That parking officer who swipes a chalk mark on your tire to keep track of how long you've been parked is violating the Constitution, a federal appeals court panel found Monday.
A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati reinstated a 2017 case brought by Alison Taylor, who was issued 15 parking tickets in three years in Saginaw, Michigan, by the same parking enforcement officer, who's described in the suit as the city's "most prolific issuer of parking tickets."
Taylor argued that marking tires with chalk constituted an unreasonable search under the Fourth Amendment to the Constitution. But a U.S. district judge in Michigan dismissed the suit in 2017, writing that even if chalking a tire is a search, it's a reasonable one, because a piece of chalk isn't an "information-gathering device" that could violate Taylor's privacy, like a GPS tracker, for example.
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The appeals panel Monday agreed that chalking a tire is a search. But the judges disagreed that it was a reasonable search.
U.S. Circuit Judge Bernice Bouie Donald wrote that when drivers pull into parking spaces, "the city commences its search on vehicles that are parked legally, without probable cause or even so much as 'individualized suspicion of wrongdoing' — the touchstone of the reasonableness standard."
Moreover, overstaying your welcome at a parking space doesn't cause "injury or ongoing harm to the community," she wrote, meaning the city is wrong to argue that parking enforcement is part of its "community caretaking" responsibility, potentially justifying a search without a warrant.
In fact, she wrote, "there has been a trespass in this case because the City made intentional physical contact with Taylor's vehicle."
While Saginaw is entitled to regulate public parking, "the manner in which it chooses to do so is not without constitutional limitation," Donald wrote.
Orin Kerr, a law professor at the University of Southern California, tweeted one suggestion: Take a picture of the car or its tires without "trespassing" on it with chalk.
Monday's ruling sends the lawsuit back to U.S. District Court in Bay City, Michigan.