help

A meter maid, let’s call her Rita, chalks your car tire so that when she returns a couple of hours later, she will know whether you parked your car too long on a city street. On the face of it, the meter maid has violated your Fourth Amendment right to be free from an unreasonable search because the poor woman chalked your tire.

That’s according to the Sixth Circuit. Taylor v. City of Saginaw, No. 17-2126 (6th Cir. Apr. 22, 2019) (in a case of first impression and with no precedent clearly on point, reversing Judge Thomas L. Ludington’s grant of a motion to dismiss issued pursuant Fed. R. Civ. P. 12(b)(6) for failure to state a claim in a civil case brought pursuant to 42 U.S.C. § 1983 and remanding for further proceedings [code for a motion for summary judgment under Rule 56]).[i]

Because I don’t know the answers to the many profound questions that the Taylor opinion raises, I am asking the readers of Simple Justice to help me out.

Here are my questions:

  1. Will the Taylor opinion be considered the most idiotic federal appellate decision of the 21st century?
  2. If you were Judge Ludington, who got reversed, would you

(a) fire your law clerk;

(b) tell yourself you ain’t never gonna grant a 12(b)(6) motion again;

(c) hang your head in shame;

(d) get rip-roaring drunk and send the panel a photo of you mooning them;

(e) take out the reversal on the schmuck lawyers for the plaintiff who got you reversed on the theory that one’s car tire has a reasonable expectation of privacy;

(f) take out the reversal on the schmuck lawyers for the defense who failed to convince the Sixth Circuit that the Fourth Amendment does not apply to chalk;

(g) grant summary judgment on your own motion by taking judicial notice under Federal Rule of Evidence 201 of the adjudicative fact that Bibendum, commonly referred to in English as the Michelin Man, is not at all bothered by chalk; and/or

(h) go home and kiss the dog and beat your wife, husband, spouse, significant other or any prostitute you frequent?

Help me!

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] For a deep dive into the legal stuff by Professor Orin Kerr, see here. However, sadly unaddressed by the Professor is the question of whether the meter maid has qualified immunity. I am very worried for the meter maid.

56 thoughts on “Kopf: A Very Short Chalk Talk and A Request For Help

  1. shg

    Putting aside, as best I can, the smile this result brings to my withered face, I remember when I drove the Healey to Westhampton to buy some fried jelly croissants at the bakery. I parked out front and, upon my return, saw some summer hire with a chalk stick had defaced by tire.

    I considered my options, hunting him down and making him eat the chalk, stick inclusive, but decided that would be frowned upon. What right did some revenue-collection adjacent functionary have to deface the tire of my Healey? Was it not my property? Was it not my fingers that bled as I scrubbed the wire wheels to shining perfection? Was I not the person who went to the auto parts store to get Armour All tire foam? It’s not as if they gave it to me for free, you know.

    So what would I do about this decision condemning a governmental intrusion onto my beloved property with its chalkily heartless attack? You left off the option of sharing a fried jelly croissant. They’re delicious.

    Reply
    1. Richard Kopf

      SHG,

      So, if a cop shoots a radar gun at the Healey, bouncing a narrow beam at a certain frequency off that wonderful car while you are speeding through the southeast hinterlands after a journey out west, has the Healey been searched?

      But I digress. My preference is fried donuts. Croissants are, how shall I say it, too French.

      All the best.

      RGK

      PS I feel your pain on the fancy wheel cleaner and Armour All tire foam issue. Truly, I just did my 2005 Cadillac with its gold accents and landau top. See here (https://herculesandtheumpire.com/2013/07/23/mobster-machines-and-a-federal-trial-judge-who-loves-them/) at the bottom for my beauty all spiffed up and ready for the prom.

      Unfortunately, she sits in the federal parking garage all day where pigeons do to cars what chalk could never could.

      Reply
      1. SHG

        I was out driving the Healey when I ran into a “click it or ticket” roadblock. When I finally reached the front, some copper approached and took a look. Of course, there was no requirement for seatbelts in ’64, so the officer of the law gave me an eyebrow. Then he spied the box of fried jelly croissants in the passenger seat and mentioned how much she enjoyed such delicacies.

        I hit the gas, popped the clutch, and sped away. Let her try to catch me with her “laser.”

        Reply
      2. Skink

        Rich–that’s a funny-looking jalopy. Does it have the fifth wheel out back? Initials behind the backseat windows?

        Wouldn’t you rather take that fierce Deere to work?

        Reply
          1. Richard Kopf

            SHG,

            So cool.

