SPEAKERS CONTENTS INSERTS
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CITIZEN PROTECTION ACT OF 1998
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
ON
H.R. 3168
MARCH 12, 1998
Serial No. 138
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
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CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
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HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KERI FOLMAR, Chief Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel
C O N T E N T S
HEARING DATE
March 12, 1998
BILL TEXT
H.R. 3168
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OPENING STATEMENT
Hon. Charles T. Canady, a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Childs, Linda, Plattsburg, MO
Drimmer, Jonathan, Attorney, Washington, DC
Gerig, Jerry, Acworth, GA
Hagin, Leslie, National Association of Criminal Defense Lawyers
Hutchinson, Hon. Asa, a Representative in Congress from the State of Arkansas
Kerlikowske, R. Gil, Police Commissioner, Buffalo, NY
Mason, Jrae, Jackson Heights, NY
Read, Pamela, Coventry, RI
Roche, Armando, President, Professional Bail Agents of the United States
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Slaton, Frank, Bounty Hunter, Newport News, VA
Soltz, Edwin, Attorney, Overland Park, KS
Torricelli, Hon. Robert, a U.S. Senator from the State of New Jersey
Watson, Jerry, Counsel, National Association of Bail Insurance Companies
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Childs, Linda, Plattsburg, MO: Prepared statement
Conyers, Hon. John, Jr., a Representative in Congress from the State of Michigan: Prepared statement
Drimmer, Jonathan, Attorney, Washington, DC: Prepared statement
Gerig, Jerry, Acworth, GA: Prepared statement
Hagin, Leslie, National Association of Criminal Defense Lawyers: Prepared statement
Hutchinson, Hon. Asa, a Representative in Congress from the State of Arkansas: Prepared statement
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Kerlikowske, R. Gil, Police Commissioner, Buffalo, NY: Prepared statement
Read, Pamela, Coventry, RI: Prepared statement
Roche, Armando, President, Professional Bail Agents of the United States: Prepared statement
Slaton, Frank, Bounty Hunter, Newport News, VA: Prepared statement
Soltz, Edwin, Attorney, Overland Park, KS: Prepared statement
Torricelli, Hon. Robert, a U.S. Senator from the State of New Jersey: Prepared statement
Watson, Jerry, Counsel, National Association of Bail Insurance Companies: Prepared statement
CITIZEN PROTECTION ACT OF 1998
THURSDAY, MARCH 12, 1998
House of Representatives,
Subcommittee on the Constitution
Committee on the Judiciary,
Washington, DC.
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The subcommittee met, pursuant to notice, at 9:36 a.m., in Room 2141, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.
Present: Representatives Henry J. Hyde, Charles T. Canady, Bob Inglis, Ed Bryant, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, John Conyers, Jr., Robert C. Scott
Staff present: John Ladd, Counsel; Keri Folmar, Chief Counsel; Michael Connolly, Staff Assistant; Robert Corry, Counsel; Melanie Sloan, Minority Counsel
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. [presiding] The subcommittee will be in order.
Bail bondsmen and bounty hunters serve an important supplemental role in State law-enforcement efforts. After an arrest but before trial, most defendants hire bail bondsmen to post a bond with the court in order to secure the defendant's release. The State then, in effect, gives the bondsman legal custody of the defendant, and provides that the bond will be forfeited if the defendant fails to return to court as required. Bondsmen seeking defendants who either have fled or have missed a court date often employ professional bounty hunters who, acting on behalf of bondsmen, are vested with the bondsmen's powers.
These bounty hunters are generally considered to have the power to search for and arrest a defendant on bond similar to the power of a law enforcement official pursuing an escaped prisoner. Thus, generally bounty hunters need not obtain arrest or search warrants, need not ''knock and announce'' before searching, and need not seek formal extradition of captured defendants.
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The broad powers of bounty hunters to search and arrest a defendant on bond generally arise from common law and other case law, and the powers are considered to be derived from the bail bondsman's contract with the defendant. While abuse of these broad powers is by no means the norm, it has unfortunately become all too familiar. In fact, on our second panel today, we will hear from witnesses who have traveled long distances to tell us their personal accounts of such abuses. The stories they will tell are compelling and cannot be ignored by those of us in Congress who have the power to curb such abuses.
The focus of today's hearing is on H.R. 3168, the ''Citizen Protection Act of 1998,'' sponsored by Representative Asa Hutchinson. H.R. 3168 makes bail bondsmen and bounty hunters subject to the type of criminal and civil liability that state actors, such as police officers, are subjected to when violations of individual's constitutional rights occur.
