A Decatur attorney said that police involvement in the repossession of the vehicle of Steve Perkins, who was shot and killed in his yard by a Decatur police officer Sept. 29 at about 1:50 a.m., was prohibited by law.

In response to a public records request Thursday, the Decatur City Clerk confirmed that no court orders were issued between midnight and 2 a.m. Sept. 29, and thus no order in which a judge authorized the police to assist in the repossession.

Security video from neighbors’ houses shows police officers present during the repossession.

The Legislature-approved official commentary that informs the statute governing vehicle repossessions in the state, Alabama Code 7-9A-609, explicitly states that the statute does not authorize law enforcement to assist in repossessions without judicial process, Decatur attorney Carl Cole of Cole Law Firm explained.

Perkins was killed by police when, according to the Decatur Police Department, officers accompanied a tow truck driver to Perkins’ residence.

“Officers arrived on scene and made contact with a tow truck driver who had attempted to repossess a vehicle from the 3900 block of Ryan Drive S.W. During the initial interaction, the homeowner pulled a handgun on the tow truck driver, who fled the scene. Officers made their way to the residence, along with the tow truck driver,” according to a police statement the day of the shooting.

According to state law, a secured party (that is, the vehicle’s financer), may take possession of the vehicle after a default on payments.

A secured party may proceed with repossession pursuant to a judicial process, that is, a court order, or “without judicial process, if it proceeds without a breach of the peace.”

“The code section is vague as to what a ‘breach of the peace’ means,” said attorney Carl Cole of The Cole Law Firm in Decatur. “In fact, it’s not defined.”

Cole has been an outspoken critic of the response of city leaders in the wake of Perkins’ death and has participated in some of the protests.

“But the official comment underneath the code section by the Legislature, while it also agrees that it’s vague, points to what the courts have done in interpreting ‘a breach of the peace,’” Cole said.

The Legislature’s comment, printed in Michie’s Alabama Code, a reference book approved by the Alabama Code Commissioner which contains the complete text of the Code of Alabama, leaves the definition of a breach of the peace for continuing development by the courts.

“The code section goes on to say that there’s several cases that talk about a prohibition against the use of a law enforcement officer without the benefit of judicial process, which essentially means if the tow truck company goes and gets a court order, and law enforcement is directed out there, it implies that’s OK,” Cole said.

“But I think it more than implies — it’s fairly explicit — that law enforcement is not to be involved in a repossession without judicial process.”

Records show there was no judicial process the morning Perkins was killed authorizing police involvement.

“And the tow truck driver himself and, by extension, the police — according to the comments — are not to go forward with a repossession if there’s a breach of the peace,” Cole said.

Case law shows that a breach of the peace can be as simple as passive physical resistance or a vehicle owner banging on the window of the vehicle, according to Cole.

“It’s hard for me, looking at the official comment, to argue that the repossession attempt by the tow truck owner, after having some resistance to it by Perkins, should have continued,” he said.

“And the official comment by the Legislature to the statue seems to make it very clear that law enforcement involvement absent a court order — they use the term judicial process — is not to take place.”

The official comment goes on to say that courts should hold the secured party responsible for the actions of others taken on the secured party’s behalf, including contractors — such as tow truck companies — engaged to repossess property.

“If it were me, I would have already filed suit against the tow truck company and issued discovery to start getting answers while we wait on ALEA,” Cole said.

Justin Shepherd, who watched much of the incident from his home across the street, said the tow truck driver departed the scene with Perkins’ vehicle after Perkin was shot and before an ambulance arrived.

— [email protected] or 256-340-2438.

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