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.