            True story:

            The photo reminds me of the pimp who drove up to the Omaha federal courthouse in a similar but earlier model white Cadillac and got out to enter the Courthouse for his Mann Act trial. As he got out, he receive a round of applause from the onlookers. I was a law clerk then standing in the crowd in front of the building. I was so impressed both with the man and his vehicle that I decided to model him.

            Reply
        1. Richard Kopf

          Skink,

          No Continental Kit, sadly. The Deere is only for my manly man work, although I polish the plastic hood.

          All the best.

          Rich

          Reply
  2. Skink

    Early in the Hinterlands, a judge tumbles into the Hotel with questions. Because it’s early, he asks one with an obvious answer: it’s early in this century. Have faith in time.

    As to the others, you have solutions strictly, too strictly, construed. Get the clerk the hooker. Arrange for him or her to be caught. It’ll be a form of resignation.

    Grant every dismissal motion. That’ll teach the appellate court.

    Call the lawyers in. Give them their punishment: they must write the SJ motions for the opposing party without cheating. Announce that is the rule going forward in every, dumbass, bag-of-shit case brought in this division of the Western District for the Swamp.

    Get drunk with the Michelin Man. Send him to circuit, drunk, to do the mooning.

    I hope this helps.
    Your Pal,
    Skink

    Reply
    1. Richard Kopf

      Skink, my dear friend,

      You always help. For one thing, you are practical. It must come from living in a real swamp for so long and subsisting upon road kill. I also assume that your practicality comes from the fact that you only have one eye. In any event, what would I do without you?

      All the best.

      RGK

      PS By the way, you are legend.

      Reply
        1. Skink

          A creative difference. He put me in a damn kids’ book! I was distraught–so distraught that when a I got a new hat, I gave it away. Like far away from the Swamp. Like to a place like Omaha, wherever that is. I don’t know what happened after that. It’s probably in a landfill.

          An ignominious end.

          Reply
  3. DaveL

    Well, this being the first case to find tire chalking unconstitutional, of course the meter maid enjoys qualified immunity. Future meter maids will have to resort to means not previously confronted by the courts, such as tire knifing or tire shooting.

    Reply
    1. Richard Kopf

      DaveL, thank you. Your penetrating analysis of QI calms my fears but fails to alleviate the shame felt by the maid for being called out by the Sixth Circuit as violator of the Constitution.

      All the best.

      RGK

      Reply
  4. CLS

    Judge:

    Thanks for your insight on this case. I can’t say it enlightened my co-workers or their opinion of me when I yelled “WHAT THE GODDAMN” after seeing the reverse and remand on the written opinion.

    And if anyone wonders where I get material for Friday Funnies from: it’s stuff like this. The jokes practically write themselves at this point.

    Reply
  5. David Meyer-Lindenberg

    Judge,

    1) Give it some time. We Cato types have another 80 years in which to persuade the courts to listen to us.

    2a) No. Poor guy.
    2b) Why lie to yourself?
    2c) Yes, but he has 60+ years of embarrassing memories to look back on, so he was doing that anyway.
    2d) From field experiments with American beer, I can confirm that by the time you feel a little drunk, you’re too busy taking the latest in an interminable series of pisses to snap any photos.
    2e) Haters gonna hate.
    2f) Their continued existence is punishment enough.
    2g) The Michelin Man, being French, has no authority in a free country. Really, I expected a German to be especially sensitive to this.
    2h) Absolutely. If you choose to beat your spouse, get consent first and agree on a safeword or -phrase. I recommend “secure in their … effects.” Pronounce the ellipsis as best you can. Your dog’s up for anything, so kiss away.

    Reply
    1. Richard Kopf

      David,

      Thank you. Finally some answers.

      However, the implication that CATO will be functioning for 80 more years causes me to want to rip my face off.

      As for a safeword, I will use “lunacy.” It’s short and mirrors my life as a trial judge who is required to follow the directions of my puppet masters.

      My dog is NOT up for “anything.” Aside from the fact that she’s dead, she would never allow French kissing. And that brings me to being German and your penchant for identity politics.

      We Germans now love the French–the Brits have Brexit breath. I would have thought you, as postmodern German, would have been all in for a united Europe where nationality has fallen away to usher in a new world buttressed by those who were formerly Italian or Greek. But, oh no, you come to America (and possibly Canada) to deny your heritage while endeavoring to model MAGA. (Ruefully, I admit that Libertarians make my head hurt. I can’t pigeonhole them.)

      By the way, would you answer the census question that Wilbur proposes? I doubt it since Scott tells me that you have overstayed your visa. Truly, though, when it comes to Scott I don’t really trust him–short, white American males are part of the patriarchy who look for illegals under every bed and since you don’t fit under a bed you should be concerned. Besides, he drives a nasty British made Healey and we all know what that means–see above.

      All the best.

