ALISON PATRICIA TAYLOR v. CITY OF SAGINAW, MICHIGAN; TABITHA HOSKINS
Nos. 20-1538/1588
United States Court of Appeals, Sixth Circuit
August 25, 2021
21a0194p.06
Before: GRIFFIN, LARSEN, and NALBANDIAN, Circuit Judges.
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0194p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALISON PATRICIA TAYLOR,
Plaintiff-Appellant/Cross-Appellee,
v.
CITY OF SAGINAW, MICHIGAN; TABITHA HOSKINS,
Defendants-Appellees/Cross-Appellants.
Nos. 20-1538/1588
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:17-cv-11067—Thomas L. Ludington, District Judge.
Argued: July 29, 2021
Decided and Filed: August 25, 2021
Before: GRIFFIN, LARSEN, and NALBANDIAN, Circuit Judges.
COUNSEL
ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for
OPINION
GRIFFIN, Circuit Judge.
The City of Saginaw routinely chalked car tires to enforce its parking regulations. In our prior opinion, we held that doing so is a search for Fourth Amendment purposes, and that “based on the pleadings stage of this litigation, . . . two exceptions to the warrant requirement—the ‘community caretaking’ exception, and the motor-vehicle exception—do not apply here.” Taylor v. City of Saginaw, 922 F.3d 328, 336 (6th Cir. 2019) (Taylor I). However, we left for another day whether the search could be justified by “some other exception” to the warrant requirement. Id.
We consider one of those other exceptions today—specifically, whether suspicionless tire chalking constitutes a valid administrative search. Because we conclude that it does not, we reverse the district court’s grant of summary judgment in favor of the City. But because we conclude that the alleged unconstitutionality of suspicionless tire chalking was not clearly established, the City’s parking officer, defendant Tabitha Hoskins, is entitled to qualified immunity. We therefore reverse and remand for further proceedings consistent with this opinion.
I.
Plaintiff Alison Taylor received several parking tickets from defendant City of Saginaw for leaving her car in its downtown area beyond the time allowed by city ordinance. Each time, defendant Tabitha Hoskins chalked the tire of Taylor’s vehicle several hours before issuing the ticket. Every ticket noted the time Taylor’s vehicle was first “marked” with chalk in the regulated area. Hoskins also documented the ticket with one or more photographs of the offending vehicle.
Taylor filed this
held that tire chalking fell within the automobile and/or community caretaking exceptions and therefore did not violate the Fourth Amendment. We reversed. See Taylor I, 922 F.3d at 336–37. On remand, Taylor moved for class certification, and defendants moved for summary judgment. The district court granted defendants’ motion, denied plaintiff’s class-certification motion as moot, and entered judgment in defendants’ favor. Plaintiff timely appealed, and defendants cross-appealed.
II.
We review the district court’s grant of summary judgment de novo. Jordan v. Howard, 987 F.3d 537, 542 (6th Cir. 2021). Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
A.
As we held in Taylor I, “chalking is a search for Fourth Amendment purposes” under the property-based Jones test. Id. And we see no reason to depart from that conclusion, which was a logical extension of the Court’s holding in Jones that a physical trespass to a constitutionally
protected area with the intent to obtain information is a search under the Fourth Amendment. See Jones, 565 U.S. at 406 n.3; id. at 408 n.5.1
B.
Because tire chalking is a search that defendants conducted without an authorizing warrant, it is presumptively unreasonable. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006). However, the warrant requirement is “subject only to a few specifically established and well-delineated exceptions.” City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015) (citation omitted). It is the government’s burden to establish the applicability of an exception to the warrant requirement. See Liberty Coins, LLC v. Goodman, 880 F.3d 274, 281 (6th Cir. 2018). Like the district court, we focus solely on the applicability of the administrative-search exception.2
420. This prerequisite removes the City’s practice from the usual administrative-search case, see id.; Liberty Coins LLC, 880 F.3d at 281–82, as there is no such opportunity (which the City does not contest).
With the lack of a precompliance-review option, the City instead contends its practice falls within the limited sub-classes of administrative searches that do not mandate that precondition. Consider first the “closely regulated industries” category. See Patel, 576 U.S. at 424. Businesses in these industries “have such a history of government oversight that no reasonable expectation of privacy could exist,” and therefore, precompliance review is not necessary. Id. (internal quotation marks and citation omitted). So instead of the balancing test prescribed by Camara and reinforced by Patel, we apply three criteria to warrantless inspections of closely regulated industries: (1) “[T]here must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless inspections must be ‘necessary’ to further the regulatory scheme”; and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.” New York v. Burger, 482 U.S. 691, 702–03 (1987) (brackets omitted). But unlike the closely regulated industries of liquor sales, firearm dealing, mining, or automobile junkyards identified by the Supreme Court, municipal parking plainly does not “pose[] a clear and significant risk to the public welfare.” Patel, 576 U.S. at 424. That automobiles are regulated and involved in parking is inconsequential because the exception applies to industries, not objects. So, for example, a state’s statutory scheme authorizing a warrantless inspection of an automobile junkyard resulting in the search of a Ford Mustang may be permissible, see Burger, 482 U.S. at 702–03, but it does not apply to the search of the same convertible parked on a city street.
