In Verdun v. City of San Diego,[1] the Ninth Circuit Court of Appeals held that municipalities are not required to obtain warrants before chalking tires as part of enforcing time limits on city parking spots. In reaching its conclusion, the Court stated that even assuming the temporary dusting of chalk on a tire constitutes a Fourth Amendment search, it falls within the administrative search exception to the warrant requirement.
Background
The City of San Diego owns thousands of parking spaces that are located on City property. Pursuant to the San Diego Municipal Code, the City imposes time limits that are publicly posted and that restrict how long a vehicle may remain in a particular parking spot.
Since at least the 1970s, San Diego has used tire chalking as one method of enforcing time limits for its parking spaces. Chalking consists of a City parking officer placing an impermanent chalk mark of no more than a few inches on the tread of one tire on a parked vehicle. The parking officer must place the chalk mark on every vehicle parked in a given area of the City; officers do not single out particular vehicles for chalking. If a vehicle’s chalk mark is undisturbed after the parking limit has expired, this shows the vehicle has exceeded the time limit for the space. The parking officer may then issue a citation for violation of the City’s parking regulations. According to the District Court’s findings, the chalk mark on the tire rubs off within a few tire rotations after driving.
The purpose of tire chalking, like other parking enforcement methods used by the City, is to enhance public safety, improve traffic control, and promote commerce. According to the Court of Appeals, considerable evidence suggested that chalking was the City’s most cost-effective method of enforcing its parking regulations, and that it was more efficient and accurate than other methods.
Plaintiffs Andre Verdun and Ian Anoush Golkar each received at least one parking citation from the City after their vehicles were chalked. In May 2019, they filed a putative class action under 42 U.S.C. section 1983, alleging that tire chalking violated the Fourth Amendment. Plaintiffs asked for an injunction against chalking and monetary damages.
The District Court granted summary judgment to the City, concluding that tire chalking constitutes a Fourth Amendment search but that it is justified under the administrative search exception to the warrant requirement. Plaintiffs appealed.
Discussion
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend IV. The Ninth Circuit Court of Appeals considered whether the practice of chalking tires for parking enforcement purposes violates the Fourth Amendment.
As an initial matter, the Court questioned whether tire chalking was even a Fourth Amendment “search.” The Court noted that tire chalking had a “nearly one-hundred-year history as a parking enforcement tool” and that tire chalking had apparently not been challenged on constitutional grounds during this period. The Court of Appeals expressed skepticism of plaintiffs’ effort to “suddenly declare as violating the United States Constitution a rather innocuous parking management practice that has been commonly used without question for several generations in localities across the country.” The Court nevertheless assumed without deciding that tire chalking is a Fourth Amendment “search” and proceeded with the greater portion of its Fourth Amendment analysis.
The Ninth Circuit observed that warrantless searches are presumptively unreasonable under the Fourth Amendment, subject to certain exceptions.[2] One such exception is the “administrative search” exception.[3] The Supreme Court has explained that “[s]earch regimes where no warrant is ever required may be reasonable where ‘special needs . . . make the warrant and probable-cause requirement impracticable,’ and where the ‘primary purpose’ of the searches is ‘[d]istinguishable from the general interest in crime control.’” Id. at 420 (first quoting Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S. 602, 619 (1989), and then quoting Indianapolis v. Edmond, 531 U.S. 32, 44 (2000)).
The Court of Appeals noted that the Supreme Court has permitted various types of dragnets in which police indiscriminately stop motorists without individualized suspicion or a warrant when the stops are not used for the primary purpose of detecting general criminal wrongdoing. See generally Demarest v. City of Vallejo, 44 F.4th 1209, 1216-20 (9th Cir. 2022) (canvassing this doctrine). Two examples the Supreme Court has allowed are immigration[4] and sobriety[5] checkpoints. Another example is a roadblock with the primary purpose of verifying drivers’ licenses and vehicle registrations. See Demarest, 44 F.4th at 1220. The Ninth Circuit deemed tire chalking to be most factually and legally analogous to a motorist dragnet, and used the doctrinal formulation of the administrative search exception set forth in the vehicle dragnet cases for its analysis here.
