Verdun v. City of San Diego

• Docket Number: 21-55046
• Decision Date: 26 October 2022
• Parties: Andre VERDUN ; Ian Anoush Golkar, on behalf of himself and a class of all others similarly situated, Plaintiffs-Appellants, v. CITY OF SAN DIEGO; San Diego Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

51 F.4th 1033

Andre VERDUN ; Ian Anoush Golkar, on behalf of himself and a class of all others similarly situated, Plaintiffs-Appellants,

v.CITY OF SAN DIEGO; San Diego Police Department, Defendants-Appellees.

No. 21-55046

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 17, 2022 Pasadena, California

Filed October 26, 2022

Daryoosh Khashayar (argued), Khashayar Law Group, San Diego, California; Ramin R. Hariri, Hariri Law Group, San Diego, California; for Plaintiffs-Appellants.

Meghan A. Wharton (argued), Deputy City Attorney; George F. Schaefer, Assistant City Attorney; Mara W. Elliott, City Attorney; Office of the City Attorney, San Diego, California; for Defendants-Appellees.

Before: Daniel A. Bress and Patrick J. Bumatay, Circuit Judges, and Robert S. Lasnik,^* District Judge.

Opinion by Judge Bress ;

Dissent by Judge Bumatay

BRESS, Circuit Judge:

We are asked to decide whether the longstanding practice of chalking tires for parking enforcement purposes violates the Fourth Amendment. It does not. Even assuming the temporary dusting of chalk on a tire constitutes a Fourth Amendment "search," it falls within the administrative search exception to the warrant requirement. Complementing a broader program of traffic control, tire chalking is reasonable in its scope and manner of execution. It is not used for general crime control purposes. And its intrusion on personal liberty is de minimis at most. We hold that municipalities are not required to obtain warrants before chalking tires as part of enforcing time limits on city parking spots. We affirm the district court's grant of summary judgment to the City of San Diego.

I

The City of San Diego owns thousands of parking spaces that are located on City property. The San Diego Municipal Code governs the use of the City's parking spaces. Drivers who violate the Code's parking regulations may be required to pay civil fines. Pursuant to the Code, the City imposes time limits that are publicly posted and that restrict how long a vehicle may remain in a particular parking spot.

Since at least the 1970s, San Diego has used tire chalking as one method of enforcing time limits for its parking spaces. Chalking consists of a City parking officer placing an impermanent chalk mark of no more than a few inches on the tread of one tire on a parked vehicle. The parking officer must place the chalk mark on every vehicle parked in a given area of the City; officers do not single out particular vehicles for chalking. If a vehicle's chalk mark is undisturbed after the parking limit has expired, this shows the vehicle has exceeded the time limit for the space. The parking officer may then issue a citation for violation of the City's parking regulations. According to the district court's findings, the chalk mark on the tire rubs off within a few tire rotations after driving.

The record reflects that San Diego's parking enforcement methods, including chalking, are intended to enhance public safety, improve traffic control, and promote commerce. Insufficient parking enforcement can lead to widespread noncompliance with the City's parking limits, whereas consistent enforcement increases parking space turnover and allows the City to increase the availability of parking in high-demand areas. When parking spaces do not regularly turn over, drivers may engage in "cruising"—that is, circling blocks in search of parking—or may double-park in lanes of traffic while waiting for spaces to become available. Drivers may also illegally park in zones reserved for buses, disabled drivers, or emergency personnel.

Insufficient parking impacts public safety. Cruising, double parking, and illegal parking all lead to increased traffic congestion that makes it more difficult for public buses and emergency vehicles to navigate city streets. Illegally parked vehicles may block access to fire hydrants or bus lanes. Greater traffic volume poses greater safety risks to pedestrians, bicyclists, and drivers, and drivers searching for spots are also distracted and more likely to cause collisions. Stop-and-go traffic and idling vehicles associated with congestion and parking shortages also result in increased localized vehicle emissions.

Increasing parking availability and reducing traffic congestion in turn improves commerce. Local businesses and commercial districts depend on the availability of parking. Enforcing parking time limits by chalking tires improves parking turnover and encourages customers to visit, shop, and dine within a reasonable time to allow more customers to do the same. Businesses and restaurants have frequently complained to the City about the availability of parking, and often request that the City enforce parking time limits more regularly. Expanding parking availability increases commercial activity and, correspondingly, the City's sales tax revenues.

