A federal court in Ohio has ruled that chalking tires to determine how long a vehicle is parked in a spot violates a driver’s Constitutional rights against illegal search. It is a ruling that could have implications for Island police departments that use the practice to keep vehicles from overstaying their welcome in posted spots.
Monday’s decision by the 6th U.S. Circuit Court of Appeals overturned a lower court ruling. The case involves a Michigan woman who brought the suit after receiving 15 parking tickets in three years in Saginaw saying it violated her Fourth Amendment rights because it was an unreasonable search.
The 6th Circuit panel agreed. “The city commences its search on vehicles that are parked legally, without probable cause or so much as ‘individualized suspicion of wrongdoing’ — the touchstone of the reasonableness standard,” U.S. Circuit Judge Bernice Bouie Donald wrote.
The case was remanded to U.S. District Court in Michigan.
“Who knew?” Jack Fruchtman, a Constitutional law professor at Towson University, seasonal Aquinnah resident and contributor to The Times, said. “Chalking is so endemic. It’s everywhere.”
Edgartown Police Chief Bruce McNamee shared the federal appeals court ruling with counsel and was told the ruling does not affect this jurisdiction.
“It does not affect the Island, but it might,” Fruchtman said. It’s possible someone could use the 6th Circuit case to bring suit in U.S. District Court in Boston. “It’s now precedent in the 6th,” he said.
For the issue to reach the U.S. Supreme Court it would take two different circuit courts to have contrary opinions on the issue, Fruchtman said.
While the circuit opinion doesn’t apply, it’s certainly gotten the attention of Island police chiefs.
McNamee said he’ll be looking at ways his officers can enforce parking without using chalk. Plymouth, where McNamee served prior to coming to Edgartown, had an elaborate system with a private company that would alert enforcement officers when a meter was about to expire.
“It’s not about revenue enhancement here,” McNamee said. “It’s much more to encourage fair and reasonable turnover so everyone gets to enjoy downtown Edgartown.”
In Oak Bluffs, Police Chief Erik Blake said he’s gotten some joking texts and some serious inquiries about how the town will proceed after this ruling. “It has no bearing on us in New England,” he said. “Someone said you could always mark the license plate that doesn’t belong to the driver, but is that really where we’re headed? It’s an interesting debate.”
There is case law on license plates, according to Fruchtman. In 2015, the U.S. Supreme Court ruled in Walter v. Texas Division, Sons of Confederate Veterans (SCV) that license plates are government property. The SCV wanted a specialty plate, which is permissible under Texas law, but it was denied by the Texas Department of Motor Vehicles. The SCV sued and in a 5-4 decision the Supreme Court ruled that Texas had a right to reject the plate on the grounds that license plates are “government speech” and thus not subject to First Amendment protection, Fruchtman said.
“I suspect the implication here is that as of now, license plates are government property even if you place a personal stamp on it (like the name of your alma mater or favorite football team),” he said.
Tisbury Police Chief Mark Saloio said he sent a copy of a Washington Post story on the ruling to town administrator Jay Grande. Saloio has been pitching a move to handheld digital citations based off of license plate readers and this ruling could expedite that.
“I have the utmost respect for judges, but I don’t know how that constitutes a search,” Saloio said of the chalk marks. He noted that he had not yet read the ruling and planned to do so. “It’s a surprising ruling… We’ll have to look at things differently now.”
None of the systems are fool proof, Saloio said. “Sometimes you can’t judge chalk marks because the vehicle has moved,” he said.
Here’s how the chalk marks work: the traffic enforcement officer makes a mark on the tire that indicates what time the officer saw the vehicle parked in the space with a swipe in the spot where the time would appear on an analogue clock face. If the officer passes by again and the vehicle is beyond the time limit, a ticket is issued.
“If you’re longer than you should, you’re going to be cited,” Saloio said. “Businesses appreciate it as well because it helps facilitate traffic for shops.”
Saloio said he’s not seen much pushback to the chalking system here, but points out that he’s only been here as a visitor in the summer and not as Tisbury’s top cop. He said he has heard from people that they’d like enforcement of parking rules to be more consistent in town, something he’s working on.
“As basic as chalk system is, it’s the best way to have consistent information,” Saloio said.
Tisbury Police sought public comment on Facebook and, so far, people have suggested the department use cameras for parking enforcement, though some would like to see chalking tires continue and don’t see the issue.
“What is the alternative? Meters? No thank you,” Mary Beth Grande Naron wrote in response to the post.