Chalk One Up For The Fourth Amendment: Court Rules Parking Enforcement Officers Are Trespassing On Tires

In a surprising decision, the United States Court of Appeals for the Sixth Circuit ruled that the little chalk mark placed on your tire by parking enforcement officers is a violation of your constitutional rights. The Sixth Circuit describes Alison Taylor as a “frequent recipient of parking tickets” who challenged the practice as a warrantless trespass by the government and won under an extension of the Supreme Court’s decision in United States v. Jones, 565 U.S. 400 (2012), a case barring the placement of GPS devices on cars. Whether the Supreme Court would agree with the extension (or consider this a de minimus trespass) is a good question.

Taylor had received her 15th such ticket in just a few years when she decided to sue parking enforcement officer Tabitha Hoskins as a “prolific chalker.” Writing for a three-judge panel, Judge Bernice Donald found that the chalking was the mark of unconstitutional intrusion. She first noted that there is no de minimus trespass, just trespass:

“In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area. Though Jones does not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is “an act which brings [about] intended physical contact with a chattel in the possession of another.” Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, “[a]n actor may . . . commit a trespass by so acting upon achattel as intentionally to cause it to come in contact with some other object.” Id. Adopting this definition, there has been a trespass in this case because the City made intentional physicalcontact with Taylor’s vehicle. As the district court properly found, this physical intrusion,regardless of how slight, constitutes common-law trespass. This is so, even though “no damage [is done] at all.” Jones, 565 U.S. at 405 (quoting Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765)).”

Donald then rejects that there is a reasonable basis for the practice:

“The City points to the importance of “maintaining efficient, orderly parking.” While the City is entitled to maintain efficient, orderly parking, the manner in which it chooses to do so is not without constitutional limitation. As the Supreme Court explains, “the [Fourth] Amendmentdoes not place an unduly oppressive weight on [the government] but merely . . . an orderlyprocedure. . . .” Jeffers, 342 U.S. at 51 (citation omitted).The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.”

This could prove a close vote in the Supreme Court, but, in the interim, parking enforcement may have to go digital with photographic records for cars that show the time of the picture in the frame. Frankly, this would be a more reliable method of enforcement since the chalk mark necessarily results in some imprecision in when the actual mark was placed on the tire.

35 thoughts on “Chalk One Up For The Fourth Amendment: Court Rules Parking Enforcement Officers Are Trespassing On Tires”

  1. A corollary might be the ‘urging’ of a form of groping to those of both ‘of age’ and ‘underage’ status. I refer you to the hit pop song of the 40’s or thereabouts “Huggin’ and a Chalkin’ including the possible long term PTSD that has gone untreated by the those victimized and who paid the Oval’s office supply bill 1992-2000?.

    Huggin’ and Chalkin’ Lyrics
    https://www.lyrics.com/lyric/2911290/Hoagy…/Huggin%27+and+Chalkin%27

    Lyrics to Huggin’ and Chalkin’ by Hoagy Carmichael from the Ole Buttermilk Sky album – including song video, artist biography, translations and more! … have to take a piece of chalk in your hand And hug a way and chalk a mark To see where…
    Missing: first ‎| ‎Must include: ‎first
    Hugging and A Chalking? — who did it? – Google Groups
    https://groups.google.com/d/topic/rec.music.dementia/1WJ9y37QUjs

    its “hook” lines ‘A Hugging and A Chalking’ about a guy kissing a really …. The song was written by Dixieland banjoist/vocalist Clancy Hayes, but the first …

  2. Chalk that one up to a long history of use and ask this question. Since it goes back to my long ago youth just what is the Statute of Limitations since the days of my first drivers license some 60 plus years ago.

  3. NSA Recommends Ending Metadata Surveillance Program Exposed by Edward Snowden

    HEADLINE APR 26, 2019

    https://www.democracynow.org/2019/4/26/headlines/nsa_recommends_ending_metadata_surveillance_program_exposed_by_edward_snowden

    The National Security Agency has quietly recommended that the Trump administration abandon a surveillance program collecting metadata on the phone calls and text messages of hundreds of millions of Americans. The program was launched secretly under President George W. Bush after 9/11 without the approval of federal courts. The secret program’s existence was revealed in 2013 by NSA whistleblower Edward Snowden. For years the NSA defended the surveillance as an essential tool to fight terrorism, but the NSA now says the surveillance program is no longer worth the effort needed to maintain it. Snowden responded on Twitter by saying, “First they laugh at you, then they fight you, then… they admit you were right all along and maybe shouldn’t have been violating everyone’s rights in the first place?”