For instance, the primary civil rights statute for civil liability, Section 1983 of Title 42 of the United States Code, provides for civil liability when a ''person, under color of state law, subjects a complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and law of the United States.''
H.R. 3168, the ''Citizen Protection Act of 1998,'' provides that for purposes of civil and criminal liability, a bail bondsman or a bounty hunter who seeks custody over a defendant released on bond is acting under color of state law. This is in line with a holding of the United States Court of Appeals for the Fourth Judicial Court.
Moreover, for purposes of civil or criminal liability, under H.R. 3168, a surety will be held responsible for a bounty hunter as if the bounty hunter was the agent of the surety. This provision is included in recognition of the fact that sureties are in the best position to monitor and control the activities of bounty hunters, and to ensure that bounty hunters do not engage in misconduct.
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Finally, a surety or bounty hunter who seeks physical custody over a defendant in a different State from the State where the defendant is bonded is required to alert local law enforcement, but only to the extent already required under the laws of that State.
It is my hope the ''Citizen Protection Act'' will not only afford unsuspecting victims of rogue bounty hunters and bail bondsmen a remedy when their civil rights have been infringed, but that the Act will also create an important incentive for bondsmen to exercise greater care in the hiring of bounty hunters.
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I want to particularly thank Representative Hutchinson for his leadership in fashioning this legislation. I look forward to hearing from him and all the other witnesses who will be testifying today.
Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman, and I commend you for holding the hearing on this very important subject. For years, bounty hunters have been violating civil rights of innocent people with impunity, and obviously that needs to stop.
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There is clearly too much latitude given to bounty hunters chasing fugitives. It is amazing that bounty hunters have the right to break into homes of citizens, handcuff people, drag them across State lines when we prohibit similar conduct from law enforcement officers. And then when bounty hunters abuse rights of innocent citizens, there is very little redress available to those citizens who have had their rights violated, and obviously that makes no sense.
In my own home district of Norfolk, Virginia, a bounty hunter mistook, in 1993, one lady for her sister although the two women do not look alike. The lady was leaving her mother's house when she was approached by a stranger who she did not know was a bounty hunter, she hurried to get in her van, she got inside, rolled up the window, and attempted to pull down the driveway, when the bounty hunter pulled a firearm and raised it to the van window. After a car chase, the lady sought refuge at a gas station where the bounty hunter caught her, handcuffed her, and threw her to the ground. A bystander called police who charged the bounty hunter with brandishing a firearm, and the bounty hunter charged Mrs. Taylor had attempted to run over him with her van. Unfortunately, situations like that are not unique. There have been various cases in which bounty hunters have overstepped the bounds and infringed on the rights of innocent people, and I hope that in today's hearing we'll learn about the extent of the problem and we'll look to see how we can solve it.
I look forward to the testimony of the witnesses, and I want to take particular note of Frank Slaton, a bounty hunter from Newport News, Virginia, my hometown, who, I understand, agrees with some of the protections that will be needed, and look forward to his testimony as well as the others.
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Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott.
We will go to our first panel, at least the first witness on our first panel. On our first panel this morning, we will hear from the Honorable Asa Hutchinson. Congressman Hutchinson, who sits on this subcommittee, represents the third district of Arkansas and is, as I said earlier, the primary sponsor of the ''Citizen Protection Act of 1998.''
We're also hoping to hear from the Honorable Robert Torricelli. Senator Torricelli, a former Member of the House, is currently serving his first term in the United States Senate from the State of New Jersey. I understand that the Senator is on his way, so hopefully he will be here to join us.
Representative Hutchinson, I thank you for your leadership on this issue. We look forward to hearing your testimony.
STATEMENT OF HON. ASA HUTCHINSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS
Mr. HUTCHINSON. Let me first express my thanks to the Chair, Mr. Canady, for his help, assistance and leadership in providing this forum for this very important issue. I'm grateful for the comments of Mr. Scott this morning, as he indicated that this is a serious problem. The ranking member of the Full Committee, John Conyers, has been supportive of this, and I recognize his presence here, and he's an original cosponsor of this bill. And I'm grateful for Mr. Hyde, Chairman of the Full Committee, for his interest in this and his leadership, as well.
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In the summer of 1995, Betty Caballero was beaten by a bounty hunter seeking to arrest Ruth Garcia in the State of Texas. Because of the beating, Betty miscarried her pregnancy the next day. Although she brought suit against the bail company for the violation of her civil rights, the judge found that the Federal civil rights laws did not apply to the case and exonerated the bond company from any liability for the bounty hunter's behavior.
