Municipalities in California that rely on the practice of chalking tires to enforce parking restrictions can take solace in a recent Ninth Circuit decision that affirms the constitutionality of the practice and parts ways with Sixth Circuit precedent that had previously raised constitutional questions about chalking.
Background – a Series of Appellate Decisions Puts the Practice of Chalking into Constitutional Doubt
The Sixth Circuit Holds That Chalking is a “Search” Implicating the Fourth Amendment
Our firm first analyzed the constitutionality of chalking when the Sixth Circuit issued a decision casting doubt on the practice in 2019. In Taylor v City of Saginaw (“Taylor I”), the Sixth Circuit reinstated a challenge to the practice that had been dismissed on the pleadings after holding that chalking amounts to a physical “trespass upon a constitutionally protected area…to obtain information” and thus constitutes a search under the Fourth Amendment. The Sixth Circuit rejected the city’s reliance on two exceptions to the warrant requirement—the community caretaking and automobile exceptions—but left open on remand whether other exceptions might apply later in the case.
We criticized Taylor I on the grounds that chalking should not be considered a search under the Fourth Amendment but argued that even if chalking were a search, it should be upheld as reasonable under the administrative search/special needs exception to the Fourth Amendment. Indeed, district courts in the Ninth Circuit and the Sixth Circuit (including the district court in the Taylor I case on remand) have since agreed with this approach at summary judgment.
The Sixth Circuit Closes the Door on the Administrative Search/Special Needs Exception in Taylor II
In 2021, however, the Sixth Circuit closed the door on the administrative search/special needs exception in Taylor II, further casting the practice of chalking into constitutional doubt. On remand from Taylor I, the district court had entered summary judgment in the city’s favor, upholding its practice of chalking under the administrative search exception to the warrant requirement. The Sixth Circuit, however, reversed again, explaining that “tire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.”
The Ninth Circuit Upholds Chalking Practice Under the Special Needs Exception to the Warrant Requirement in Verdun v. City of San Diego
Just a month ago, the Ninth Circuit definitively weighed in on the constitutionality of chalking in Verdun v. City of San Diego and parted ways with the Sixth Circuit’s Taylor II decision. In Verdun, plaintiffs argued that tire chalking violated the Fourth Amendment and that a warrant was required before the City of San Diego could chalk tires as a parking enforcement method. The district court granted summary judgment in favor of San Diego on the grounds that although tire chalking constitutes a Fourth Amendment search, the practice was justified under the administrative search/special needs exception to the warrant requirement of the Fourth Amendment.
The Ninth Circuit affirmed. In its ruling, the Ninth Circuit refused to definitively decide whether or not chalking constituted a search under the Fourth Amendment but assumed that it did for the sake of argument in the Opinion. The Ninth Circuit then considered whether the practice of chalking fell into the special needs exception to the warrant requirement. In doing so, the court departed from the Sixth Circuit’s ruling in Taylor II that the special needs exception does not justify chalking tires.
In considering whether the special needs exception applied, the Ninth Circuit applied a “two-part analysis” that it has developed to apply the Supreme Court’s guidance in the context of a motorist dragnet/checkpoint.
First, courts must ask “whether the search is per se invalid because its primary purpose is to advance the general interest in crime control with respect to the drivers of the vehicles that are chalked.” “If the search is not per se invalid, [courts] will proceed to the second step of the analysis and determine whether the search is reasonable, on the basis of the individual circumstances.” In applying the second step, courts evaluate the gravity of the public concerns served by the search, the degree to which the search advances the public interest, and the severity of the interference with individual liberty.
Applying this test to the practice of chalking, the Ninth Circuit concluded that the practice did not violate the Fourth Amendment:
- First, the court held that the primary purpose of tire chalking is not an interest in crime control but to assist the City in managing traffic and parking.
- Second, the court held tire chalking to be reasonable given the gravity of public concerns served by chalking, the degree to which chalking advances the public interest, and the severity of chalking’s interference with individual liberty.
- The court recognized the city’s strong governmental interest in promoting the free flow of traffic along with safety and environmental concerns. The court observed that “[i]t does not take an advanced degree in urban planning to appreciate the significance 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.”
- The court next explained that tire chalking is appropriately tailored to the City’s interest in managing traffic and has no “‘spillover’ use outside its stated purpose.”
- Turning to the severity of the interference that chalking may have on individual liberty, the court noted that tire chalking has only a minimal interference with an individual’s liberty or privacy interest because it involves no detention of persons or property, does not damage property or add anything permanent to it since the chalk rubs off after a few tire rotations, and the search does not create “substantial anxiety” as some searches may.
- Taken together, the court explained, the privacy concerns do not outweigh the governmental interest in tire chalking.
In sum, the Ninth Circuit concluded that the practice of chalking is permissible under the Fourth Amendment because even if tire chalking is considered a search, it is not used for general crime control purposes, has a minimal effect on personal liberty and promotes numerous government interests, and is reasonable in scope and manner of execution.
