Ninth Circuit Court of Appeal Upholds City of San Diego’s Municipal Code Regarding Use of Parking Spaces

The Federal Ninth Circuit Court of Appeal has ruled that the practice of “tire-chalking,” a common practice of leaving a small chalk mark to indicate length of time of a vehicle in a particular parking spot, does not violate Fourth Amendment search and seizure principles. Importantly, the court does acknowledge placing a chalk mark on a tire is a “search” under the Fourth Amendment, however such an enforcement tool is a “de minimis” intrusion on personal liberty.

Background: Andre Verdun v. City of San Diego
In Andre Verdun v. City of San Diego, Mr. Verdun challenged the City’s ability to chalk tires in City parking spots under 42 U.S.C. § 1983 alleging that such action by the City violated the Fourth Amendment. The City has utilized tire chalk since at least the 1970s as an efficient and cost-effective way to determine a car’s violation of time limits on City parking spots. The City’s parking officer must place the chalk mark on every vehicle parked in a given area of the City; parking officers do not single out particular vehicles. Plaintiffs Andre Verdun and Ian Anoush Golkar each received at least one parking citation from the City after their vehicles were chalked and their cars were later found in violation of the City’s parking time limits. The district court concluded that tire chalking constitutes a Fourth Amendment search, but that search is justified under the “administrative search exception” to the warrant requirement. Therefore the district court granted the City’s motion for summary judgment.

Further Considerations
There are two main considerations all counties and cities must account for regarding this issue. (1) the Sixth Circuit Court of Appeal has ruled tire chalking unconstitutional under Fourth Amendment grounds. Taylor v. City of Saginaw, 922 F.3d 328, 336 (6th Cir. 2019), which tipped off potential plaintiffs to attempt to challenge this practice, and until the Verdun case, we did not have a local ruling applicable. Furthermore, if the Sixth Circuit case is granted writ of certiorari and the case is heard by the United States Supreme Court, that ruling would have implications nationwide. (2) The ruling in Verdun v. City of San Diego was from a three-judge panel in the Federal Ninth Circuit Court of Appeals. This means that the plaintiff can appeal this case at least two more times, the first appeal would be to have the case reviewed “en banc” which means for the full circuit court to review the decision of the three-judge panel. This is significant for a couple of reasons. First, the three-judge panel was split 2-1 in favor of the City, one judge was unconvinced and believed tire chalking to be unconstitutional as argued. Second, the full Ninth Circuit could still overturn this decision upholding tire chalking. Ultimately, the issue of tire chalking is not at its final resolution as of right now, but it is still leaning in favor of City enforcement.

Fourth Amendment Search and Seizure Protection
Under the Fourth Amendment, persons have the right against unreasonable searches and seizures by the government. Generally, for a search to occur there must be a warrant issued upon probable cause, 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).

One such exception, used by the court here, is the “administrative search” or “special needs” exception, which the court uses interchangeably throughout its decision in Verdun v. City of San Diego when discussing the issue.

Administrative Search Exception
The Supreme Court has explained that “[s]earch regimes where no warrant is ever required may be reasonable where ‘special needs . . . make the warrant and probable-cause requirement impracticable,’ and where the ‘primary purpose’ of the search is ‘[d]istinguishable from the general interest in crime control.’” (first quoting Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S. 602, 619 (1989), and then quoting Indianapolis v. Edmond, 531 U.S. 32, 44 (2000)).

Examples of these types of searches are searching of commercial establishments selling alcohol for purposes of checking compliance with federal laws governing such businesses. Colonnade Catering Corp. v. United States, 397 U.S. 72, 76 (1970). Another example is the searching of pawn shops and other firearms-related businesses for compliance with firearms laws. United States v. Biswell, 406 U.S. 311, 312, 317 (1972).

Essentially, the use of administrative searches is a broad heading where the government has sufficient justification and need for particularized searching.

The Supreme Court used a few principles to guide their decisions regarding whether a warrantless search qualifies for this exception.

• The first guiding principle of these types of searches is they must bear a sufficient connection to the governmental interests they serve and cannot advance as their “primary purpose” “uncover[ing] evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 41-42.
• Next, the court must consider “where a Fourth Amendment intrusion serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989).
• Lastly, the court must consider even when “a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.” Maryland v. King, 569 U.S. 435, 448 (2013). This principal means that although it may not require a warrant, any search must be reasonable.

Tire Chalking in the Context of Administrative Searches
The court reviewed the practice of tire chalking in this case and importantly pointed out that tire chalking does not have any apparent “spillover” use outside of its stated purpose, which is parking enforcement. The first guideline principle identified by the court (listed in the prior section) considers uncovering evidence of ordinary criminal wrongdoing. The court indicated that placing a small mark on a tire does not reveal any information other than how long that car has been parked.

Also, requiring a warrant for such an action would render parking enforcement “impracticable.” That term is important because it is required under the definition of administrative searches and the second guiding principle for the court to consider.

The last guideline principle is whether this intrusion is reasonable. The court pointed out, “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. Chalking involves no detention of persons or property; it does not damage property or add anything permanent to it; and the search does not create ‘substantial anxiety,’ as some searches may.” Verdun v. City of San Diego, 51 F.4th 1033 (9th Cir. 2022).

Takeaways
This decision is important for cities and counties to continue to have a cost-effective method of enforcement of parking time limits. However, the “administrative search” requirement is not a catch-all to allow warrantless searches and any municipality should consider the guideline principles outlined in the decision whenever considering a search. The practice of tire chalking appears safe for now, and until a higher court says otherwise, cities and counties can continue using this method.

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