This case, and many more like it, demonstrate so vividly why Congress must pass the ''Citizen Protection Act'' which is before us today. In fact, Mr. Chairman, I have a compilation of recent bounty hunter abuses here, and I would ask unanimous consent to insert them into the record.
Mr. CANADY. Without objection.
Mr. HUTCHINSON. This is a compilation of a series of stories of bounty hunter abuses across the country. These abuses have occurred in Virginia, Georgia, North Carolina, Tennessee, New York, California, Texas, Connecticut, Louisiana, Illinois, Utah, Arizona, Colorado, Ohio, Rhode Island, Kansas, and Iowa. And the point is, this is truly a national problem in scope.
Under current law, bounty hunters do not operate under the same standards required of law enforcement officers, standards which prohibit excessive force and hold abusive individuals liable for their misdeeds. Bounty hunters are free to break into the homes of people thought to be criminals without any accountability to innocent individuals who may be injured because of wrongful and abusive conduct. The bipartisan bill before us today holds bounty hunters and the bail bondsmen who employ them liable for civil rights violations. The bill also requires bounty hunters and bail bondsmen who travel in interstate commerce to recover a defendant to report their intentions to local law enforcement authorities and provide whatever information is required under that State's law. A number of States have adopted similar notification requirements and I believe it is appropriate to enforce these at the Federal level when interstate travel is involved.
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The Citizen Protection Act fulfills an important public safety goal, namely keeping innocent citizens safe from the abusive actions of rogue bounty hunters. And it does so—and I think this is important—without creating a new Federal bureaucracy or imposing any mandates on the States.
Many professional bounty hunters and bail bondsmen support regulation of their industry in order to drive out rogue actors who undermine the industry's reputation and credibility. In fact, in my home State of Arkansas, the chairman of the Arkansas Bail Bond Licensing Board has endorsed this bill, as has a board member of the Arkansas Professional Bail Association. Law enforcement agents have also been supportive of the notification requirement, arguing that they want to be aware of bounty hunter activities in their jurisdiction.
Mr. Chairman, I want to thank Senator Torricelli, who is here today, for his leadership and work on this issue on the Senate side, but I want to thank you again for holding this hearing and your strong leadership on this issue. I want to thank our witnesses who'll be appearing later today, many of whom have traveled long distances to tell their story. Thank you, Mr. Chairman.
[The prepared statement of Mr. Hutchinson follows:]
PREPARED STATEMENT OF HON. ASA HUTCHINSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS
In the Summer of 1995, Betty Caballero was beaten by a bounty hunter seeking to arrest Ruth Garcia in the State of Texas. Because of the beating, Betty miscarried her pregnancy the next day. Although she brought suit against the bail company for the violation of her civil rights, the judge found that federal civil rights laws did not apply to the case and exonerated the bond company from any liability for the bounty hunter's behavior. This case, and many more like it, demonstrate so vividly why Congress must pass the Citizen Protection Act.
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In fact, Mr. Chairman, I have a compilation of recent bounty hunter abuses here and ask unanimous consent to insert them into the record. These abuses have occurred in Virginia, Georgia, North Carolina, Tennessee, New York, California, Texas, Connecticut, Louisiana, Illinois, Utah, Arizona, Colorado, Ohio, Rhode Island, Kansas, and Iowa. This is truly a problem national in scope.
Under current law, bounty hunters do not operate under the same standards required of law enforcement officers—standards which prohibit excessive force and hold abusive individuals liable for their misdeeds. Bounty hunters are free to break into the homes of people thought to be criminals, without any accountability to innocent individuals who may be injured because of wrongful and abusive conduct.
The bipartisan bill before us today holds bounty hunters, and the bail bondsmen who employee them, liable for civil rights violations. The bill also requires bounty hunters and bail bondsmen who travel in interstate commerce to recover a defendant, to report their intentions to local law enforcement authorities and provide whatever information is required under that state's laws. A number of states have adopted similar notification requirements, and I believe it is appropriate to enforce these at the federal level when interstate travel is involved.
The Citizen Protection Act fulfills an important public safety goal—namely keeping innocent citizens safe from the abusive actions of rogue bounty hunters. And it does so without creating a new federal bureaucracy or imposing any mandates on the states.
