Author: Jim Chapman
In a prior opinion in this same case, the United States Court of Appeals for the Sixth Circuit held that the city of Saginaw, Michigan’s (“the City”) practice of chalking a parked car’s tires in order to enforce parking regulations constituted a search for purposes of the Fourth Amendment. Taylor v. City of Saginaw, 92 F.3d 328, 336 (6th Cir. 2019)(Taylor I). The Sixth Circuit further held that the two exceptions to the Fourth Amendment’s warrant requirement asserted by the City—the community caretaking exception and the motor vehicle exception—did not permit the warrantless search of chalking parked car tires in order to enforce the City’s parking regulations. Id. However, the Sixth Circuit held that other exceptions to the warrant requirement may apply, and therefore, the Sixth Circuit remanded the case to the United States Court for the Eastern District of Michigan for further proceedings. Id.
On remand, the District Court, again, granted summary judgment to the City. This time, the District Court held that the suspicionless tire chalking constituted a valid administrative search. Taylor v. City of Saginaw, ___ F.4d ___, 2021 WL 3745345 (Aug. 25, 2021)(Taylor II). The relevant facts for this second appeal are as follows.
Plaintiff Alison Taylor received several parking tickets from the City for leaving her car in its downtown area beyond the time allowed by city ordinance. Each time, Defendant Tabitha Hoskins (a parking enforcer with the City) chalked the tire of Taylor’s vehicle several hours before issuing the ticket. Every ticket noted the time that Taylor’s vehicle was first “marked” with chalk in the regulated area. Hoskins also documented the ticket with one or more photographs of the offending vehicle.
On remand, Taylor moved for class certification, and Defendants moved, again, for summary judgment. The District Court granted Defendants’ motion, denied Taylor’s class-certification motion as moot, and entered judgment in Defendants’ favor. Specifically, the District Court held that Defendants were entitled to summary judgment because the administrative search exception to the Fourth Amendment’s warrant requirement applied. Taylor timely appealed, and Defendants cross-appealed.
The Sixth Circuit began its consideration of Taylor II by noting that that the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. To determine whether a Fourth Amendment violation has occurred, courts must ask two questions: first, whether the alleged government conduct constitutes a search within the meaning of the Fourth Amendment, and second, whether the search was reasonable.
The Sixth Circuit, then, reiterated its holding in Taylor I, that the chalking of a car’s tire in order to enforce parking regulations constitutes a search for purposes of the Fourth Amendment. Because tire chalking is a search that Defendants conducted without an authorizing warrant, the Sixth Circuit stated that the search was presumptively unreasonable and further stated that the warrant requirement was subject only to a few specifically established and well-delineated exceptions. Like the District Court, the Sixth Circuit focused solely on the applicability of the administrative-search exception in Taylor II.
The Sixth Circuit then explained that, generally, when a search is conducted for an administrative purpose and pursuant to a regulatory scheme—such as inspecting a home for compliance with a municipal housing code—the government may justify a warrantless search by showing that it met reasonable legislative or administrative standards. This standard is assessed by balancing the need for the search against the invasion which the search entails. But, it is not a free-for-all for civil officers. Among other requirements, the subject of the search must be afforded an opportunity to obtain pre-compliance review before a neutral decisionmaker. As a result, the Sixth Circuit determined that this prerequisite removed the City’s practice from the usual administrative-search case because there was no such opportunity for pre-compliance.
With the lack of a pre-compliance-review option, the City instead argued that its practice fell within the limited sub-classes of administrative searches that do not mandate that precondition, i.e., the “closely regulated industries” category. Businesses in these industries have such a history of government oversight that no reasonable expectation of privacy could exist, and according to the City, pre-compliance review is not necessary. Therefore, instead of the balancing test, the Sixth Circuit noted that courts apply three criteria to warrantless inspections of closely regulated industries: (1) there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made; (2) the warrantless inspections must be “necessary” to further the regulatory scheme; and (3) the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.
The Sixth Circuit rejected the City’s argument, holding that, unlike the closely regulated industries of liquor sales, firearm dealing, mining, or automobile junkyards identified by the United States Supreme Court, municipal parking plainly does not pose a clear and significant risk to the public welfare. The fact that automobiles are regulated and are involved in parking is, according to the Sixth Circuit, inconsequential because the exception applies to industries, not to objects.
Finally, the Sixth Circuit observed that the administrative-search exception authorizes regimes of suspicion less searches where the program was designed to serve special needs beyond the normal need for law enforcement. For example, the Supreme Court has endorsed sobriety checkpoints aimed at removing drunk drivers from the road. But, the Sixth Circuit saw no special need in this case (which Defendants conceded), and the Sixth Circuit stated that common-sense commanded this conclusion. For nearly as long as automobiles have parked along city streets, municipalities have found ways to enforce parking regulations without implicating the Fourth Amendment. Therefore, the Sixth Circuit concluded that tire chalking is not necessary to meet the ordinary needs of law enforcement (let alone the extraordinary), held that the administrative-search exception did not justify the City’s suspicion less chalking of tires in order to enforce its parking regulations, and reversed the District Court’s grant of summary judgment in the City’s favor.
As for Defendant Hoskins, however, the Sixth Circuit determined that she was immune from this suit based upon the doctrine of qualified immunity. Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. That being said, the clearly established right must be defined with specificity and not at a high level of generality. The focus must be on whether the violative nature of particular conduct is clearly established in light of the specific context of the case. Once raised by a defendant, the plaintiff bears the burden to overcome qualified immunity.
Taylor attempted to overcome Hoskin’s qualified immunity defense by arguing that it was clearly apparent after the Supreme Court’s decision in United States v. Jones, 565 U.S. 400 (2012), that any physical intrusion upon a vehicle for the purpose of obtaining information of its activities without a warrant constitutes a Fourth Amendment violation. The Sixth Circuit disagreed. Although there need not always be a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.
The Sixth Circuit held that Jones did not do that. Instead, Jones relied on a common-law trespass theory to hold that attaching a GPS tracker to a car to monitor its movement constituted a search. But, a question remained whether, at common law, a de minimis or harmless trespass to chattels, like putting some chalk on a tire, gave rise to a cause of action for trespass. The Sixth Circuit determined that every reasonable parking officer would not have understood from Jones that suspicion less chalking of car tires violates the Fourth Amendment. As a result, the Sixth Circuit concluded that Defendant Hoskins was entitled to qualified immunity. For these reasons, the Sixth Circuit affirmed the District Court’s grant of summary judgment in favor of Hoskins, reversed regarding the City, and again remanded for further proceedings consistent with its opinion in Taylor II.