A judge has ordered the Mobile Police Department to return four tow trucks it seized from a local business related to a handful of tenuous criminal charges filed against the owners.
Circuit Judge Wesley Pipes handed down the order Monday, which instructed the Mobile County District Attorney’s office and MPD to “immediately’ return the trucks to Gary Smith Jr. and Gary Smith Sr. At least initially, though, the department did not comply on orders from MPD Chief Lawrence Battiste.
As Lagniappe has reported, the Smiths — owners of SOS Towing — have been fighting to have their trucks returned and save their business from going under completely. The vehicles, worth hundreds of thousands of dollars, were seized in September after both Smiths were charged with insurance fraud.
As the owners of SOS Towing, the Smiths are accused of charging motorists for services that are not allowed under a city ordinance that sets rates for companies working directly for MPD. At the time of the alleged violations, SOS was one of dozens of local wrecker services on a rotating list called to accidents MPD responds to. It was also one of five companies briefly suspended from that list in August.
Despite other companies being publicly accused of similar violations — and the city’s acknowledgment that its ordinance was so outdated and confusing that even MPD’s own employees couldn’t manage to properly follow it — SOS has been the only towing company to face any kind of criminal charges.
Because some of the charges SOS billed for fell outside what the city ordinance allows wrecker services on MPD’s list to charge, and those charges were subsequently presented to an insurance company, prosecutors have maintained the Smiths committed insurance fraud.
However, they have also conceded that there is no precedent for bringing state fraud charges against a company based on a city ordinance.
Shortly after their criminal cases were filed against them, the Smiths asked the judge overseeing them to return the trucks while the case was pending so they could continue to run their business.
Prosecutors then filed a civil forfeiture action the night before a scheduled hearing on their request, which put the matter out of the criminal court’s jurisdiction and before Judge Pipes in civil court.
Last month, Pipes considered a petition from the Smiths seeking a temporary restraining order that would compel MPD to return the trucks until the case resolved — claiming that without them, they would be unable to earn a living or fund their legal defense. The Smiths argued, and Pipes agreed that, even if they were to win the case and get the trucks back in a few months, SOS would already be out of business.
While Pipes seemed to sympathize with the Smiths’ predicament he ruled against their initial TRO request because Alabama’s civil forfeiture laws allow defendants to pay a bond equal to two times the value of the contested property so it can be returned to them while the court makes a final decision.
The Smiths argued they couldn’t afford to pay a bond that high and, due to the nature of their case, no bonding company would be willing to front it for them. Pipes said they still had to at least try to obtain a bond before he would be willing to step in.
Earlier this month, the Smiths’ attorneys filed a motion asking Pipes to reconsider the TRO and included with it affidavits from Gary Smith Jr. and an employee of E-Z Insurance Agency Inc.
Both documents laid out the Smiths’ futile efforts to obtain a surety bond in order to have their trucks returned, claiming that several companies were asked and declined and the only one that responded required a collateral letter of credit with an approved bank. The trouble for the Smiths was it’s hard to get a bank loan without income and its hard for tow trucks to earn income sitting in MPD’s impound.
“[The Smiths] argue they’re in a ‘catch 22’ situation,” Pipes wrote in his recent order. “They can’t get a bond because they don’t have their trucks, and they cannot get their trucks because they can’t get a bond.”
Acknowledging that the Smiths had made a “reasonable” and “bonafide” effort to obtain a bond and follow the steps set out in Alabama’s civil forfeiture statutes, Pipes intervened and ordered the trucks to be released “immediately” despite prosecutors’ objections and vows to appeal the ruling to a higher court.
In briefs filed last week, Assistant District Attorney Clay Rossi argued the trucks were seized as part of a criminal case and that the Smiths were trying to sidestep that procedure by asking for relief in civil court.
However, Pipes reminded Rossi that the state — not the Smiths — brought this case before him.
“It seems improbable that the four vehicles are subject to the court’s jurisdiction for the purpose of their ultimate disposition, but not for any other,” Pipes wrote in response.
Rossi also argued that MPD, despite being in possession of the vehicles, wasn’t part of the civil forfeiture proceeding and hadn’t been properly brought in as a party to the lawsuit. Pipes also rejected that argument, writing that the DA’s office and MPD are both “arms of the state.”
“In all forfeiture cases, the court has sufficient jurisdiction over the subject property to order it returned to the defendant regardless of whether the property is in the actual possession of the district attorney or a law enforcement agency,” Pipes wrote on Nov. 22. “The particular law enforcement agency, in this court’s experience, is never separately named as a party plaintiff.”
After the Smiths paid a court-ordered $5,000 bond and agreed not to participate in the MPD’s rotating list of wrecker services, Pipes entered a follow-up order Monday instructing the MPD to “immediately” release the trucks back to them.
However, according to members of the Smith family, getting the trucks returned from MPD has not been an immediate process, to say the least.
After arriving at MPD’s impound Monday afternoon, the Smiths were handed a note from personnel saying they would have to return to get the vehicles on Tuesday at 9 a.m. — a “direct order from Chief Battiste.”
On Tuesday, the Smiths were told they’d have to wait for MPD Attorney Wanda Rahman to arrive on scene and approve the release, which took a little over an hour, according to the Smiths.
Once they actually got to the trucks, all four had a dead battery, and according to the Smiths, the door lights had been left on inside of all four vehicles. As of around 10:15 a.m., the Smiths were in the process of jumping off two of the trucks so they could haul the others back to their shop on Ashford Road.
A hearing is scheduled in the Smiths’ civil case on Monday, Dec. 2. Lagniappe will continue to update this story as more information becomes available. You can read Pipes’ recent orders below:
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