Pulaski County Circuit Judge Chris Piazza urged a tow-truck driver and Arkansas State Police to try to work out their differences on how the agency chooses wrecker services, while he decides over the next month whether to throw out the driver's lawsuit against the agency.
At issue is the legality of the state police practice of refusing to use wrecker drivers who have felony convictions.
The agency maintains that the prohibition is necessary to ensure the public's confidence in tow-truck drivers that troopers call to assist them.
Piazza said he could see where troopers would not want to force someone stranded on the side of the road to have to do business with someone who has been convicted of committing violent acts.
But he questioned whether state police have imposed a regulation on wrecker drivers that's beyond what the law allows.
"I think there's a real easy solution" that respects police interests and individual rights, the judge said Tuesday. "Let's see if we can settle this along those lines."
He said he'll convene a hearing next month to announce his ruling in the case.
Police attorney Mary Claire McClaurin told the judge that state police are entitled to set standards for tow-truck drivers that troopers call to wreck sites.
"If you want to be on our list, you have to follow our rules," McClaurin said.
She rejected the idea that the standards that police impose on tow-truck drivers could be considered a regulation because nothing the agency does prohibits them from working anywhere else. No driver has a right to provide towing services to the state police, McClaurin told the judge.
McClaurin said the lawsuit should be thrown out because the police are protected by sovereign immunity.
Attorney Bob Newcomb, representing Steven James Gafner of Steve's Auto Center of Conway, said his client is entitled to sue because he's been harmed by the agency's rule.
Gafner sued the state police in September after the agency refused to put him on its rotating wrecker-call list for Faulkner County.
Gafner is asking the judge to order the state police to end the felon ban, to put Gafner on the wrecker rotation list and to develop a procedure for considering driver applications on a case-by-case basis.
The prohibition on all felons, no matter how long ago they were convicted, violates Gafner's constitutional right to due process and contradicts Arkansas' policy on reforming felons, Newcomb said.
Steve's Auto meets all of the requirements set by the state Towing and Recovery Board, which regulates the industry.
Gafner, 47, has been a wrecker driver for 20 years and has worked for other police departments during that time, Newcomb said. His parole ended in 2005, the attorney said.
Under the Arkansas licensing code, a felony conviction on its own is not enough to bar a felon from any state certification, license or registration -- except in the fields of nursing and teaching.
That statute, Arkansas Code 17-1-103, further requires that applicants with felony convictions be presumed rehabilitated if it's been at least five years since they completed their sentences and they have had no subsequent convictions, Newcomb said.
"We have a statute that says you can't have a blanket rule if you're five years out" of a criminal sentence, Newcomb said.
Gafner was convicted in 1995 in Pulaski County on charges of terroristic threatening, involving his ex-wife, and committing a terroristic act for shooting her fiance, according to his attorney.
The state police ban on felons violates the state's public policy on rehabilitation, as described in the statute, Newcomb said.
"It is the policy of the State of Arkansas to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful trade, occupation, or profession," Arkansas Code 17-1-103 states. "Such convictions shall not operate as an automatic bar to registration, certification, or licensing for any trade, profession, or occupation."
Metro on 02/16/2017