Baraboo, Portage police address tire-chalking ruling

May 6, 2019

A court’s ruling that chalking vehicle tires to enforce parking time limits is unconstitutional has caught the attention of local police.

Last month a federal appeals court based in Cincinnati ruled marking tires violates the Fourth Amendment’s ban on unreasonable searches. The court held that chalking is a form of trespassing requiring a warrant.

The unprecedented decision raised eyebrows in law enforcement across the nation, as parking attendants for decades have used chalk to enforce time limits in lots without meters. Police in Baraboo and Portage plan to continue using chalk, as the 6th Circuit Court of Appeals doesn’t govern Wisconsin. But they’re considering alternatives in case chalking tires is ruled illegal nationwide.

“Legally we can still chalk tires. The question is whether the city wants to move away from that,” Baraboo City Attorney Emily Truman told the Common Council’s public safety committee last week.

Alternatives could include tracking license plates by taking pictures of parked vehicles. That was one option Portage Police Chief Ken Manthey discussed at a city department head meeting last week. He asked the city attorney to address the issue.

“This, I think, caught most police departments off guard,” Manthey said. “But now we have to deal with it.”

The case came from Saginaw, Michigan, where citizens filed a civil rights suit against the city and its parking enforcement officer over their tickets, citing the Fourth Amendment’s restriction against unreasonable searches. But a U.S. District Court in Bay City, Michigan, dismissed the lawsuit, concluding that chalking, while a type of search, wasn’t unreasonable.

The appellate court reversed the ruling, finding that the law governing searches of vehicles had been upended by a 2012 Supreme Court decision restricting the powers of police to use GPS devices to track criminal suspects. In that case, the high court said attaching the tracking device was a form of trespassing on private property by police that requires a warrant.

The appellate court likened the chalking of tires to a GPS device installation, a trespass for the purpose of gathering incriminating information and therefore — if conducted without a warrant — a violation of the Fourth Amendment.

If it stands, the decision could have far-reaching implications. If they can’t enforce parking time limits, U.S. cities could face a substantial loss of revenue from tickets. Or they could face the expense of installing meters.

“If the law changes,” Baraboo Police Chief Mark Schauf said, “what do we do now?”

Some observers have said photographing cars would solve the problem. “Chalking tires is just one of many ways to know a car has been parked there a long time,” said Truman, Baraboo’s city attorney.

But as she chalked tires Thursday outside the Baraboo Civic Center, Community Service Officer Allison Goetz asked how police would prove a motorist hadn’t simply moved their car temporarily and reclaimed the same spot.

“We’ll have to see how this plays out,” said Manthey, Portage’s police chief. “We’re going to have to have some more discussions.”

The 6th Circuit covers Kentucky, Michigan, Ohio and Tennessee. The ruling doesn’t affect law enforcement in Wisconsin, at least not yet. It’s subject to appeal and could conceivably reach the Supreme Court.

“It doesn’t affect us now but it could in the future,” Schauf said.