By: Tim Black
Any avid reader of the LauraLaw Blog knows just how much I love the underdog. Whether you’re nabbed by a red light camera or inundated with parking tickets, I feel your pain; and if you fight like hell to get out of those tickets, I stand and applaud your efforts. I am a true believer in fighting parking tickets and have long championed those who take on the system. One of my parking ticket fighting heroes has been local attorney Todd Kooperman, about whom I wrote in late 2017. (Update: On March 11, 2019, the Justice Walker of the First District Appellate Court of Illinois delivered a blow to the City of Chicago in the Todd Kooperman case, overturning the decision of the City’s Department of Administrative Hearings and requiring the City “to post signs far enough in advance of ticketing to give reasonable notice to persons who try to comply with the ordinance.” Congratulations Mr. Kooperman – you are a hero.) Joining Mr. Kooperman on the Mt. Rushmore of parking ticket pugilists is Saginaw, Michigan hero Alison Taylor.
On 15 separate occasions from 2014 to 2017, Ms. Taylor parked her car on the streets of Saginaw and returned to find a parking ticket. Pursuant to Saginaw Police practice – a practice common in many municipalities – the Saginaw Police parking enforcement officer would patrol the parking area and mark a small line of chalk on the tire of each parked car. When she returned after the permitted time for parking, if the chalk mark had not moved, she would issue a parking ticket. That practice is known as “chalking,” and I’m sure you are all too familiar with its existence; I know I am. On the 15th ticket, Alison Taylor filed a §1983 lawsuit against the City of Saginaw, et al. in the United States District Court for the Eastern District of Michigan alleging that the practice of “chalking” violated her Fourth Amendment right to be free from unreasonable search. As I’m sure you were expecting to hear, the District Court tossed the case on the City’s motion to dismiss under the theory that “chalking” is a Fourth Amendment search, but it is reasonable under the community caretaker exception. In other words, even though marking a chalk line on your tire is considered a search of your vehicle, the police don’t need a warrant because it fulfills their duty as caretakers of the community.
The Sixth Circuit Court of Appeals was having none of it. Unable to resist a choice “chalk” pun, Circuit Judge Bernice Bouie Donald drafted a beautiful Opinion reversing the trial court and parking this case right back in the District Court. In essence, she found that “chalking” constitutes a search under the Fourth Amendment because it involves the police trespassing upon a constitutionally protected area (your car) to obtain information (whether you’ve moved your car). Unaccepting of the City’s argument that the search was reasonable under community caretaker exception, Judge Donald found that the City failed to establish that the search had any connection to public safety and its sole purpose was to gather evidence used to generate revenue. The search is unreasonable. The case was reversed and remanded. Alison Taylor is a hero.
The Court was careful to clarify that the opinion does not say the community caretaker exception could never apply, and it does not say that there are no other exceptions under which “chalking” could fall, only that based on the arguments put forth by the City of Saginaw on the facts in this case, the search was unreasonable. We will keep our eyes peeled for updates to this case, and I am always looking for parking ticket warriors out there fighting the good fight. So, stay tuned to LauraLaw’s blog and as always, if you should find yourself under investigation or under arrest, contact us and one of our skilled attorneys will be happy to discuss your case.
**UPDATE (05.01.2019): Two days after publishing the original Opinion, the Sixth Circuit Court of Appeals took the very rare action of issuing an Amended Opinion to clarify its ruling. The Amended Opinion is exactly the same as its original, except for the addition of the following paragraph to the Opinion’s conclusion:
“Taking the allegations in Taylor’s complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement—the “community caretaking” exception and the motor-vehicle exception—do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.”
Basically, the Sixth Circuit is pumping the brakes on the national reaction to the ruling. If you read a lot of legal opinions, you know that judges often go to great lengths to apply their ruling to the specific facts put in front of the court, and not to extend their ruling to all other possible iterations – which makes sense. Judges are not fortune tellers. Practically speaking, this clarification says that the arguments put forth by the Government, in this case, are not viable exceptions to the Fourth Amendment warrant requirement, but there might be other exceptions that were not argued here. Or there might not. I don’t expect this is the last we hear about “chalking,” so stay tuned and keep fighting your parking tickets.