The Ninth Circuit decision parts ways with the Sixth Circuit’s reasoning in Taylor II in large part due to the Sixth Cricut’s reliance on other parking enforcement methods in its Fourth Amendment analysis. Taylor II reasoned that the special needs exception cannot apply to tire chalking because cities have enforced parking regulations for centuries using methods devoid of Fourth Amendment challenges. In other words, since parking enforcement can be achieved without chalking, the Sixth Circuit ruled there is no special need for chalking and thus, the special needs exception cannot apply. The Ninth Circuit, however, did not find this reasoning persuasive and held that “the relevant question is not whether there are other parking enforcement methods that would constitute Fourth Amendment searches; it is whether tire chalking fts within the administrative search exception under the governing principles and precedents.” Under this approach, the Ninth Circuit’s view looked at tire chalking in a vacuum, and held it fits squarely within the special needs’ exception.
Justice Bumatay issued a lengthy dissent in Verdun. The dissent, taking a more historical and originalist approach, argues that tire chalking is undoubtably a search under the Fourth Amendment. The dissent reasoned that since tire chalking is a physical intrusion (the marking of a tire) of a protected area (privately owned vehicle) for the purpose of obtaining information (how long the car has been parked) that tire chalking constitutes a search. Further, a search requires individualized suspicion, and a car simply parked on the side of the road cannot warrant suspicion of wrongdoing as to justify a search. He argued that the City’s interest in traffic control, while valid, cannot justify a suspicionless search under the Fourth Amendment.
The Ninth Circuit’s Verdun decision provides much needed clarity regarding the constitutionality of the practice of chalking for California municipalities and serves as a useful model for local public agencies facing similar lawsuits over the practice. Nevertheless, local public agencies should stay tuned since the plaintiffs may seek review of the decision from the U.S. Supreme Court given the apparent conflict with the Sixth Circuit’s decision and Judge Bumatay’s vociferous dissent. Should you have any questions about the practice of chalking or the development of the law in this area, please reach out to us.
 (See Teresa Stricker & Ryan McGinley-Stempel, “To Chalk or Not to Chalk: How the Sixth Circuit’s Recent Decision in Taylor v. City of Saginaw Impacts California Municipalities,” https://rennepubliclawgroup.com/chalking-municipalities-2019/.)
 (Taylor v. City of Saginaw (6th Cir. 2019) 922 F.3d 328 (“Taylor I”).)
 (Taylor I, 922 F.3d at p. 332.)
 (See Taylor I, 922 F.3d at pp. 335-336.)
 (See Teresa Stricker & Ryan McGinley-Stempel, “To Chalk or Not to Chalk: How the Sixth Circuit’s Recent Decision in Taylor v. City of Saginaw Impacts California Municipalities,” https://rennepubliclawgroup.com/chalking-municipalities-2019/; see also Ryan McGinley-Stempel, “Ninth Circuit Decision Suggests Chalking Is a Search, Leaves Municipalities a Path to Defend the Practice,” https://rennepubliclawgroup.com/chalking-search-ninth-circuit/.)
 (See Ryan McGinley-Stempel, “Ninth Circuit Decision Suggests Chalking Is a Search, Leaves Municipalities a Path to Defend the Practice,” https://rennepubliclawgroup.com/chalking-search-ninth-circuit/.)
 (Taylor v. City of Saginaw (9th Cir. 2021) 11 F.5th 483 (“Taylor II”).)
 (Taylor II, 11 F.5th at p. 486.)
 (Taylor II, 11 F.5th at p. 489.)
 (Verdun v. City of San Diego (9th Cir. 2022) 51 F.4th 1033.)
 (Verdun v. City of San Diego (S.D. Cal. 2021) 549 F.Supp.3d 1192, 1201, aff’d (9th Cir. 2022) 51 F.4th 1033.)
 (Verdun, 51 F.4th at p. 1037.)
 (Verdun, 51 F.4th at p. 1041.)
 (Verdun, 51 F.4th at p. 1041 [quotation marks omitted].)
 (Verdun, 51 F.4th at pp. 1041-1042.)
 (Verdun, 51 F.4th at p. 1043.)
 (Verdun, 51 F.4th at pp. 1041-1043.)
 (Verdun, 51 F.4th at p. 1043.)
 (Verdun, 51 F.4th at p. 1044.)
 (Verdun, 51 F.4th at p. 1044-1045.)
 (Verdun, 51 F.4th at pp. 1044-1045.)
 (Taylor II, 11 F.5th at p. 489.)
 (Taylor II, 11 F.5th at p. 489.)
 (Verdun, 51 F.4th at pp. 1048-1050.)
 (Verdun, 51 F.4th at p. 1050.)
 (Verdun, 51 F.4th at p. 1051.)
 (Verdun, 51 F.4th at pp. 1058-1059.)
 (See U.S. Sup. Ct. R. 10.)