Chalk it up to traffic management

There is an old vaudeville sketch by Billy K. Wells in which a judge orders a man to pay a $2 fine for spitting on the subway, but the man's fast-talking lawyer insists on fighting the modest fine. As the case is vigorously argued, the irritated judge imposes greater and greater sentences as the hapless man desperately pleads to his heedless lawyer, "Pay the two dollars!"

This brings us to the recently published 9th Circuit opinion in Verdun v. City of San Diego [2022 DJDAR 11116]. It is about two fellows who made a federal case over parking tickets. The punchline here is the case resulted in a 26-page majority opinion by Judge Daniel Bress, a 22-page dissent by Judge Patrick Bumatay, and may even find its way to the United States Supreme Court because it creates a circuit split with Taylor v. City of Saginaw, 11 F.4th 483, 488-489 (2021).

Though it is tempting to be derisive about a parking ticket case (too tempting for this writer, see below), this was not just any parking ticket case, this was a civil rights case (you know, constitutional violations and stuff). Nor was this just any civil rights case, but a putative class action (though the degree of "classiness" of the action is perhaps open to debate).

Now, at this point, even a discerning reader trained in the darkest realms of the legal arts may be asking themselves, "How do you make a federal civil rights class action out of a parking ticket?"

No, the answer is not, "Better Call Saul." But Saul Goodman would be proud. The argument goes like this: The Fourth Amendment generally requires warrants for searches, and the San Diego parking enforcement officials (don't call them meter maids) determined violations by marking tires with chalk (gasp!), which constitutes a warrantless search (double-gasp!), which in turn makes the parking tickets illegal (you know, fruit of the poisonous tree and all that).

The plaintiffs prayed for an injunction against chalking, and damages equal to the amounts the putative class paid in parking tickets. Seriously.

Now some astute civil rights lawyers might point out that the claim for damages would be disposed of with one sentence, noting that a civil rights claim for damages based upon an illegal search is not cognizable under 42 U.S.C. Section 1983 unless the underlying conviction (i.e. the tickets in this case) were successfully challenged on direct review. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). But they would be wrong, however, because Heck was apparently not raised by San Diego.

Other tribunals might dispose of the entire case by simply quoting the maxim of jurisprudence that, "The law disregards trifles." Cal. Civ. Code Section 3533. However, as this case makes clear, the 9th Circuit is more indulgent.

In what can only be characterized as an understatement, the majority opinion acknowledges, "there is some reason to be skeptical of plaintiffs' effort to have us 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." Despite its proclaimed skepticism, the Court "put any such skepticism completely to the side" and plunged gavel-first into the chalk bucket to "undertake a full analysis."

Well, not exactly full. The majority opinion first "assume[s] without deciding" that tire chalking constitutes a "search" under the Fourth Amendment. This assumption was triggered by recent Supreme Court cases re-affirming the traditional view that "when the government obtains information by physically intruding' on persons, house, papers, or effects, a 'search' within the original meaning of the Fourth Amendment has undoubtedly occurred." Florida v. Jardines, 569 U.S. 1, 5 (2013).

"One virtue of the Fourth Amendment's property-rights baseline is that it keeps easy cases easy." Jardines, 569 U.S. 1, 11. (Or, not, keep reading.)

However, the assumption in lieu of analysis necessarily leaves an important foundational question in the dust. Per "the habits of the country" does parking one's car on government owned property with posted time-limits create an implicit license for parking police to chalk the tires in much the same way "the knocker on the front door" of a house "is treated as an invitation or license" to enter otherwise private property "by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave?" Jardines, 569 U.S. 1, 8. In other words, is chalking tires an "unlicensed intrusion"? Id. at 7 (emphasis added).

With that question erased by assuming arguendo chalking does constitute a search, the majority opinion next acknowledges, "Warrantless searches are presumptively unreasonable under the Fourth Amendment, subject to certain exceptions. City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015)."

As to those exceptions, the majority concludes that since "tire chalking is most factually and legally analogous to a motorist dragnet" it is "appropriate to analyze this case under the doctrinal formulation of the administrative search exception set forth in the vehicle dragnet cases."

Under that doctrine as applied in the 9th Circuit, courts first 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 answer is "no," then courts must ask and answer the secondary question of "whether the search is 'reasonable, on the basis of the individual circumstances.'"

The majority had "little difficulty" concluding that the primary purpose of chalking was "management of vehicular traffic and the use of city parking spots" rather than a more general interest in crime control.

Earlier in the opinion, the majority noted that the trial court had found chalking was "intended to enhance public safety, improve traffic control, and promote commerce."

For example, "consistent enforcement increases parking space turnover and allows the City to increase the availability of parking in high-demand areas" and that "[w]hen parking spaces do not regularly turn over, drivers may engage in "cruising" - that is, circling blocks in search of parking - or may" park in unsafe and illegal places.

Moreover, "[i]ncreasing parking availability and reducing traffic congestion in turn improves commerce" because "[e]nforcing parking time limits by chalking tires improves parking turnover and encourages customers to visit, shop, and dine within a reasonable time to allow more customers to do the same."

Thus, the majority concluded "chalking is part of a broader program of parking and traffic management that reflects a substantial and compelling administrative objective."

As to the second prong inquiry as to "reasonableness" under the "individual circumstances," the majority considered "[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."

As to the gravity of concerns, the majority quipped, "It 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."

As to the effectiveness inquiry, the majority concluded "chalking is 'appropriately tailored' to that interest."

And with respect to the severity of liberty abridgment, the majority concluded, "Suffice it to say, it is 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."

Nevertheless, a dust-up ensued amongst the judiciary. Judge Bumatay's lengthy dissent proposed that while "chalking tires may not constitute the greatest affront to personal liberty," it is a "stealthy encroachment" upon the original meaning of the Fourth Amendment.

The majority was nonplussed, and "respectfully disagree[d] with their "fine dissenting colleague" whose "historical and originalist analysis" it claimed "seriously fails in its proof." The majority opinion by Judge Bress criticized the dissent of Judge Bumatay as "[m]erely citing the general concerns that animated the Fourth Amendment and some basic legal history" and concluded that such "high-level historical overview certainly does not prove" that "the entire administrative search doctrine is an affront to the original meaning of the Fourth Amendment. ..."

The majority continued, "Nor can tire chalking be made to violate the Constitution through hyperbole" or "plucking stray words" from Supreme Court opinions, and that "[t]he dissent offers no support for its grandiose suggestion that the benign practice of lightly dusting chalk on the tire of a car parked in a city space is comparable to the "Crown officials' abuse of investigative tools' that 'helped spark the American Revolution.'"

The majority also chided the dissent for relying upon dissenting opinions "which of course is not the law" and which in one instance was "misleading."

In the end, if the plaintiffs and their lawyers have enough spare change, it may be the United States Supreme Court who ultimately decides whether they should have just paid the $2 and moved on with life, instead of lawyering up to fight City Hall.