    1. “It is now undeniable that spies worldwide exploit the credulity of journalists to conceal their violation of human rights. This century will teach a harsh lesson: While terrorism is no existential threat to democracy, our political deference to intelligence agencies might be.” -Edward Snowden

      https://twitter.com/Snowden/status/1121470560318496768

      There’s another program that still hasn’t come to light.

  4. Chalk One Up For The Fourth Amendment: Court Rules Parking Enforcement Officers Are Trespassing On Tires

    Wow, thank goodness, our tires are safe from being chalked by meter maids.

    What good is The Fourth Amendment if the shield it supposedly provides is only sufficient to stop the chalking of tires but not stop no-knock paramilitary raids conducted by adrenaline junkies, cowboys and abject novices posing as SWAT operators in search for evidence of a possible crime?

  5. I have news for you. It has already gone digital. There are cameras everywhere. And the police squad cars have passive cameras that are tracking license plates and ID’ing massively the traffic passing by. These data sets are increasingly integrated and accessible with information tools such as Palantir or whatever they are using to data mine these days.

    Courts take the cases as they find them but the bad stuff continues mostly unseen and uncomplained of by everyone besides “cranks” and “conspiracy theorists”

    Also today NSA says they have discontinued mass harvesting phone metadata. Uh yeah sure we believe you guys. Not

  6. Was her car on public land? Does this mean that government cameras that take our images and “mark” us and our cars in public have to be dismantled?

  7. Breathing must be criminalized under penalty of death.
    ________________________

    The Worst Climate Pollution Is Carbon Dioxide
    CO2 outranks soot, methane and even hydrofluorocarbons in terms of long-term global warming. Cutting emissions of such “short-lived climate pollutants,” or SLCPs, will not have much impact on long-term climate change, finds a new study published yesterday in the Proceedings of the National Academy of the Sciences. The study reaffirms strongly that, as far as climate change goes, the gas that truly matters is carbon dioxide. Unlike its shorter-lived cousins, CO2 sticks around in the atmosphere for decades to centuries, wreaking climate havoc. “It has become very clear that if you want to stabilize warming at any level, you have to start talking about phasing out CO2,” said Joeri Rogelj, a research scholar at the International Institute for Applied Systems Analysis and lead author of the study. “Reducing other climate pollution can help in different ways and for different things, but in climate stabilization terms, it’s noise on the fact that…

    you have to phase out CO2.”

    1. How can you type such out of context, misinformative, intellectually dishonest drivel?

      Seriously.

      Turn off the Fox News.

      You embarrass yourself and Jonathan Turley’s blog by extension.

      Pro tip: ruminate on context and perspective, read some actual science, and think about future generation and their quality of life. That’s what Jesus would probably do, by the way.

      1. Thanks for reading, comrade.

        You’d better run along now and report to your local “political officer,” whatever her name is.

        Emasculation can be a real problem, can’t it.

        1. I guess they’re providing you with plenty of Russian Standard™ vodka at the troll farm, George.

          or you’re just bitter about not quite having the intellectual capacity to understand climate science.

          Either way, you embarrass yourself.

          do you resent women too?

          1. God has the power to manipulate worlds…and you do too!

            Good to know.

            The earth started with no climate and, in fact, no earth. It’s climate and every other facet have been changing ever since. I suspect the climate will change no matter what freaks like you do or caterwaul about. Normal inhabitants of this planet have been coping with rising sea levels, hurricanes, tornadoes, earthquakes, pole shifts, asteroid impacts, etc., for their entire existence. Freaks like you have been watching the sky fall. Let me check. Yep. It’s still up there. What you engage in is the furtherance of communist/collectivist ideology in disguise. You’re an insidious charlatan; a fraud and hoaxer in search of personal power and other people’s money by presenting the “enemy” of global-warming-cum-climate-change (what’ll your rallying cry be next month?) to engender a “new and improved” communist ideology. Your target audience consists of the lower orders who will blindly follow for promises made (“free stuff”) as you employ the semantic “science” while there is no there there.