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Many professional bounty hunters and bail bondsmen support regulation of their industry in order to drive out rogue actors who undermine the industry's reputation and credibility. In fact, in my home state, the chairman of the Arkansas Bail Bond Licensing Board has endorsed the bill, as has a board member of the Arkansas Professional Bail Association. Law enforcement agents have also been supportive of the notification requirement, arguing that they want to be aware of bounty hunter activities in their jurisdictions.
Mr. Chairman, I want to thank you for holding this hearing today, and for your strong leadership on this issue. I also want to thank our witnesses for appearing here today—many of whom traveled long distances to tell their story. Thank you again, Mr. Chairman.
A SAMPLING OF RECENT BOUNTY HUNTER ABUSES
PREPARED BY THE OFFICE CONGRESSMAN ASA HUTCHINSON
New York City, New York
In July 1994, Jrae Mason was sitting on the front porch of her Manhattan apartment building when she was approached by two men who believed her to be Audrey White Smith, a woman who had jumped bail in Tuscaloosa, Alabama. Despite her protests to the contrary, Ms. Mason was handcuffed and taken to the police station. Despite police verification that she was indeed who she said she was, the bounty hunters left the police station with her in their custody, kept her handcuffed for several more hours, and then turned her over to the Alabama bondsman at JFK airport. Upon arrival in Alabama, Ms. Mason convinced the local sheriff that she was the wrong person. Three and a half days and 910 miles later, the bounty hunters acknowledged their error and paid for a bus ticket to send her home. (Mason v. the City of New York, 949 F. Supp. 1068)
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Los Angeles, California
A Southern California vacation for a Rhode Island family came to an abrupt halt in October 1994, when two bounty hunters burst in on the family while searching for a bail-jumping prostitute. The bounty hunters kicked in the door of the family's motel room, screamed curses at the stunned family, threatened them at gun point, and held a gun against the mother's head until they realized she was not the fugitive they were after. (Orange County Register, August 4, 1995 and Los Angeles Times, August 16, 1996)
On February 17, 1998, two bounty hunters, attempting to capture a fugitive, shot an innocent bystander in the chest. The victim, David Villanueva was listed in grave but stable condition. The two bounty hunters were taken into custody but released the next morning after it was determined that the shooting was an accident. (Los Angeles Times, February 19, 1998)
Houston, Texas
In the Summer of 1995, Betty Caballero was beaten by a bail bondsman seeking to arrest another woman, Ms. Ruth Garcia. Because of the beating, Betty miscarried her pregnancy the next day. Although she brought suit against the bail company for the violation of her civil rights, the district court found that federal civil rights laws did not apply to the case and exoneratedthe bond company from any liability for the bounty hunter's behavior. (Betty R. Caballero v. Aamco Bail Bonding Company, 5th Circuit Court of Appeals, Case No. 97–20617)
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Des Moines, Iowa
In August 1997, two bounty hunters were convicted of second-degree burglary for raiding a home in search of a bail-jumper. They broke into the trailer of the Leach family in the middle of the night in the mistaken belief that a fugitive from justice was inside. This was the second ''mistaken identity'' blunder made by these same bounty hunters. (Des Moines Register, August 22, 1997)
Kansas City, Kansas
In April 1992, Dorothy Dean was getting ready for bed when two strangers broke into her home, handcuffed her, and took her to jail. The bounty hunters, who were hired by a bail bond company, arrested Dean for failing to appear in court on a drunken driving charge. Despite her protests that she was the wrong woman, Ms. Dean spent ten hours in the county jail. Although the bounty hunters eventually discovered that Dean was the wrong suspect, they would not give up. They forced their way into her home two days later and arrested her again. (The Kansas City Star, February 5 and 6, 1994)
In July 1992, a bounty hunter searched the home of Mark and Emma Edwards for a fugitive, despite the protestations of the couple. The bounty hunter did not find the individual for whom he was searching. In January 1997, a jury found that the bounty hunter did not violate the family's civil rights. (The Kansas City Star, January 4, 1998)
In March 1993, two bounty hunters handcuffed Lester Bishop outside a downtown bar, roughed him up and took him on a two-hour drive. They soon figured out they had the wrong man, but they didn't have the keys to the handcuffs. They ended up taking Bishop to a police station so police could free him. (The Kansas City Star, January 4, 1998)
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In January 1995, three bounty hunters broke down the door of Linda Childs in the middle of the night, injured her husband and sprayed her five and ten year old grandsons with mace during the ensuing confrontation. The bounty hunters were looking for the woman's son who had moved out three years prior. (The Kansas City Star, January 3, 1995)
