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Sixth Circuit Amends “Chalking” Decision to Clarify Scope

Earlier this week, the Sixth Circuit issued a decision addressing a constitutional challenge to the practice of “chalking” the tires of parked cars for parking enforcement purposes. As we noted, that decision garnered a lot of attention from the national media.

Yesterday, the Court issued an amended opinion clarifying the scope of its ruling. The amended opinion contains the following new paragraph in its conclusion:

Taking the allegations in Taylor’s complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement—the “community caretaking” exception and the motor-vehicle exception—do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.

While the Sixth Circuit has thus held that chalking constitutes a “search” under Jones, the amended opinion stops short of declaring that such “searches” will always be unreasonable (or never fall under an exception to the warrant requirement).

The amended opinion thus tees up a debate over the “reasonableness” of the search on remand. Long story short: Ms. Taylor has survived the motion-to-dismiss-stage, but she has not yet evaded the parking authorities.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 116

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About this Author

Scott Coyle Government Investigations Litigation Attorney Squire Patton Boggs Cincinnati, OH
Senior Attorney

Scott Coyle’s practice focuses on government investigations, white collar criminal defense and appellate litigation. He has successfully represented clients in high-profile criminal investigations and administrative proceedings and has extensive experience drafting briefs in state and federal appellate courts. He also advises clients on compliance with US trade sanctions programs and the Foreign Corrupt Practices Act (FCPA).

Prior to joining us, Scott was a litigation associate with full-service law firms in Washington DC and San Francisco. He represented elected officials and...

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Lauren S. Kuley Appellate & Supreme Court Attorney Squire Patton Boggs Cincinnati, OH
Partner

Lauren Kuley is co-chair of the Appellate & Supreme Court Practice. She leads complex appeals and critical motions practice in courts nationwide. She simplifies complex issues and develops creative arguments to curtail legal disputes and overturn bad outcomes. Deploying this strategy, Lauren has argued and won reversals of significant verdicts on appeal and obtained dismissal of high-stakes claims at the pleading stage in federal courts. In the US Supreme Court, Lauren authored the briefs leading to a unanimous reversal for a Fortune 500 company. Lauren previously served in the Ohio Solicitor General’s office and as a law clerk for Judge Karen Nelson Moore of the US Court of Appeals for the Sixth Circuit. She graduated magna cum laude from Harvard Law School and Harvard College.

Lauren is an adjunct professor at the University of Cincinnati College of Law, where she teaches the Sixth Circuit Appellate Clinic and represents indigent individuals. She also is a contributor to the firm’s appellate group’s Sixth Circuit Appellate Blog. In addition, Lauren serves on the Executive Board for the Federal Bar Association of Cincinnati/Northern Kentucky, which supports relationships between the federal judiciary and the federal bar, and is president of the Harvard Law School Alumni Association of Cincinnati.

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