In the checkpoint context, the Court of Appeals explained that the Ninth Circuit had reduced the Supreme Court’s guidance pertaining to the administrative search exception to a two-part analysis.[6] First, the Court would consider whether the search was “‘per se invalid’ because its ‘primary purpose’ was ‘to advance the general interest in crime control’ with respect to” the drivers of the vehicles that are chalked. Demarest, 44 F.4th at 1220 (quoting United States v. Fraire, 575 F.3d 929, 932 (9th Cir. 2009)). If the search was not per se invalid, the Circuit Court would proceed to the second step of the analysis and determine whether the search was “reasonable[],” “on the basis of the individual circumstances.” Id. (quoting Fraire, 575 F.3d at 933); see also Edmond, 531 U.S. at 47.
Regarding the first step, the Court explained here that the “primary purpose” of tire chalking was not a general interest in crime control, but to assist the City in its overall management of vehicular traffic and the use of city parking spots. See Demarest, 44 F.4th at 1220. The Court explained that chalking is part of San Diego’s broader effort to ensure the free flow of traffic and mitigate the harms of congested city streets. As an enforcement mechanism, chalking also functions as a deterrent, encouraging compliance with City parking regulations.
The Court next considered the reasonableness of the search on the basis of the individual circumstances, which required an evaluation of “[1] the gravity of the public concerns served by the [search], [2] the degree to which the [search] advances the public interest, and [3] the severity of the interference with individual liberty.” Demarest, 44 F.4th at 1222 (quoting Illinois v. Lidster, 540 U.S. 419, 422, 427 (2004)).
The Court of Appeals stated that courts have recognized the strong governmental interest in managing traffic and parking,[7] and that chalking was part of a broader program of parking and traffic management that reflected a substantial and “compelling administrative objective.”[8] The Court noted the importance of free-moving vehicular traffic and parking availability to the basic functioning of a municipality and the quality of life of its residents, businesses, and visitors.
Addressing the degree to which chalking advances the public interest, the Ninth Circuit concluded that chalking was “appropriately tailored” to that interest. Lidster, 540 U.S. at 427. The Court explained that chalking bears a tight nexus to parking management.
Finally, the Court considered the severity of the interference that chalking could have on individual liberty. The Court stated that it was “hard to imagine a ‘search’ that involves less of an intrusion on personal liberty than the temporary dusting of chalk on the outer part of a tire on a vehicle parked in a public space. Chalking involves no detention of persons or property; it does not damage property or add anything permanent to it […] If being stopped at a lawful vehicle checkpoint ‘interfere[s] only minimally with liberty of the sort the Fourth Amendment seeks to protect,’ Lidster, 540 U.S. at 427, the interference with liberty that chalking causes is infinitesimal.”
The Ninth Circuit therefore determined that, within the meaning of the Fourth Amendment, San Diego’s practice of tire chalking was reasonable. Having applied its two-part analysis, the Court concluded that the administrative search exception to the warrant requirement applied and that chalking tires did not violate the Fourth Amendment. The Court thus held that municipalities are not required to obtain warrants before chalking tires as part of enforcing time limits on city parking spots, and accordingly affirmed the District Court’s grant of summary judgment to the City.
HOW THIS AFFECTS YOUR AGENCY
As the Ninth Circuit noted, tire chalking as a practice had been both longstanding and apparently unchallenged throughout its long history. Agencies that employ or will employ chalking practices to improve traffic congestion and parking availability may have, with this case, a measure of confidence that chalking practices have established legal precedent underpinning tire chalking policies and practices.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
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[1] 2022 U.S. App. LEXIS 29803 (9th Cir. Oct. 26, 2022).
[2] City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015).
[3] The Ninth Circuit noted that this is sometimes called the “special needs” exception, and that the Supreme Court has often discussed “administrative” and “special needs” searches together. See, e.g., Patel, 576 U.S. at 420-23; Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011). See also Whalen v. McMullen, 907 F.3d 1139, 1151 (9th Cir. 2018) [“[t]here is a ‘special needs’ exception to the warrant requirement for administrative searches.”].
[4] See United States v. Martinez-Fuerte, 428 U.S. 543, 552, 562 (1976).
[5] See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990).
[6] See Demarest, 44 F.4th at 1220.
[7] See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994) (“The State also has a strong interest in . . . promoting the free flow of traffic on public streets and sidewalks . . . .”); and Pimentel v. City of Los Angeles, 974 F.3d 917, 924 (9th Cir. 2020) (recognizing that “overstay[ed] parking meters lead[] to increased congestion and impede[] traffic flow”).
[8] United States v. Bulacan, 156 F.3d 963, 968 (9th Cir. 1998) (quoting United States v. $ 124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir. 1989)).
