Local experts are split on whether there are legal issues involving a new Mobile Police Department policy to seize and board up private residences where the suspected sale of drugs and other illegal activity takes place.
MPD officials have boarded up two homes they labeled as drug nuisances, since Chief James Barber first announced the plan last month. MPD is going after properties where multiple arrests have happened and multiple search warrants have been executed.
“Just off the top of my head that seems completely wrong,” attorney Dom Soto said of the porcess. “When I heard about it I thought, ‘I don’t think so.’”
Soto said an individual should be found guilty in court before they can be kicked out of their home.
The first such home was that of 61-year-old Carolyn Shavette James. Undercover officers had previously made purchases of cocaine and marijuana at the residence, before the house was boarded up on May 29.
Carolyn James was arrested for possession of cocaine and spice. The suspect’s uncle, Edward Louis James was served with civil court papers related to a temporary restraining order that allowed the MPD to seize the house.
Under an agreement reached during a hearing on June 4, Edward James gave the MPD 30 days to inspect the property and said he’d work to get it up to code. He also agreed to not allow his niece back onto the property.
City attorney Ricardo Woods said due process is taken into account when a temporary restraining order is requested from a Mobile County Circuit Court judge.
“We have to present evidence in court before we put a single nail in the house,” he said.
Woods said the restraining order is good for 10 days, not counting weekends, before a hearing is scheduled and a preliminary injunction is sought in the case. While the restraining order request can be completed without the defendant present, the injunction hearing must include the person named in the court order.
Woods called the process “a creative way to fight crime.”
Soto said an attorney could challenge the process in court and probably be successful.
“Sooner or later they’re going to run into someone who knows constitutional law,” Soto said.
City crews boarded up a nuisance house again on June 17. The property in this case was home to a “skin house” at 1303 Juniper St., so named for the type of gambling card game played there, Barber said at the time.
A recent operation, known as “Bottoms Up,” resulted in 24 arrests at the house as well as the seizure of 67 bottles of liquor, various types of drug paraphernalia and gambling equipment.
A hearing in this most recent case is scheduled for Monday, June 30 in circuit court. Barber said the property owner will be allowed back in the house if the residence is brought up to code and the individuals responsible for the illegal activity aren’t allowed to return.
Attorney Edward Gordon said the new MPD policy is “doable” under the state’s nuisance law. He said the nuisance law is a common law theory that says your property can’t unreasonably bother others.
“For example, at my office I could erect a massive tower with lights and create a light nuisance,” he said.
However, there’s no statute that refers specifically to the idea of a drug nuisance, Gordon said, but if it bothers others it could be considered a nuisance under state law.
There are a couple of legal avenues for defendants in these claims, Gordon said. For one, the accused could argue the home isn’t a nuisance, or state that the temporary restraining order was entered incorrectly. Civil law protects the property owner if they they’re right and the city is wrong, Gordon said. In that case the defendant would be entitled to the cost of attorneys fees and the recovery of any damages caused to them.
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