Search About Donate
Police officers walk up to a vehicle in Milwaukee in 2014.
Commentary

Forget The Ticket — Could You Get Arrested For A Parking Violation?

Supreme Court lets stand lower court ruling extending pretextual stops to parking infractions.

If you park your car in an unlawful spot or leave it running outside the pavement lines while dashing into a store, you certainly risk getting a ticket. But you could also be handing police probable cause to seize your vehicle—and, if they find something suspicious, risking arrest and jail.

That’s the gist behind Johnson v. United States, a case from the Seventh Circuit Court of Appeals asking if a parking violation creates enough suspicion of criminal conduct for police to surround the car, escalating to arrest or jail. Last week, the Supreme Court declined to hear an appeal, leaving the Seventh Circuit ruling as the prevailing law.

How did we get here? First, there’s the pretextual stop, which gives officers the power to pull you over based on a motor vehicle or traffic violation. Twenty years ago, a unanimous Supreme Court held in Whren v. United States that a failure to put on a turn signal was a legitimate basis for a police stop. The Court reasoned if officers had probable cause that a traffic violation had occurred, it was improper to probe the officers’ pretextual motives for the stop.

A few years later, in Atwater v. City of Lago Vista, by a 5-4 vote the Court upheld an arrest for a seatbelt violation normally punishable only by a fine. Justice Sandra Day O’Connor dissented, citing the “recent debate over racial profiling” and arguing the Fourth Amendment required officers to have a reasonable and proportionate response to the offense charged.

With a parking violation, there is no legitimate law enforcement need to seize the car or its passengers—typically, an officer leaves a ticket on the windshield since the car is already stopped. But a majority of judges on the Seventh Circuit Court of Appeals disagreed.

It was a January evening in Milwaukee, with a wind chill of 20 below. Five officers in two patrol cars came upon a car in front of a liquor store, parked seven or eight feet from an unmarked crosswalk. The driver had momentarily parked while running in to make a purchase. The officers believed the car might be parked too close to the crosswalk under state law. But a $30 parking violation escalated into a full-fledged criminal probe.

The officers were part of the Milwaukee Police Department’s since-disbanded Neighborhood Task Force Street Crimes Unit, assigned to “look for smaller infractions and hope that possibly they may lead to bigger and better things,” in the words of one officer.

Opening Statement

Sign up for our daily newsletter covering the best in criminal justice news.

After surrounding the parked car with two patrol cars, the officers approached on foot, seeing occupants in the car. An officer described one, Randy Johnson, moving as if trying to hide something. All the occupants were pulled out and handcuffed. One officer saw a gun on the floor. Johnson, who had a prior felony conviction and who police had reportedly sought in connection with another crime, was arrested for possessing a weapon.

At his trial, Johnson sought to exclude evidence of the gun, arguing that having five officers descend on the car simply because it was parked near a crosswalk was an unreasonable seizure under the Fourth Amendment, tainting the rest of the encounter.

The Seventh Circuit affirmed the trial judge, who determined that Supreme Court precedent permitted police to seize the parked car regardless of their underlying agenda. In a stinging dissent, Judge David Hamilton, joined by two colleagues, found no compelling basis to extend pretextual stops to parking violations.

Though Johnson did not raise race as an issue, racial disparities in policing are critical to Fourth Amendment analysis, as Justices O’Connor and Sonia Sotomayor have recognized in other cases. Black drivers are more likely to be stopped, ticketed, and searched than white drivers and are stopped more often for violations other than speeding, like a vehicle defect or record check. In Milwaukee, where Johnson was apprehended, Black drivers are seven times as likely to be stopped by police as white drivers and are searched twice as often.

Hamilton had urged the Supreme Court to consider whether invasive police intrusions should become “a routine part of American life” in parking enforcement. But the Supreme Court denied the appeal — though that doesn’t mean the Seventh Circuit got it right. True, the Seventh Circuit’s decision now stands, but other circuit courts may yet decide the same issue differently.

Still, it is concerning that at least four justices did not demand appellate review. When it’s freezing outside and you pull over to run into a store, you shouldn’t have to fear being swarmed by police for hasty parking. That simply is not a reasonable response—under common sense or the Fourth Amendment.

Katy Naples-Mitchell is a Research Fellow at the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School. She may be reached at knaplesmitchell@law.harvard.edu