            It gets weird!
            _____

            How might one “resent” women? Women have a natural or God-given function. I could be wrong. Women have babies, right…lots of babies, right, babies sufficient to grow, defend and perpetuate the nation, right? Women bear children and nurture the sufficiently numerous children they have; a long time; until the age of majority, right? Women make the nation by making the nation’s population…or a nation’s population and the nation disappear. Understanding that America’s fertility rate is in a “death spiral” and that America’s population is vanishing and a replacement population of foreign citizens is being imported, it would seem apropos for women to do just that; have babies…lots of babies. Conversely, your Feminazi freak/friends cut babies out of the womb. Why do I have an innate aversion to that concept…and freaks like you don’t? Interestingly the people who hate pregnancy, childbirth and long-term, effective nurturing the most are the radical activist Feminazis. They are the true misogynists and they are undeniably misandrists.

            As far as the vote is concerned, in a republic of democracy as created by the Greeks perpetuated by the Romans, establsihed by the American Founders and perverted by contemporary communists, it was the law, essential and imperative that the vote be restricted with citizens meeting criteria and being “entitled” to vote. Throughout history, democracy has been distinctly not one man, one vote democrazy. Merriam Webster defines a republic as “…a government in which supreme power resides in a body of citizens entitled to vote.” The greatest form of governance in the history of mankind was created by the men who wrote the U.S. Constitution. There was no need for the participation of women in that process and there is no need for the participation of women in the furtherance of the American thesis and that republic now. Men did not need women to go to the moon or get back. Am I right? The 19th amendment is a beguiling artifice of absolutely no rationale which only befuddles and confounds through the introduction of the inseparable, superfluous and extraneous cacophony of hysteria and incoherence. In a representative republic, the first step of representation is that of men representing their wives and children. If wives should and/or must vote, the inexorable corollary is that children and pets should vote also.

            It gets weird?
            __________

            If one listens to weirdos.

  8. Good points, Kevin F. and Jean L.
    I didn’t consider that….usually, I’m only at one “metered place”, if that, when running errands, etc.
    But I could see where it could be a problem for those going to different metered spots.

  9. And in Massachusetts

    For first time, state’s highest court extends right to privacy to cellphone location data

    By John R. Ellement and Danny McDonald
    GLOBE STAFF APRIL 23, 2019

    https://www.bostonglobe.com/metro/2019/04/23/sjc-ruling-protects-cell-phone-location-data-but-upholds-police-powers-case-emergency/Rzr1SdSdD39Su4HKco9eSN/story.html

    The state’s highest court for the first time on Tuesday extended the right to privacy to encompass cellphone location data, but preserved the right of law enforcement to “ping” cellphones in emergencies, such as a search for an armed murder suspect.

    In a unanimous decision, the Supreme Judicial Court held that state constitutional protections against unwarranted and excessive government intrusion into personal lives must keep pace with technological innovations.

    (Article continues)

    In a statement Tuesday, Berkshire District Attorney Andrea Harrington called the ruling “a sound and proper balancing of individual privacy interests and public safety.”

    “The exigent circumstances exception that the court allowed for in this particular type of search will be an effective tool in protecting the public from ongoing dangers, while ensuring individuals’ constitutionally protected expectation of privacy,” she said.

    Cape and Islands District Attorney Michael O’Keefe said he hoped the ruling will change little in terms of law enforcement’s approach to investigations. He said the ruling “leaves room for the police to do their job,” and said police are “generally very, very careful that they are not intruding on people’s privacy rights.”

    “Massachusetts has a particular zealous reputation for guarding individual privacy rights,” he said during a phone interview Tuesday.

    1. Massachusetts Court Blocks Warrantless Access to Real-Time Cell Phone Location Data

      BY JENNIFER LYNCHAPRIL 24, 2019

      There’s heartening news for our location privacy out of Massachusetts this week. The Supreme Judicial Court, the state’s highest court, ruled that police access to real-time cell phone location data—whether it comes from a phone company or from technology like a cell site simulator—intrudes on a person’s reasonable expectation of privacy. Absent exigent circumstances, the court held, the police must get a warrant.

      https://www.eff.org/deeplinks/2019/04/massachusetts-court-blocks-warrantless-access-real-time-cell-phone-location-data

    1. mespo….the real problem is that it takes up precious time that could be used corralling citizens who pull the tags off of their pillows and mattresses!
      🤠

  10. To say that we are an overly litigious society would be an understatement. We live in a society that makes laws with an minority controlled legislature which does not represent the concurrence of a majority of the people and then we rely on the court system to decide if a law is truly a law or if the court itself can strike it down or force it to be amended to the satisfaction of another minority faction of our society. Law and the courts are being trivialized to the point of absurdity. We consider ourselves a society of laws, which has no laws because of the trivial nature of even the most important and necessary laws which govern our society. We can’t function because we can’t understand the law today, and we have no idea what the law will be tomorrow!

