The Alabama Supreme Court has sided with prosecutors in a closely watched civil forfeiture dispute involving a Mobile County towing company, reversing a lower court’s attempt to lower the bond required for a family-owned business to reclaim seized tow trucks — even as several justices expressed unease with how the state’s forfeiture law can affect small businesses.
The case stems from a September 2019 investigation by the Mobile Police Department into towing companies accused of charging fees above what is allowed under a city ordinance. Gary Smith Sr. and his son, Gary Smith Jr., who own SOS Towing, were arrested on insurance fraud charges as part of that investigation. Prosecutors subsequently moved to seize four of the company’s tow trucks under Alabama’s “fruits of crime” forfeiture statute, which allows law enforcement to take property believed to be connected to criminal activity.
Under state law, a person facing forfeiture can regain possession of seized property while the case is pending by posting a bond worth twice its value. The Smiths argued they had tried and failed to secure that bond — reported at roughly $192,000 — because they could not use the trucks themselves, which remained in the state’s possession, as collateral, and because the seizure had cut off the income the trucks would normally generate.
Mobile County Circuit Judge Wesley Pipes agreed the seizure had put SOS Towing’s viability at risk and set a lower bond of $5,000, allowing the company to get its trucks back while the forfeiture case proceeded. The state appealed, and the Alabama Supreme Court reversed that decision Friday, ruling that the double-value bond set out in state law is “the exclusive means” for a business or individual to recover seized property during a pending forfeiture case, and that a judge does not have the authority to substitute a lower bond or an injunction instead.
Although the full court agreed on the outcome, Justice Tommy Bryan wrote separately to flag what he called troubling aspects of the case. He noted that Mobile County Assistant District Attorney Chris McDonough had, on his own initiative, found a surety company willing to write a bond for SOS Towing at a premium of up to $30 per $1,000 of the bond amount, depending on creditworthiness. Even so, Bryan wrote that the financial burden actually facing SOS Towing “is unclear,” and that evidence suggested obtaining the bond “presents a considerable challenge” for the company, which could go out of business without its trucks. Justices Sarah Stewart and Kelli Wise joined his special writing.
Bryan questioned whether state lawmakers, when they wrote the double-value bond requirement into law, intended for a small business to potentially collapse simply because it struggled to come up with the money to recover property before a forfeiture case is ever decided. “Although I must conclude that the law requires the result reached by the main opinion, the Legislature may want to consider if that is the result it anticipated in adopting the double-value bond provision,” he wrote.
Civil asset forfeiture allows law enforcement agencies to seize and eventually take ownership of cash, vehicles or other property they believe was purchased with proceeds from illegal activity or used to facilitate a crime — even when the property’s owner is never criminally charged. If a court approves the forfeiture, the state can keep the property or sell it at auction, with proceeds typically divided between the law enforcement agency and the prosecuting office involved.
The practice has drawn increasing scrutiny in Alabama and nationwide in recent years. A 2018 report from the Alabama Appleseed Center for Law and Justice examined nearly 1,600 civil forfeiture cases across the state and found prosecutors prevailed in about 79 percent of them, with more than $5 million in cash and property changing hands from private citizens to law enforcement. The same report identified Mobile County as the state’s leader in forfeiture activity in 2015, with law enforcement there obtaining 129 weapons, 30 vehicles, dozens of electronic devices and more than $565,000 in cash — and found that in 29 percent of Mobile County cases, the property owner was never charged with a crime.
Lawmakers took up the issue in 2019, considering legislation that would have barred agencies from taking permanent ownership of seized property until after a criminal conviction. That proposal was scaled back before passage, ultimately creating a statewide database intended to track forfeiture cases and improve accountability. Gov. Kay Ivey signed the narrower measure into law that year.
The Smiths are not the only Mobile-area towing company owners facing scrutiny from the fee investigation. The Mobile County District Attorney’s Office has pursued similar criminal charges against other tow truck operators, with four additional arrests made in June. It is unclear whether forfeiture proceedings have been initiated against any of those other defendants.
Mobile County District Attorney Ashley Rich said her office’s ability to move forward on the pending cases has been slowed by the COVID-19 pandemic, and that prosecutors are waiting to see whether SOS Towing appeals the Supreme Court’s decision before deciding how to proceed against the other towing companies. “We will act accordingly, that’s all I’ll say,” Rich said, adding that the high court’s ruling confirmed prosecutors’ position was correct.
Attorneys for the Smiths did not comment on the ruling. The case now returns to Mobile County Circuit Court for further proceedings.