In the summer, the Westhampton Beach police would hire kids to walk up and down the main drag. They had neither gun nor Taser, but were armed with a stick with a piece of chalk at the end. The kids would mark a line on car tires to show their placement. If the line was in the same place an hour (or two, who remembers?) later, you got a ticket. It was annoying, it left a mark on your tire and if you got nailed, it would cost money.
I understood why they limited parking time. There were a lot of people trying to park and not enough parking spaces. There were businesses who wanted to make money and they couldn’t if people couldn’t park to patronize them. And by chalking tires, the town could both easily determine who parked too long and make some decent pocket change off the fairly well-to-do summer visitors. It was a win-win with one possible exception. Was it constitutional?
The Sixth Circuit says no in a case against Saginaw, Michigan.
The City of Saginaw routinely chalked car tires to enforce its parking regulations. In our prior opinion, we held that doing so is a search for Fourth Amendment purposes, and that “based on the pleadings stage of this litigation, . . . two exceptions to the warrant requirement—the ‘community caretaking’ exception, and the motor-vehicle exception—do not apply here.” Taylor v. City of Saginaw, 922 F.3d 328, 336 (6th Cir. 2019) (Taylor I). However, we left for another day whether the search could be justified by “some other exception” to the warrant requirement.
Is chalking tires a “search”? In the sense that making a mark on someone else’s property is a trespass, and that the property at issue is entirely “innocent” at the time the trespass occurs, the court held it was. Then again, it’s chalk. It washes off. De minimis non curat…nevermind.
We consider one of those other exceptions today—specifically, whether suspicionless tire
chalking constitutes a valid administrative search. Because we conclude that it does not, we
reverse the district court’s grant of summary judgment in favor of the City.
Even if the car, not to mention its driver or owner, didn’t do anything wrong at the time it was chalked, wasn’t there a legitimate administrative purpose to marking the tires to ascertain whether, a couple hours later, the car had morphed into a parking violator?
Generally, when a search is conducted for an administrative purpose and pursuant to a regulatory scheme—such as inspecting a home for compliance with a municipal housing code—
the government may justify a warrantless search by showing that it met “reasonable legislative or administrative standards.” Camara, 387 U.S. at 538. This is assessed by “balancing the need to search against the invasion which the search entails.” Id. at 536–37. But it is not a free-for-all for civil officers; among other requirements, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Patel, 576 U.S. at 420. This prerequisite removes the City’s practice from the usual administrative-search case, see id.; Liberty Coins LLC, 880 F.3d at 281–82, as there is no such opportunity (which the City does not contest).
Is the court suggesting that Saginaw should create a “precompliance review process before a neutral decisionmaker”? Of course not, because that would be impossible to do and idiotic. What the court is saying it that chalkings that are unconstitutional under the “community caretaking” function also fail under the administrative search function.
But 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. Third, the district court applied the wrong law when it relied on Brown v. Texas, 443 U.S. 47, 51 (1979), to condone defendants’ tire-chalking practice, stating “[t]he City’s use of chalk [was] reasonable because it is in the public interest [to enforce parking regulations] and the ‘severity of the interference with
individual liberty’ is minimal.” Brown is not an administrative-search case (or even a search
case at all), and the balancing test it prescribes has no application to these facts.
This is a rather extraordinary parsing of the nuances of Fourth Amendment law, and an outcome that most of us applaud. After all, we don’t get a lot of decisions condemning a city for its routine practices that can’t be constitutionally justified. And lest anyone feel badly for the parking person whose butt was on the line for unconstitutional chalking, the court held it was not yet clearly established law and granted qualified immunity.
So big win? Sure. Totally. Absolutely. Well, maybe not so much. It’s remarkably rare to have a circuit court rule that government action violates the Fourth Amendment, and no criminal defense lawyer doesn’t appreciate these moments. And if you’ve ever had your car tire chalked, especially if its a, say, a 1964 Austin Healey rather than a Dodge minivan, your visceral reaction to such defacement is to scream “vandal” at the kid holding the chalk stick.
But at the same time, at least the town is trying to be legit in its application of the parking limit rather than just hand out tickets when some parking enforcement officer decides that you’ve been there long enough. Sure, the chalk in annoying, but it does come off, whether by a few hand motions or in the next rain. And to be fair, parking spaces do need to turn over so others can enjoy the fried jelly croissants at the Beach Bakery.
Without chalking tires, will Saginaw stop enforcing its parking laws? Probably not, as they serve a community purpose and bring in some extra cash. But what they will do is rely on the less than objective determinations of their officers when handing out tickets. Granted, even with chalking there can be fudging of the timing details, but the fact that they chalked at all suggests that they were doing what they could to perform this function accurately.
So the anti-chalkers win. The Fourth Amendment wins. And this is all good, even if, dare I say it, a de minimis intrusion. But whether this is really for the better isn’t quite so clear.