      RGK

      Reply
  6. ppnl

    Next thing you know they will require cars to be tagged with a unique number so they can be tracked. It’s the mark of the beast, be very afraid. Think it will stop with parking? Next thing you know you will be pulled over if you even drive without the mark. Crazy talk you say? Just wait.

    Reply
  7. MGould

    “Because we chalk this practice up to a regulatory exercise, rather than a community-caretaking function, we REVERSE.”

    Terrible puns in the very first paragraph of decision = grounds for ridicule and immediate reversal.

    Reply
  8. Ben

    The poor meter maid is at fault. We might drive through whatever dust and debris infests the highway but a speck of chalk is a trespass.

    She should of course have scanned the plate using a handheld ANPR device, so that the plate, time, location, vehicle colour, and bumper-sticker collection can be uploaded to a national database shared with every local PD and town council from Puerto Rico to Rhode Island, the Feds, Google, Facebook, the Chinese government, and sundry hackers.

    And now she will.

    Lesson learned. Delivering these salutary lessons is the job of the appeals courts.

    Reply
  9. CLS

    On reflection, there’s one good takeaway from this opinion and analysis of it.

    While SJ may count a good number of curmudgeons, sourpusses, and generally disagreeable people among its readership, it’s a safe bet none of us have literally made a Federal case over a damn parking ticket.

    Reply
    1. Richard Kopf

      CLS,

      Actually, knowing your activism, I am surprised you have not filed a class action using the chalk-rape theory. Such an action might just make you enough money to spay and neuter every dog and cat in your quasi-southern state. You might even be able to start a spay and neuter program for some of the deranged folks you represent. Good luck. Godspeed. Sue the bastards. That’s what the federal courts are for. (Yes, I am grammar challenged, but some people find that comforting.)

      All the best,

      RGK

      Reply
  10. C. Dove

    Judge Kopf, re: radar love – what result if the meter maid wrote down the license plate in a notebook or a laptop? An Automated License Plate Reader? That “begs the question” (sorry, couldn’t resist) what result if the 6CA been asked to decide the additional question of whether the license plate itself constitutes a taking . . . .

    Reply
  11. Howl

    (The captcha that had to be satisfied before my comment would be accepted had me choose the pictures with parking meters. Did you set that up, SHG? )

    Reply
      1. Guitardave

        I was waiting for the last line of the song…the cops part, after her ‘Scottish’ revelation…
        ….” here’s your warning, have a nice day “

        Reply
  12. Jim Tyre

    I’ve added this case to my collection of tire jurisprudence.

    Thus, to enforce the ordinance, a Menlo Park law enforcement officer must decipher the driver’s subjective intent to communicate from the positioning of tires and the chosen parking spot.

    Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998)

    Reply
  13. Richard Kopf

    Dear All,

    I leave now to drive 150 miles to naturalize a good number of new citizens. Replies to comments will be later this afternoon and evening. I worry though that my travels may cause me to receive a parking ticket. If my tire is chalked, I intend to bring an action in the Buffalo County Court. That will teach ’em a lesson.

    Reply
      1. Richard Kopf

        It was great. Almost 50 new citizens from all over. After the ceremony and my lame speech, I love personally handing the certificates to each new citizen. Almost everyone, plus family members, have a photo taken with my robed mug in the middle. Truly, the whole damn thing is heartwarming.

        All the best.

        RGK

        PS The ceremony was held in the beautiful theater arts building at the University of Nebraska at Kearney. 50 years ago in May I graduated from that place, although it was then known as Kearney State College. I can never repay the debt I owe that institution.

        Reply
  14. Noel Erinjeri

    As the only one of you numbnutses who has actually parked my car outside the Saginaw, MI courthouse and returned to find it chalk-raped, I salute this decision.

    Reply
  15. Ray

    Why worry about it? That was the 6th Circuit and you’re in the 8th.

    The 8th Circuit would never, ever, ever go that way.

    Reply
    1. Richard Kopf

      Ray,

      I worry about a lot of stuff that doesn’t matter. Hence the psch. meds.

      I can’t tell you how lucking I am to be in the 8th Circuit. When they should, which is often, they back district judges. Plus they never, and I mean never, go out of their way to take a poke at trial judges.

      All the best.

      RGK

      Reply
  16. bacchys

    You can rest easy with the assurance that the “poor woman” will face no personal consequences for violating the Fourth Amendment…

    Reply
  17. Syme

    No comments seen here about the racial overtones of the black tire, showing no weapons, suddenly being assaulted by WHITE chalk.,,,

    Reply
    1. SHG

      Was it necessary to go there? Since no one felt compelled to twist this into some SJW fantasy, you had to be the one to turn this racial, even in snark?

      Reply

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