Although the City has other ways of enforcing its parking regulations, there is considerable evidence that chalking is its most cost-effective method, and that it is more efficient and accurate than other methods. Photographing cars, for instance, would require parking officers to take and review hundreds of photographs. The City cannot currently manage the volume of data that would be involved in such an effort. The City previously experimented with the use of streetlight cameras for parking enforcement but abandoned the program after it posed too many difficulties. Visual marking—which requires officers to record information about a vehicle and then check their notes later—is less efficient and more time-consuming. After the City used visual marking briefly during the pendency of this litigation, it received an uptick in complaints from business owners about vehicles overstaying parking limits.

In recent years, some municipalities have adopted License Plate Reader (LPR) technology to enforce parking regulations. Although LPR technology is effective, it would cost the City millions of dollars and take several years to implement. LPR technology would also require the City to maintain time-stamped photographs and Global Positioning System (GPS) data for vehicles parked in City parking spaces, which could raise privacy concerns. In short, San Diego views tire chalking as superior to other methods of parking enforcement.

Plaintiffs Andre Verdun and Ian Anoush Golkar each received at least one parking citation from the City after their vehicles were chalked. In May 2019, they filed a putative class action under 42 U.S.C. § 1983, alleging that tire chalking violated the Fourth Amendment. Plaintiffs asked for an injunction against chalking and monetary damages. The alleged damages consist of amounts the putative class has paid in parking tickets when their cars were ticketed after chalking.

The district court concluded that tire chalking constitutes a Fourth Amendment search but that it is justified under the administrative search exception to the warrant requirement. The district court thus granted summary judgment to the City. Plaintiffs timely appeal. Our review is de novo. Butcher v. Knudsen , 38 F.4th 1163, 1168 (9th Cir. 2022).

II

A

The Fourth Amendment, which applies to the City of San Diego through the Fourteenth Amendment, protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend IV. Before the reorientation of Fourth Amendment "search" doctrine around the physical trespass theory, as set forth in United States v. Jones , 565 U.S. 400, 406–07, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and later in Florida v. Jardines , 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), it is not apparent that anyone viewed tire chalking as presenting a grave question of constitutional law, or indeed any question of constitutional dimension.

There is evidence that municipalities have been chalking tires for parking enforcement purposes since at least the 1930s. See Kerry Segrave, Parking Cars in America, 1910–1945: A History 120 (2012) (discussing tire chalking in 1935 in Dallas, Texas); Owens v. Owens , 193 S.C. 260, 8 S.E.2d 339, 340 (1940) (noting the practice of tire chalking in Columbia, South Carolina); State v. Sweeney , 90 N.H. 127, 5 A.2d 41, 41 (1939) (describing a police officer chalking a tire in Nashua, New Hampshire); Commonwealth v. Kroger , 276 Ky. 20, 122 S.W.2d 1006, 1007 (1938) (describing a policeman chalking a tire in Newport, Kentucky on November 7, 1938). In San Diego, tire chalking has been used since at least the 1970s.

For most of tire chalking's nearly one-hundred-year history as a parking enforcement tool—a history that would seem to coincide with the rise of the automobile—it appears that tire chalking went unchallenged on constitutional grounds. Plaintiffs have not cited any challenges, successful or otherwise, to the constitutionality of tire chalking that predated Jones. So there is some reason to be skeptical of plaintiffs' effort to have us suddenly declare as violating the United States Constitution a rather innocuous parking management practice that has been commonly used without question for several generations in localities across the country. Cf. NLRB v. Noel Canning , 573 U.S. 513, 533, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014) ("[T]hree-quarters of a century of settled practice is long enough to entitle a practice to ‘great weight in a proper interpretation’ of the constitutional provision.") (quoting The Pocket Veto Case , 279 U.S. 655, 689, 49 S.Ct. 463, 73 L.Ed. 894 (1929) ).

But we will put any such skepticism completely to the side and undertake a full analysis under the Fourth Amendment. The initial question is whether tire chalking is even a Fourth Amendment "search" in the first place. We will assume without deciding that it is. The plaintiffs rely heavily on Jones. There, the Supreme Court held that a search occurs when the government "physically occup[ies] private property for the purpose of...