Finally, the administrative-search exception also authorizes “regimes of suspicionless searches where the program was designed to serve special needs, beyond the normal need for law enforcement.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (internal quotation marks and citation omitted); see also Patel, 576 U.S. at 420. For example, the Supreme Court has endorsed highway checkpoints near borders to curb illegal immigration, United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976), and sobriety checkpoints aimed at removing
drunk drivers from the road, Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451–53 (1990). The Court has also condoned suspicionless drug- and alcohol-testing in various contexts, including for student-athletes, federal employees seeking promotions, and railway employees
In concluding otherwise, the district court went astray in three significant respects. First, it treated plaintiff’s Fourth Amendment claim as a broad challenge to the City’s ability to regulate parking through its police powers. The issue here, rather, is whether the City’s chosen means for exerting that civil authority violates the Fourth Amendment. See New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (“[T]he Fourth Amendment [is] applicable to the activities of civil as well as criminal authorities.”). Second, it also seemingly placed the burden on Taylor to demonstrate that the City’s parking ordinances were “unreasonable[].” But once Taylor established that tire chalking is a search, the burden shifted to defendants to establish the reasonableness of the search by demonstrating the applicability of an exception to the warrant requirement. See Liberty Coins, LLC, 880 F.3d at 281. Third, the district court applied the wrong law when it relied on Brown v. Texas, 443 U.S. 47, 51 (1979), to condone defendants’ tire-chalking practice, stating “[t]he City’s use of chalk [was] reasonable because it is in the public interest [to enforce parking regulations] and the ‘severity of the interference with individual liberty’ is minimal.” Brown is not an administrative-search case (or even a search case at all), and the balancing test it prescribes has no application to these facts.
For these reasons, we hold that the administrative-search exception does not justify the City’s suspicionless chalking of car tires to enforce its parking regulations. We express no
opinion on the remaining exceptions to the warrant requirement because we are “a court of review, not first view.” United States v. Houston, 792 F.3d 663, 669 (6th Cir. 2015).3
IV.
We conclude by addressing whether Hoskins is entitled to qualified immunity. “Because qualified immunity is “an immunity from suit rather than a mere defense to liability . . . it is effectively lost if a case is erroneously permitted to go to trial.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (alteration in original) (citation omitted). Accordingly, qualified immunity should be
“Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (citation omitted). Therefore, the clearly established right must be defined with “specificity,” and not “at a high level of generality.” Id. “Notice to officials is paramount; the salient question in evaluating the clearly established prong is whether officials had fair warning that their conduct was unconstitutional.” Guertin v. State, 912 F.3d 907, 932 (6th Cir. 2019) (internal quotation marks omitted). The focus must be “whether the violative nature of particular conduct is clearly established in light of the specific context of the case.” Id. (citation and ellipsis omitted).
Once raised by a defendant, the plaintiff bears the burden to overcome qualified immunity. See Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009). Taylor attempts to do so by arguing that “[i]t was clearly apparent after Jones that any physical intrusion
upon a vehicle for the purpose of obtaining information of its activities without a warrant constitutes a Fourth Amendment violation.” We disagree. Although there need not always be “a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Hughes, 138 S. Ct at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). Jones did not do that. Jones relied on a common-law trespass theory to hold that attaching a GPS tracker to a car to monitor its movement is a search. 565 U.S. at 404–05. But a question remained whether, at common law, a de minimis or harmless trespass to chattels, like putting some chalk on a tire, gave rise to a cause of action for trespass. See Taylor I, 922 F.3d at 332–33 (noting that “Jones does not provide boundaries for the meaning of common-law trespass” and resorting to the Restatement (Second) of Torts to conclude that tire chalking, “regardless of how slight, constitute[d] common-law trespass”); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts 87 (5th ed. 1984) (noting that “[w]here the defendant merely interferes without doing any harm . . . there has been a division of opinion among the writers, and a surprising dearth of authority” regarding whether the owner can maintain an action for trespass to chattels); 2 William Blackstone, Commentaries *153 (noting that “the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained” (emphasis added)). Thus, every reasonable parking officer would not understand from Jones that suspicionless chalking of car tires violates the Fourth Amendment. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Accordingly, Hoskins is entitled to qualified immunity.
V.
For these reasons, we reverse the court’s grant of summary judgment regarding the City and Hoskins, grant qualified immunity in favor of Hoskins, and