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Money, Patience and Principals

J. Bradley Klepper
Attorney at Law

Most lawyers won’t readily admit it, but the best clients are those with money, patience and who want to pursue a legal matter on principal. Let’s be honest…this is what second homes are made of.

Kicking around the internet the other day, I came across a case that made me smile. The case involved Alison Taylor in Saginaw, Michigan and the art of tire chalking.

For those of you unfamiliar with it, tire chalking is where a parking enforcement officer will use a piece of chalk to mark your tire and where it comes in contact with the ground. The officer will then note the time and come back later. If the mark on the tire and ground no longer line up the officer knows that the case has been moved. If the marks do still line up, the officer knows that the car has not been moved and will write a parking ticket if the car has been parked longer than allowed. This practice has been around forever and I have seen it used on both CMVs and 4-wheelers as justification for parking citations.

Traffic enforcement officers in Saginaw used this to issue the lady mentioned above 15 parking tickets. Interestingly, all of the tickets were issued by the same officer. Apparently, Ms. Taylor had enough and rather than just paying the tickets she took the city of Saginaw to court in the U.S. District Court for the Eastern District of Michigan and argued that tire chalking without a warrant constituted an unreasonable search of her property and thus violated her Fourth Amendment rights. Any time you turn a parking ticket into a constitutional rights issue you have my attention.

The city argued that its actions were allowed because it was serving a community-caretaking function and thus fell under an exception to the warrant requirement. The city also argued that it has long been held that personal vehicles have a lower expectation of privacy.

The U.S. District Court for the Eastern District of Michigan agreed with the city and dismissed Ms. Taylor’s case.

Here is where the money and patience come into play. Ms. Taylor was not done. Despite the no doubt substantial costs in fighting the case in district court Ms. Taylor appealed to the U.S. Court of Appeals for the Sixth Circuit. As background, federal appellate courts are just one step below the U.S. Supreme Court.

The 6th Circuit Court of Appeals reversed the lower court’s decision. While the court did not hold that chalking violated Ms. Taylor’s constitutional rights it held that a car is private property and that marking the tire constituted a search. The Court compared it to attaching a GPS device to a car as both monitor a car’s whereabouts.

The court further stated that chalking a car when it is legally parked is liking searching someone before they commit a crime. In other words, no probable cause exists to support chalking. Just because a car may stay parked longer than allowed does not necessarily mean it will.
The court also said that the city failed to show how tire chalking of a car parked in a public place, for the purpose of revenue generation, qualified under the community-caretaking function exception to warrant requirement.

While the court did not expressly state that chalking was a constitutional violation it did state that the justifications set forth by the city do not apply. The court noted that the matter will now return to the lower court and the city will need to find other justifications to support the practice of chalking.

So, what have we learned……a couple of things. First, that the city needs better justification to continue this practice.

Second, that dependent upon how this all finally plays out, the states under the 6th Circuits jurisdiction (Kentucky, Michigan, Ohio and Tennessee) will need to look at their justification for chalking.

Finally, we learned that if you have money, patience and are willing to fight for your principals you can make a difference.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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