Is that parking ticket you got in Wichita legal? Maybe, maybe not
Wichita has decided to reinstate a controversial parking enforcement practice that has been declared unconstitutional by a federal appeals court covering four other states, city officials said.
Wichita has decided that it won’t scrap a method known as “chalking” tires, a means of establishing how long a car’s been parked in a particular space.
“After reviewing the opinion of the court, we have elected to . . . continue chalking tires to monitor parking,” said a statement from a city spokeswoman provided in response to Eagle questions. “Enforcing parking restrictions is crucial to our local economy – businesses depend upon the public having quick and convenient access to their locations.”
Here’s how chalking works: Let’s say the time limit on a particular set of parking spaces is two hours. The parking enforcement officer, called an “ambassador” in city jargon, puts a chalk mark on the tires of every car on the block and then returns two hours later to check the chalk marks and ticket any cars that apparently haven’t been moved.
In April of last year, the Sixth Circuit Court of Appeals ruled in a Michigan case that the practice of chalking tires was an unreasonable search under the Constitution’s Bill of Rights.
The court rejected the city of Saginaw’s arguments that people have a reduced expectation of privacy with vehicles and that chalking falls under a “community caretaker” exception to the Fourth Amendment.
In its decision, the court wrote: “At the time of the search, (the plaintiff’s) vehicle was lawfully parked in a proper parking location, imposing no safety risk whatsoever. Because the purpose of chalking is to raise revenue, and not to mitigate public hazard, the city (of Saginaw) was not acting in its role as a community caretaker.
“The city does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking – before they have even done so – is sufficient to justify a warrantless search.”
However, because the court case was decided in a different federal jurisdiction, Wichita has decided to keep on chalking.
“The case prohibiting the marking of tires was in the 6th circuit federal appeals court,” said the e-mail statement from city spokeswoman Megan Lovely. “This applies to Michigan, Ohio, Kentucky and Tennessee. Kansas is in the 10th circuit, which means the 6th circuit opinion is not binding upon us.”
Wichita had suspended chalking tires shortly after the Michigan case was decided. That also coincided with a lengthy process of filling vacancies in the parking enforcement department.
Now, at least one new ambassador has been hired and has been observed chalking tires and writing tickets in Old Town since the beginning of the year.
The ambassador referred questions about chalking to his supervisors at City Hall, who conveyed their answers through the statement by Lovely.
The lawyer who represented the Michigan case, Philip Ellison, acknowledged that a Sixth Circuit decision is only legally binding on the four states in the circuit.
In addition, he said the decision probably won’t be finalized until summer, because the case was remanded to the original trial court and Saginaw could theoretically come up with another justification for chalking that could pass constitutional muster.
“We’re on the two-yard line right now of (scoring) the touchdown in this case,” he said. “They’ve got a chance to get an interception and run in the other direction, but it’s very, very unlikely at this point . . . What were likely their best justifications for chalking tires were shot down.”
And while the case doesn’t directly apply outside the Sixth Circuit, it does put cities nationwide on notice that chalking tires could be constitutionally suspect.
“I think that your parking enforcement officials there in Wichita are taking a big risk, because one court’s already ruled it’s unconstitutional and that means they have actual knowledge it’s likely unconstitutional,” he said. “And if they continue to go forward, that puts the actual individual officer using the chalk liable under the federal civil rights laws.”
It’s possible that a Kansas case could be decided differently by the 10th Circuit, based in Denver, he said. That would create a “circuit split” that could go to the Supreme Court for a final decision.
“Hopefully some other enterprising lawyer comes up and finds a way to challenge this in the 10th Circuit,” Ellison said. “I don’t know what kind of salary the (Wichita) parking enforcement official has, but if they’re going to continue on, knowing it’s likely unconstitutional and (the 10th Circuit Court judges) rule that way, they’re probably not going to have immunity from suit.”
James Thompson, a Wichita civil rights attorney who has sued the city in the past, said he doesn’t agree with Ellison’s analysis on liability of individual city officials.
He said he agrees with the city that Wichita officials aren’t bound to follow the Sixth Circuit ruling. And even if they were, employees would still be protected by a Kansas state law requiring municipal governments to pay any civil rights damages resulting from employees’ official acts on the job, he said.