    Laws today are so voluminous they cannot be understood, try if you might to understand tax law, and they have been rendered frivolous as a result! This is what anarchy looks like! We keep trying to pretend that we are including more people in a more democratic society but as we move to a more direct democracy, which is expected to override the decisions made in what we call a Republican form of Government, the more chaotic our ability to govern becomes, and the closer to anarchy and total collapse of our society we approach.

    Law making should tend towards order, not chaos, and as the systems that are being governed become more routine, the necessity for additional law making is minimized to the point that only occasional adjustments need to be made to cover unexpected changes or occurrences, rendering law making moot as a responsibility of our governing assemblies.

    Compliance with laws made by a majority of all the people is the cost of sovereignty paid to live in a society! But along with the cost to your sovereignty you must gain the right of participation in forming those laws. Compliance and participation must be coupled in any well functioning society, and a republican form of Government is the only solution which provides this balance! Sorry, Party Governing does not qualify as a republican form of Government, it lacks the necessary components of Equal Representation and Equal Suffrage of everyone in the society!

  11. According to this flawed reasoning,if I tap someone on his/her shoulder to get by them on an escalator,I have committed an assault.If there ever has been a case where “de minimus curat lex”should apply,it is this one.Surely the courts have more pressing issues with which to occupy themselves.

  12. From what I’ve read about this Court decision, it seems like a foolish decision over a trivial issue.
    A more important series of SCOTUS decisions in the past generation involving “reduced expectations of privacy”, pretext traffic stops, warrentless seach and seizure, etc. have eroded 4th Amendment protections.
    Placing chalk marks on a tire by a meter maid of a cop should be the least of concerns re the 4th Amendment.

    1. “Meter maid”? Geez dude, nothing like dating yourself, hahaha. And parking enforcement officers are not cops. They are not sworn officers and do not possess police powers.

      1. A parking enforcement officer is exercising a specific case of the police power. And I’d be surprised if parking enforcement officers didn’t have to swear an oath of office of some kind, just as most other civil servants do (I could be dating myself there – I worked for the State of Louisiana for years, both as a sworn peace officer and various non-police positions and swore allegiance to the state of Louisiana and to uphold its laws on hiring, each time).

    2. Placing chalk marks on a tire by a meter maid of a cop should be the least of concerns re the 4th Amendment.

      Sorry Tom, it may seem trivial to you…but permitting minor infringement of rights today means we’ll have to fight major infringements tomorrow. The DoI is a case study for this.

    1. A ticket includes the date and time it was written, and the PEO has to sign it. The problem with chalk marks is that you don’t know when they were applied. The PEO is under pressure to meet a ticket quota, so he/she drives around swiping chalk marks on tires, but the vehicle owner may end up with a ticket based on a chalk mark applied the day before. Or if I get a chalk mark in the morning, move my car and park down the block or across the street, I may still get a ticket based on a chalk mark applied at a different location. I used to have to get the hose out every night and wash chalk marks off my tires when I worked in a revenue hungry city.

      1. Which doesn’t go to the case in question, although it’s a good point – chalk marks are at best indirect indications of having over-parked and could even cause an undeserved ticket if (say) you get a chalk mark, but drive off to another part of town entirely and an incautious parking officer mistakes that chalk mark for one he or she placed and writes you up unjustly.

        The case, however, goes to warrantless search of a vehicle for a plainly visible mark. In police academy, we were told we didn’t need warrants for evidence in plain sight, unconcealed by anything. Many convictions for violation of “open container” laws would have failed if it weren’t that the evidence was in plain view despite being contained within someone’s car – an extension of their domicile in most places.

  13. Great news!

    In Colorado, cops put an orange sticker on cars to warn them that they will be towed after a few days.

    The stickers are glued to a side window and almost impossible to entirely remove. That constitutes “nonjudicial punishment” and is very clearly trespass according according to this case.

    I went rounds with a cop who did that to my car and got him to apologize, but I still spent a couple of hours cleaning the window.

    Next time, all I need is $50K for a lawyer and I can stop the practice.

  14. We need to attach Trump bumper stickers on all cop cars in that town. Whether they want them on there or not. How can they complain when they are chalking up tires?

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