We have to admit that when we saw the Washington Post story on a federal court ruling that chalking tires is unconstitutional, we were pretty shocked. How does putting a little mark on a tire that will wash away in a puddle violate someone’s right to be secure against unreasonable search? And knowing the practice is commonplace on the Island, we wondered what would happen here as a result of the ruling.
Laugh all you want. Call it a head-scratcher. But from a legal standpoint, the decision makes sense.
Essentially, a traffic officer marking the tire assumes that the driver won’t be moving the vehicle within the allotted time and, thus, will violate the parking regulations.
“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 in providing the 6th Circuit Court’s reasoning.
You could certainly make the argument that if you believe that someone is innocent until proven guilty, why would you start with the premise that someone is going to be guilty by chalking his or her tire?
While it’s true that the decision does not apply here because it was an appeals court decision in the 6th Circuit, which has no jurisdiction here, no one should take absolute comfort in that.
As Jack Fruchtman, a constitutional law professor and frequent contributor to The Times, told us last week, this case is now precedent in the federal courts. That means someone with a beef about tickets in Tisbury, Oak Bluffs, Edgartown, or any other town that makes a practice of chalking tires could raise the same constitutional issues and bring a federal suit. The 6th Circuit would be cited as precedent.
That doesn’t mean a U.S. District Court judge will see it the same way. And if the judge doesn’t, and it’s appealed, it doesn’t mean the 1st Circuit Court of Appeals, which covers Massachusetts, will see it the same way as the 6th Circuit. If two circuit courts disagree, the issue of chalking tires could wind up before the U.S. Supreme Court.
Island chiefs would be well-served to start looking at alternatives to this practice — one of those being the use of digital handheld license plate readers that Tisbury is considering. We don’t love this idea because it creates a database of information that goes well beyond parking for more than two hours outside of Waterside Market.
But because license plates are considered government property — this is well-established law of the land decided by the nation’s highest court — the towns seeking to enforce parking restrictions would not be violating anyone’s constitutional rights by using them.
This whole thing could be filed under the category of be careful what you wish for. That woman who brought the original case in Saginaw, Mich., was upset about getting 15 parking tickets over three years. Well, if the city had parking meters or used handheld devices, she probably still would have received that many tickets, and maybe more.
Chalking isn’t the perfect method, and it’s not foolproof, but should she really have made a federal case out of it?
We don’t think so, but we may live with the consequences.