There is one thing about lawyers: they can be very creative. The Sixth Circuit Court of Appeals issued an opinion  in late April that, while having absolutely nothing to with mediation except to encourage brainstorming and “out of the box” thinking, is worth noting.

So- spoiler alert– this blog has nothing to do with mediation other than demonstrating creativity.

It seems that between 2014 and 2017, plaintiff Alison Patricia Taylor received a lot of parking tickets – 15 of them- from the parking police in the  City of Saginaw, Michigan.  So, in 2017, she sued the city- Taylor vs City of Saginaw; Tabitha Hoskins ( The parking enforcement officer who gave her all those tickets.) ( Sixth Circuit Court of Appeals, Case No. 17-2126- filed April 22, 2019) for violation of her civil rights under 42 U.S. C. §1983 alleging that the defendants violated her Fourth Amendment rights against unreasonable searches by placing a chalk mark on her tires without a consent or a valid search warrant. (Id. at 2.)

The defendants filed a motion to dismiss claiming that placing a chalk mark on a tire was  not a “search” within the meaning of the Fourth Amendment or, alternatively, if it was a “search”, it was “reasonable under the community caretaker exception.” (Id.)

The trial court granted the motion to dismiss, finding that it was a “search” within the meaning of the Fourth Amendment. However, the court also held that the “search” was reasonable “…because (1) there is a lesser expectation of privacy in automobiles; and (2) the search was subject to the community caretaker exception to the warrant requirement.” Thus, ultimately, the court found there was no Fourth Amendment violation. (Id. at 3.)

So, the plaintiff appealed to the Sixth Circuit.  With pun intended, the appellate court stated, “Because we chalk this practice up to a regulatory exercise, rather than a community-caretaking function, we REVERSE.” (Id. at 2- emphasis original.)

With respect to whether the chalking of a tire amounts to a “search” within the meaning of the Fourth Amendment, the appellate court stated, “yes”.  (Id. at 4.) In accordance with previous case law, the appellate court found that the chalking amounted to a common-law trespass as it is ““an act which brings [about] intended physical contact with a chattel in possession of another.” “(Id. at 5.)

The court then found that the trespass was ““…conjoined … with an attempt to find something or to obtain information.”” (Id.)  That is, that the vehicle had been parked in the same location for a certain period. (Id.)  As a result, the court found that the chalk mark constituted an unlawful “search” under the Fourth Amendment.

The Court made short shrift of the “automobile exception” finding a lack of ““…probable cause to believe that the vehicle contains evidence of a crime.” (citation omitted).” (Id. at 7.)   The court also rejected the notion that the plaintiff had a reduced expectation of privacy in her parked automobile since there was no ““individualized suspicion of wrongdoing.”” (Id.) That  is, at the time the chalk was placed on the tire, plaintiff had done nothing wrong. The vehicle was at the moment legally parked!

The appellate court then turned its attention to the community caretaker exception. It found that the “search” was NOT reasonable as it is not covered by the community caretaker exception.  This exception applies,” “whe[n] …government actors [are] performing ‘community caretaker’ functions rather than traditional law-enforcement functions.” (citation omitted)”. (Id. at 7-8.) This exception requires that the court ““…look at the function performed by a [government agent].”” (Id. at 8.)

Pointing out that this exception usually applies when public safety is at risk, the  appellate court found no such risk to public safety, here. The City did not show that by virtue of the plaintiff’s car being parked longer in the spot than allowed, that it created a “hazard” to traffic or some other impediment to traffic causing a concern for safety.  Further, the City failed to demonstrate that delaying a “search” would result in ” “injury or ongoing harm to the community.” “(Id. at 8-9.) Rather, plaintiff’s vehicle was lawfully parked, just for too long of a time.

As the ultimate  purpose of the chalking of the tire was to raise revenue,  the appellate court held that the exception did not apply.  There was no threat to public safety. (Id. at 9.) Consequently, the appellate court reversed  and remanded the proceeding back to the trial court for further proceedings consistent with its  opinion. (Id. at 10.)

As one  might suspect, the City is not willing to put its chalk away quite yet. It has appealed to the Sixth Circuit to rehear the matter  en banc   or for the entire court consisting of all of the judges to review the decision of this three-judge panel. (http://www.startribune.com/court-amends-decision-in-dispute-over-tires-parking-tickets/509542952/)

… Stay tuned for further developments!

… Just something to think about!

 

 

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