A Saginaw resident says the parking tickets she acquired violated her constitutional rights.
Alison Taylor had an assigned parking spot, but she says it was not being maintained so she had to park in the street. While doing so she received — and paid for — 14 parking tickets from the city. Before Taylor received each ticket, a parking attendant marked her vehicle with chalk to track how long it had been there.
“The significance of this case is that even when the government is violating your rights a little bit, versus a whole lot, it’s still problematic and still should not be done.” —Philip Ellison, Alison Taylor’s attorney
Taylor decided to sue the city in a class action lawsuit claiming that chalking tires to track how long a car has been parked is a violation of the Fourth Amendment, which protects against unreasonable searches.
“The significance of this case is that even when the government is violating your rights a little bit, versus a whole lot, it’s still problematic and still should not be done,” says Taylor’s attorney, Philip Ellison.
The case was thrown out at first but won an appeal. Then it was thrown out again, but just recently won a second appeal with the 6th U.S. Circuit Court in Cincinnati.
WDET’s Laura Herberg spoke with Ellison about the case. Click on the audio player to hear that conversation or read a transcript, edited for brevity and clarity, below.
Listen: Attorney Philip Ellison on why he thinks chalking tires before issuing parking tickets violated his client’s rights.
Laura Herberg, 101.9 WDET: What made you and your client think you had a case here?
Philip Ellison, Taylor’s attorney: So for many years in the United States, the law on the Fourth Amendment was whether the activity or the area that was sought to be searched would be deemed reasonably private based on community expectations. In 2012, a U.S. Supreme Court case came out called Jones. And the Jones decision said, in addition to all the reasons for all the places where we say that we treat it with the reasonable expectation of privacy, we’re also going to say that when the government trespasses onto your property for the purpose of extracting information for enforcement that’s a search.
And let’s back up just a little bit. For folks who aren’t really familiar with the Fourth Amendment, can you talk about what it’s intended to do?
The Fourth Amendment is a constitutional amendment. It protects people from unreasonable searches of their persons, houses, papers and effects unless the government gets a warrant first. And what that’s designed to do is to put somebody in between law enforcement officials, or what they called back in the day the constables, versus the citizenry. Essentially cops and constables can’t come busting in your door or come busting in your horse and carriage without someone else reviewing the need for that, which would have been a judge or a magistrate signing off on that.
Well, as the years have gone by and as our constitutional laws developed there have been some exceptions that have been created for when law enforcement no longer needs to get a warrant. But for the most part, when a law enforcement officer wants to search your private property they have to get a warrant from a judge. And if they don’t get a warrant from a judge that generally violates the Fourth Amendment.
How are you arguing that a chalk mark on a car qualifies as an unconstitutional search?
Well, so the case in Jones was one where the law enforcement had placed a GPS tracking device physically on the vehicle of Mr. Jones’ wife’s car. And so when Mr. Jones started driving around the police were tracking where he was or where he wasn’t based on that GPS tracking device. And so when we looked at that case, we thought, isn’t chalking essentially the same thing, a low-tech version, but the same thing? It’s a device that’s hooked to a vehicle to tell where someone is or isn’t for a certain period of time. So we drew what we call in the legal business an analogy. We analogized it to the same circumstances. Chalking is not a GPS tracking device. But the principle is the same. It’s the government tracking where you are and where you aren’t for the purposes of law enforcement or to enforce the law in some way. So, we came up with this idea and argued it’s very similar, and for the most part, at least for the appellate courts, it’s been very successful.
“It is a big deal, because it’s that old slippery slope argument. If you let them do A, then they’re going to want to do B. And then if you want to do B, they’re going to want to do C. And before you know it our rights under the Constitution have been completely eroded. —Philip Ellison
What did the court say?
Well, this time around the court held that the reason that the lower federal court threw out our case the second time was an error.
The lower court decided that the City of Saginaw could conduct chalking then later issue tickets based on a concept called the administrative search doctrine. An administrative search doctrine is very similar to why, for example, the government can come inspect power plants or the Liquor Control Commission can inspect bars. There’s a set regulatory way in which we don’t require those types agencies to get a warrant ahead of time because basically you know when they’re coming, they announce when they’re coming.
We argue that chalking is not the same thing. Here the government official, being the parking enforcement officer, comes through and just marks everybody’s car with or without notice and just shows up to do that. And when you’re trespassing on a car, much like the tracking device from Jones to see where someone is or where someone isn’t, that provides the basis by which we can say the administrative search doctrine does not apply. And that’s what the Sixth Circuit ruled.
So these are all exceptions to the warrant requirement. The last time around, there was a couple other exceptions, one was called community caretaking, another one was called the automobile exception. The court there in the previous appeal said those don’t apply. In this case, they held that the administrative search doesn’t apply.
So basically, we’re slicing the salami down to not much left for the city to be able to argue to make a sandwich out of to say “there’s no case here.”
Is this all about parking tickets and chalking or what’s the significance of this case?
Well, the significance of this case is that even when the government is violating your rights a little bit, versus a whole lot, it’s still problematic and still should not be done. I know there’s a lot of folks when I review the comments online to some of the stories people post about this they say, “Well, this is kind of ridiculous. Of all the problems we have in the world, why are we focused on chalking tires? It’s no big deal.” But it is a big deal, because it’s that old slippery slope argument. If you let them do A, then they’re going to want to do B. And then if you want to do B, they’re going to want to do C. And before you know it our rights under the Constitution have been completely eroded.
What’s next for your client and for the case?
Well, we head back to the local court and we’re back down for another round of legal cases and arguments to see how the case will develop and if we ultimately succeed in the case. Because interestingly, the Sixth Circuit didn’t grant us the full win. They just simply said what the judge below did was an error. And we sent it back and we continue on with the case. We pick up right where we left off.