Arlington, Va.—“If the government forces you to install a GPS device and can track your whereabouts, that is a search. But the Illinois Supreme Court ruled otherwise. That is why we are appealing this case to the U.S. Supreme Court,” said Robert Frommer, a senior attorney with the Institute for Justice (IJ).

IJ recently filed an appeal of the Illinois Supreme Court’s ruling to the U.S. Supreme Court in one of the most important Fourth Amendment cases in the nation. The Fourth Amendment protects Americans from unreasonable searches by the government.

The case arises out of Chicago, which—unlike the rest of America’s ten largest cities—bans food trucks from operating within 200 feet of a restaurant. To enforce its 200-foot ban, Chicago requires food trucks to install GPS devices that transmit a truck’s location to the city every five minutes. Food trucks cannot refuse this mandate, nor may they ask a court if the requirement is permissible. Under this scheme, Chicago officials can pore over at least six months of a truck’s location data to root out any “illegal competition.”

In May 2019, the Illinois Supreme Court ruled that the 200-foot ban and GPS requirement were constitutional. The court concluded that Chicago could discriminate against food trucks to “level the playing field” for the benefit of politically powerful brick-and-mortar restaurants. The court then held that Chicago’s GPS scheme was entirely exempt from constitutional scrutiny because food truck owners must agree to it in order to get a license. The court also held that even if GPS tracking requires scrutiny, Chicago’s scheme was reasonable because the city could use it to locate trucks for inspections, even though the city admitted to never using GPS tracking for that purpose.

“The Illinois Supreme Court’s ruling creates a new, grave threat to the Fourth Amendment protections not to be searched against your will. This ruling threatens the privacy of all Americans, not just those who operate food trucks,” Frommer said. “Under that court’s ruling, the government could force anyone who needs a government-issued license to submit to invasive GPS tracking or other surveillance. This runs headlong into the basic constitutional principle that the government cannot force you to choose between your right to earn an honest living and your right to be free from unreasonable searches.”

Chicago’s 200-foot ban is designed to make it nearly impossible for food trucks to operate in any prime locations that they seek to serve, such as the North Loop. Chicago’s restrictions mean that food trucks may legally park and operate at just 3% of the curbs within the Loop.

“Food trucks that park any closer to a restaurant can be fined up to $2,000—ten times the fine for parking in front of a fire hydrant, which only underscores the economic protectionism at play here,” said IJ Attorney Joshua Windham.

Represented by the Institute for Justice, Laura Pekarik, the owner of the Chicago-based Cupcakes for Courage, filed suit in 2012 to challenge Chicago’s food truck laws. Pekarik said, “The Chicago rule and the Illinois Supreme Court’s ruling treat innocent business owners worse than criminals. All I want to do is earn an honest living, but the government says I must be tracked in order to do that. That’s beyond creepy. It is unconstitutional. I thought the government wasn’t supposed to be allowed to do those kinds of things in this country. I thought that’s why we have the Constitution—to protect us from government snooping.”

Chicago officials admitted they enacted the 200-foot ban to protect brick-and-mortar restaurants from competition—an improper use of government power, which sparked the Institute for Justice’s lawsuit on Pekarik’s behalf and its appeal to the U.S. Supreme Court.

Scott Bullock, the president and general counsel of the Institute for Justice said, “The U.S. Supreme Court must repudiate the Illinois Supreme Court’s decision and better protect the rights of Americans where modern surveillance technology threatens basic Fourth Amendment protections against such unconstitutional searches.”

For more information on this case, visit: https://ij.org/case/chicagofoodtrucks.

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