San Diego City Attorney Mara Elliot announced on Thursday that the 9th Circuit Court of Appeals ruled that San Diego could still use tire chalking as a way to determine if cars had overstayed their time limits for parking on city streets and would need to be ticketed, busting down prior rulings that said that it had broken 4th amendment rights.
The case dates back to 2019, when a lawsuit was filed by Andre Verdun and Ian Anoush Golkar. In their suit, they argued that tire chalk marking broke their 4th amendment rights against unreasonable search and seizure, further arguing that people who parked within the time limits had one nothing wrong and don’t deserve to be chalk marked. They further argued that a warrant would be needed to chalk tires.
“Parking enforcement officers working on behalf of these cities, counties and municipalities have in the past, and continue to do so, use tools to ‘mark’ or ‘tag’ vehicles of unconsenting citizens, and without their knowledge, to ultimately determine whether a vehicle has been parked beyond the authorized permitted time and to issue government sanctions or fines on the owner of the vehicle,” said the 2019 suit. “In fact, the marking or tagging of vehicles occur when the citizen is parked legally, meaning they have purchased a parking permit or paid a meter within the time limits allowed, and the parking permit or parking meter has yet to expire. Once the unconstitutional act is done, a ticket is issued demanding a penalty or fine to be paid.”
While the class action lawsuit was initially disregarded by the city, courts soon began proving that it had staying power. So much so that the San Diego Police had to stop chalking tires temporarily in March 2020 and were forced to do much more intensive ways to determine if a car was timed out. By forcing officials to note where the valve stem of a tire was at then physically keep track of them all during a day, the new method proved to be more costly as it required more time and manpower.
“Due to a lawsuit brought forth against the city of San Diego alleging chalking of tires was illegal, PEOs ceased chalking tires in March of this year,” said the San Diego Police Department (SDPD) in a statement in November 2020. “Until the lawsuit is settled, PEOs have been using an alternate method that includes documenting the exact location of vehicles and tire positioning. Although this method does take more time and resources, the department will continue conducting enforcement for the community so that businesses are not negatively impacted. This new method is definitely slower, and it takes more people to cover an area like La Jolla.”
San Diego and tire chalking
Meanwhile, the lawsuit was challenged again in the appellate court following the city losing in a 2021 district court ruling, with the courts taking a longer time than usual to make determinations due to a backlog in cases coming from closures and delays in court caused by the COVID-19 pandemic. However, the city’s insistence that tire chalking was not an illegal search or violated citizens 4th amendment rights in any way paid off this week, with the 9th Circuit Court of Appeals ruling 2-1 in San Diego’s favor in Andre Verdun, et, al. v. City of San Diego. The court ruled that chalk dusting is not a search under the 4th amendment and also denied damages of around $11 million from being awarded to those who were part of the suit.
“It would be passing strange if tire chalking, of all things, were somehow a Fourth Amendment red line that cannot be crossed,” wrote Judge Daniel Bress in the majority opinion. “The methods of photographing cars or license plates as suggested by the plaintiffs instead of chalking would ironically invite greater intrusions into personal privacy.”
In a statement, City Attorney Elliot added that “San Diego has chalked tires as an effective, cost-efficient, and accurate means of parking enforcement for nearly 100 years. The court was correct in determining that chalking a tire does not represent an illegal search and in rejecting the plaintiffs unsupported, revisionist account of Fourth Amendment doctrine.”
Legal experts noted that the court was correct in their determination, but also noted that those behind the lawsuit could still bring it to a higher court.
“Past the appellate court is the Supreme Court, although many who lose in the appellate court don’t bother by going higher,” explained lawyer Lara Mullen to the Globe on Thursday. “This ruling should put this matter to bed, but we don’t know until we see if they file. But, this case. Some think it is around the 4th amendment, others see it as how some people will do anything to get out of a ticket. But, for right now, San Diego can go back to chalking tires it seems.”
As of Thursday, there has been no announcement of appealing the case to the Supreme Court.
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