The business arrangement backfires, however, when the people who normally winch someone else's vehicle onto a dolly or flatbed find a rival firm hauling away their trucks. That's what happened to Gary Smith Sr. and Gary Smith Jr. on Sept. 17, 2019, in Semmes, Alabama.
The father and son, co-owners of SOS Towing Inc., lost their entire fleet in the same moneymaking scheme that their family business has helped run for years with the Mobile police department. Call it irony. The secretive government program, built around civil forfeiture laws that multiplied in the 1980s, sometimes starts with allegations of drug possession, DUI or other crimes. But agencies do not need a conviction or even an arrest to take and permanently keep someone's cash, jewelry, vehicle or other property.
Prosecutors in Alabama must only demonstrate to the court's reasonable satisfaction that seized assets are related to criminal activity. The standard essentially means 51% probability — slightly better than a coin flip — and far below the criminal burden of proof beyond a reasonable doubt.
The rigged law is bad news for the Smiths, who must prove their innocence rather than the other way around. The high-stakes game works differently in each jurisdiction across the United States, but the general pattern remains the same. Once police take custody of an asset, they plod toward forfeiture in four phases. A 2019 study from the Institute for Justice finds that the primary motive is profit.
Cripple the Target
Taking permanent control of seized property starts by hitting the target financially. People need cash to mount a defense against the government, which never seems to run out of resources. Police stymie many claims simply by locking up people's life savings and cutting off their ability to earn a living. Property owners with limited resources often settle out of court or walk away.
By the time police showed up to take the Smiths' vehicles, the Mobile police already had suspended SOS Towing from its call rotation list for two months. The company spent the next 10 weeks with no means of income at all — only mounting expenses.
Prosecutors sometimes boost their financial advantage by filing criminal charges, which force property owners to fight on two fronts. The tactic has worked well against the Smiths. On the same day that officers came for their fleet — four vehicles worth about $265,000 — the city also accused them of insurance fraud totaling $340.
The imbalance might seem striking, especially in the aftermath of Timbs v. Indiana, a U.S. Supreme Court ruling against overeager prosecutors who claimed that Eighth Amendment protections against excessive fines do not apply at the state level. The justices disagreed in a unanimous ruling on Feb. 20, 2019. The case involves the attempted forfeiture of a Land Rover worth about $42,000 following a first-time, small-scale drug offense.
The proportions might be even further out of whack in Alabama, despite additional counts against the Smiths that have raised the alleged fraud to about $13,000. The judge overseeing the criminal case remains highly skeptical, calling the evidence against the Smiths "very weak." Part of the problem with the charges, which relate to the collection of unauthorized or inflated fees, is that government officials were doing the same thing at the police impound yard.
Unshaken by the hypocrisy, prosecutors have opted to persevere before a grand jury. In the meantime, the judge allowed the Smiths to pay a $5,000 bond, hand over their titles as collateral and conditionally recover their fleet on Nov. 26, 2019.
Pile On the Abuse
The second phase in the scheme involves government harassment and intimidation designed to wear down resistance.
The Smiths discovered how low police can go when they showed up to retake possession of their trucks on the appointed morning. Lot custodians had left the doors ajar in each vehicle, causing the dome lights to stay on and draining the batteries. The sabotage caused a two-hour delay, but the Smiths finally were able to leave with everything in tow.
Other agencies use less juvenile tactics to achieve the same effect — especially when people cannot afford an attorney. Cryptic laws, strict deadlines and jargon-filled demand letters can overwhelm anyone unfamiliar with the system. Prior to an Institute for Justice lawsuit in Philadelphia, Sourovelis v. City of Philadelphia, prosecutors routinely lured property owners to a courtroom without protection from a judge, jury or friendly counsel and then hit them with a stack of legal documents.
Run Out the Clock
The third phase of forfeiture involves running out the clock. The longer the process goes, the more desperate people become. The strategy works like a siege, where military forces surround a city, cut off essential supplies and wait for surrender. The Smiths have felt the pressure mount during their ongoing ordeal in Mobile. Even after city prosecutors lost an initial ruling in the civil case, they extended the matter with an appeal to the Alabama Supreme Court. Many other targets of civil forfeiture grow frantic when they lose their working capital or means of transportation.
The mere threat of delays creates powerful leverage for police to obtain quick settlements. Michigan state police in Wayne County, for example, took cars from 380 people on the flimsiest of excuses in 2017. None were ever charged with crimes, but most paid $900 settlements to avoid months of pain. Some people simply can't live without transportation, and police know it.
Targets like the Smiths who insist on their day in court must often wait months or years for resolution. When victory finally comes, agencies implement the final phase of their scheme: Sidestep accountability.
Innocent property owners who win still lose in most cases because they must pay for their own defense. Governments risk nothing. They use the threat of litigation costs to their advantage, especially in cases in which attorney fees outweigh the value of seized assets.
Nationwide, law enforcement agencies rely on the four-pronged attack to generate billions of dollars in revenue for police perks like overtime, travel and equipment. Some states direct the money to public schools or general budgets to limit the profit incentive. But Alabama and 28 other states, plus the federal government, allow police to keep 100% of civil forfeiture revenue for itself.
Measuring the extent of the problem in Alabama is tricky because the state does not require its agencies to track or report forfeitures or related expenditures.
Police need tow trucks and other tools to do their jobs. They don't need civil forfeiture. Property sold at auctions should come from criminals who receive due process, not innocent third parties or others caught in a pernicious government trap.
Daryl James is a writer at the nonprofit, public-interest law firm Institute for Justice.
Disclosure: The Institute for Justice represented Tyson Timbs in Timbs v. Indiana, and Philadelphia property owners in the Sourovelis v. City of Philadelphia class action lawsuit filed in the U.S. District Court for the Eastern District of Pennsylvania.
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