San Francisco Chronicle - (Sunday)
$50 million sought over use of chalk to mark tires
What you might call the chalk squat — when a person checks the tires of a parked car for the white stripe of chalk that could result in a fresh ticket landing on the windshield — is on its way out in the Bay Area.
But perhaps not without a final, multimillion-dollar legal battle.
Even as cities across the region switch from chalking tires to digital enforcement of time-zone limits, gaining efficiency and reducing carpal tunnel injuries among parking officers, a pair of federal lawsuits says the oldfashioned way is a violation of drivers’ Fourth Amendment right to be free of unreasonable searches and seizures.
In one of the cases, filed Sept. 4, plaintiff Maria Infante seeks $50 million and class-action status after a San Francisco parking enforcement officer wielding chalk on a residential street
gave her a $95 ticket. Unlike some in her predicament, Infante had apparently not spotted the stripe in time to rub it away.
The city, the suit alleges, “systematically” places chalk or a similar substance on vehicle tires “without the owners’ consent, surreptitiously to obtain information used as the basis for parking citation.”
The second case, filed the same day against San Leandro, demands $5 million for class members whose tires were chalked to financially benefit the city. Plaintiff Akeel Nasser invokes four tickets he received from the city in March for allegedly exceeding a two-hour parking limit. The violations cost him $180.
The San Francisco attorney who filed both suits, Eduardo Roy, hinted in an interview that he may bring more. But if the legal challenges sound like sour grapes, they also stand a chance of succeeding.
That’s because both extend from recent decisions by the Sixth Circuit Court of Appeals in Cincinnati, which twice ruled in favor of a Michigan woman who’d racked up 14 parking tickets.
In the most recent opinion, published Aug. 25, Judge Richard Griffin wrote that chalking may constitute an unreasonable search under the Fourth Amendment. He and the other two judges rejected the city’s argument for an exemption in a lawsuit that is still pending.
The Sixth Circuit ruling, which applies to Michigan, Ohio, Tennessee and Kentucky, has mushroomed into lawsuits in other communities that may hasten the demise of an ancient, low-tech practice.
Some cities have gotten rid of chalk in response. Others found workarounds. In Chillicothe, Ohio, officials put up new signs specifically warning people who parked in time-restricted areas that they were consenting to be chalked.
A trial court in San Diego, meanwhile, ruled that chalking tires is not a Fourth Amendment violation, a decision now headed to the Ninth Circuit Court of Appeals in San Francisco.
It seems the question now is not whether tire chalking will go away, but how — and how soon. The form of enforcement emerged in the 1920s, deployed by a first generation of parking officials, according to UCLA Professor Donald Shoup, who has extensively studied urban parking policies.
Back then, the concept was the same: chalk was a substance that would rub right off a car that moved; a person who “overstayed” would bear the mark. Shoup said he welcomes new technology — and the death of a century-old system.
“In the 1920s, they got used to chalking, because it’s easy to do,” Shoup said, noting that the practice was already ingrained by the time the first parking meter arrived, in 1935. “It’s just surprised me that it’s lasted so long. Municipal parking enforcement has been the most stagnant industry in the U.S. What other practices haven’t changed in a hundred years?”
Shoup blames chalk for lax and selective enforcement. Of all the people who flout parking restrictions each day, few get cited, he said. Those who do face high fines that can be unbearable.
Many cities now equip parking officers with GPS-enabled license plate scanners and data analytics tools that can flag a parked car that hasn’t moved in one or two hours and even confirm whether a tire has rotated at all. Oakland has moved past chalk, as has Berkeley, according to spokespeople for those cities. San Francisco and San Jose are nearly chalk-free.
Sophisticated new systems can enable motorists to pay parking fees remotely, negate the need for individual meters, and alert police to vehicles that have been reported stolen. They can even pinpoint “serial offenders” who routinely occupy curb space for too long, Shoup said.
Asked about this month’s lawsuits, officials at the San Francisco Municipal Transportation Agency referred questions to the City Attorney’s Office. There, spokesperson John Coté said parking control officers “have a tough job, and they do it lawfully and thoughtfully to help keep the City moving so people can get where they need to go.”
Coté said the city still uses chalk in some parking enforcement, though “it’s not the main tool” anymore.
Parking officials in San Leandro did not return phone calls, and the city attorney declined to comment. Neither Infante nor Nasser wanted to talk, and Roy suggested he was upset that their suits were deemed newsworthy. One person who finds the whole saga worth following is UC Berkeley Law Professor Orin Kerr, a Fourth Amendment expert. He said he found himself captivated after the Sixth Circuit court first sided with the Michigan plaintiff, in 2019.
“Courts are still trying to figure this out,” Kerr said of the conflicting opinions. “It ends up being a surprisingly interesting Fourth Amendment question that nobody expected, with a quirky and totally pedestrian fact pattern.”
To weigh whether the chalking of tires is unconstitutional, he said, the courts need to decide whether “it’s a search,” and on top of that, whether the search is “unreasonable.” To date, nobody has answered both questions definitively.
Another legal scholar, Gregory Shill, cringed at the Fourth Amendment argument.
“Realistically, the privacy invasion that is involved when police chalk your tires is the very definition of trivial,” said Shill, an associate professor of law at the University of Iowa. He contrasted the minor inconvenience of a chalked tire with the more severe monitoring of transit riders, noting that after 9/11, New York police searched the bags of subway riders.
He sees this disparity through the prism of social equity: People driving into a city “skew white and wealthy,” he said, while transit users tend to be more racially diverse, with lower average incomes.
Shill pointed out that modern alternatives to chalk, such as license plate scanners that store data for months or years, are more expensive for cities and more invasive for drivers. If you park on a street in an American city where a crime happens, it’s possible that a police detective will serve a warrant on the parking department to find you and others who were nearby — and then knock on your door.
“Whether in court, or in the court of public opinion,” Shill said of the Bay Area plaintiffs, “they’re going to have to show that, say, security cameras are somehow more protective of privacy than chalking your tires.”