Utah Free Press

Utah Attorney General Issues Statement on Booting

September 21st, 2008 by Richard Okelberry - Following some of the recent controversy surrounding Vehicle Booting on private property here in Logan, Utah, I decided to look a little closer at the law.  After researching applicable Utah State Statutes I concluded that this activity might not be completely legal and eventually ended up writing the State’s Attorney General for a clarification of the law.  Because the State Attorney General’s office is charged with issuing legal opinions to specific government authorities only, I truly didn’t expect a response on this issue.  To my surprise and delight the Attorney General’s office did look into the issue and replied with a well researched statement.  I should note that this is not an “official” opinion of the State Attorney General’s office but merely a statement.  Still, I must say that I am extremely grateful because this statement gives us a strong insight into how the issue might be treated by the courts.

For those not familiar with the issue; “Booting,” also known as a Denver Boot or Clamping, is the practice of immobilizing a vehicle for various violations by placing a device over one of a vehicle’s wheels.  While the Boot was invented back in 1953, it was not broadly used until more recently by law enforcement as an alternative to towing vehicles that are either illegally parked or in violation of other ordinances, like excessive overdue parking tickets.  What has changed is the fact that private property owners have begun using the device to immobilize vehicles parked on their property against owner posted parking restrictions.  Private parking areas that enforce parking restrictions by booting have widely become known as Boot Lots.

In two separate letters to the Logan City Council I urged the city council to use caution when regulating this practice.  While it was well within their right to do so as expressed by a Federal Appeals Court in Millet v. Logan, I feared the practice of booting might be in violation of State Statutes against Theft and Extortion.  It appeared to me that absent a clear exception for booting at the state level, the laws prohibiting unlawfully taking another person property and worse holding that property with the threat of further legal action against payment was in violation of state laws.  After some further research, I discovered that there was an allowance under state Towing laws that did allow a property owner to place a “possessory lien” against another’s property.  I theorized that booting companies must be treating booting as a form of towing and therefore felt justified in placing a possessory lien against the vehicle.

While this seemed logical, I also noticed that while the booting company was enjoying the rights allowed under the law to place a possessory lien, they were failing to comply with the rest of the state statutes concerning towing which require among other things, notification of law enforcement and State licensing of its agents.  Eventually, I contacted the State Attorney Generals office to help define how under the current state laws, booting on private property was legal.

In response, the Utah State Attorney General’s office issued the following statement (not to be confused with an official opinion):

RIGHT OF REAL PROPERTY OWNERS TO REGULATE TRAFFIC

Utah law allows the owner of real property used by the public for the purposes of motor vehicle travel, with the permission of the owner, to regulate the use of the property Utah Code Ann. 41-6a-215.  This would include the action of private owners, upon proper notice to the public, assuring compliance with its rules prohibiting unauthorized parking by “non residents” by vigorous use of traditional common law remedies Forest Hills Gardens Corp v. Baroth, 147 Misc. 2d 404.  The use of a “booting” program falls well within the self-help ambit of “rigorous use of traditional common law remedies” Id…

…A landowner is authorized/privileged to commit an act which would otherwise be a trespass to chattle or a conversion if the act is, or can be reasonably believed to be necessary to protect the owner’s land or chattles and the harm inflicted is not unreasonable as compared to the harm threatened Restatement (second) of Torts 260(1).  The application of a “boot” may be an “interference” with the property of the trespasser however, the owner of the property is privileged to protect their right to exclusive possession of the property (lot) by such application, Kirschbaum v. McLaurin Parking Co., 656 S.E. 2d 683 (North Carolina 2008).

-          SHEILA PAGE, Assistant Attorney General, State Agency Council. (excerpt above) (entire text)