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Mich. city asks appeals court to reconsider ruling on chalking tires for parking enforcement

A parking meter returns to zero as a car leaves its space in Pacific Grove, Calif.
A parking meter returns to zero as a car leaves its space in Pacific Grove, Calif. (Eric Risberg/AP)
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Saginaw, Mich., asked a federal appeals court on Monday to rethink its April 22 ruling that declared unconstitutional the old parking enforcement technique of marking tires with chalk, saying the case was of “exceptional importance” and had prompted cities across the Midwest to abandon the practice.

The unusual decision by a unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit said chalking tires for purposes of parking enforcement — without a warrant — violated the Fourth Amendment’s bar against unreasonable searches. It reversed a U.S. district court, which had rejected the argument and sent the case back for reconsideration.

The low-tech method of determining whether someone is parked beyond the posted time limit has been a staple of parking enforcement for decades as well as a stable source of revenue.

The decision took municipal officials by surprise.

In the immediate aftermath, cities as large as Columbus, Ohio, and as small as Athens, Tenn., put away the familiar chalk on a stick for fear of lawsuits. The 6th Circuit covers the states of Kentucky, Michigan, Ohio and Tennessee.

The reaction of the cities appeared to take the court by surprise, too. Without explanation, it issued an “amended” decision three days later stressing that perhaps Saginaw could come up with a new argument that would convince the district court that warrantless chalking was acceptable.

Saginaw chose not to wait, asking either for the panel to reconsider or for the full 6th Circuit to hear the case.

Not only was the ruling wrong, the city argued, it was “of exceptional importance” because “cities across the United States have ceased parking enforcement.”

Appeals courts often consider panel decisions “en banc,” with all the judges getting involved, particularly if one of the panel judges dissented. This case did not provoke a dissent.

Alison Taylor, who works in downtown Saginaw, brought the suit after getting her 15th ticket in a two-year span. She appealed after the lower court said there was nothing unreasonable about marking a tire with chalk.

The panel, in an opinion by Judge Bernice Bouie Donald, said the law had changed thanks to a 2012 Supreme Court decision in U.S. v. Jones, which held that prosecutors violated the rights of a suspected drug kingpin when they attached a GPS device to his jeep and monitored his movements for 28 days.

Writing for the majority, Justice Antonin Scalia said police trespassed on the vehicle in question when they attached the device, transforming the technique into a search. He did not say whether it was an unreasonable or reasonable search, however.

The 6th Circuit panel went a step further, saying the chalking search was indeed unreasonable. “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 “of a lawfully parked vehicle.”

While the ruling scared off authorities in some communities, it is also prompting consideration of more modern approaches to the overtime parking problem in areas without meters.

Police in Baraboo, Wis., are reportedly considering taking pictures of parked vehicles instead of chalking their tires.