In January 1997, two bounty hunters searching for a man by the name of William Hernandez broke in the home of Martin Tong and shot him in the leg, hand and ear. They were searching for a Hispanic man; the victim was African-American. The man sought by the bounty hunters had not resided at the address for over five months. (The Kansas City Star, January 4, 1997)
Memphis, Tennessee
In January 1998, two bounty hunters beat up a seventeen year old high school student they mistook for a man who had skipped out on bail. They were searching for Antonio Partee but got Victor Antonio Pritchard instead. (The Commercial Appeal, January 25, 1998)
Denver, Colorado
In July 1997, bounty hunter Terry Lee Merrill knocked on Robert Eye's door and asked for assistance with his car. When Eye walked out to help, Merrill pulled a gun, held it to Eye's head, ordered him to the ground, and handcuffed him. Escape Bail Bonds had hired Merrill to locate and arrest one Robert Mitchell despite the fact that Merrill had quite an extensive criminal record. (Rocky Mountain News, July 10, 1997 and Denver Post, July 10, 1997)
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In July 1997, four armed bounty hunters burst into a motel room in Lakewood, threw two innocent people on the floor, and handcuffed them. Another motel guest called the police when he saw a man with a gun run through the motel room door. (Rocky Mountain News, July 1, 1997)
Boulder, Colorado
In August 1997, two bounty hunters entered the apartment of a single mother while looking for someone who had moved nearly a year earlier. The pair drew guns before forcibly entering the apartment. Fortunately, the family was not at home. (Rocky Mountain News, September 17, 1997)
Providence, Rhode Island
In April 1997, Lisa Sylvester was awakened after midnight by a ring at her door. She could barely make out two men dressed in black standing outside her door and a dark van blocking her driveway. When they identified themselves as ''agents with the Division of Bail Enforcement'' and ordered her to open the door, she called 911. Arriving police questioned the self-proclaimed agents who were armed with pepper spray and handcuffs. When pressed, the bounty hunters admitted that they were prepared to break down Ms. Sylvester's door to search for a bail jumper they mistakenly believed to reside at that address. (Providence Journal-Bulletin, April 4, 1997)
Cleveland, Ohio
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In August 1997, two men with badges and guns handcuffed seventeen-year old Nicole Williams and forced her at gunpoint to help them find her boyfriend, who had jumped bail. They forced her into their car and made her call her boyfriend's name out of the car window as they drove around her neighborhood. One of the bounty hunters, Michael Kole, has a prior conviction for involuntary manslaughter.
One of the bounty hunters involved (who had previously been convicted of involuntary manslaughter and was prohibited by Ohio law from carrying a gun) was also charged with burglary and abduction for breaking into the Elyria home of William McAuliffe in search of McAuliffe's stepbrother. (The Plain Dealer, August 22, 1997, and October 11, 1997)
Greensboro, North Carolina
In 1992, two bondsmen in Robeson County burst into a woman's home, snapped her in handcuffs and leg shackles and carted her away. The woman turned out to be the sister of the person sought. (News & Record, February 10, 1997)
Salt Lake City, Utah
In November 1997, a pair of bounty hunters opened fire on a truck, wounding the unarmed driver. The bounty hunters were reportedly looking for the man's girlfriend. One of the bounty hunters was reportedly involved in a similar shooting of a bond-jumper in Draper just four months earlier. (The Salt Lake Tribune, November 24, 1997)
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Buffalo, New York
In April 1997, four men calling themselves ''special agents'' barged into the Linton home with guns drawn. They were looking for Joseph Frazier, a convicted felon who had skipped out on a bond. What they found was a houseful of Frazier's relatives. The house, owned by Frazier's sister Laurie Linton, was neither Frazier's home of record, last known address or collateral on his bail bond. (The Buffalo News, April 7, 1997)
Norfolk, Virginia
In December 1993, a bounty hunter mistook Cynthia Taylor for her sister, although the two do not look alike. Taylor, who was exiting her mother's house after a friendly visit, was approached by a stranger making gestures. She hurried to her van, got inside, and rolled up her window. As she put the car in reverse to back out of the driveway, the bounty hunter, Joseph L. Mack, pulled a gun and raised it at the van window. Taylor eluded Mack and sought refuge in a local gas station after a harrowing car chase. Mack entered the gas station's convenient store, grabbed Taylor, handcuffed her, and threw her to the ground. A bystander summoned police, who charged Mack with brandishing a firearm. In turn, Mack charged Taylor with trying to run him down with her van. (The Virginian-Pilot, December 10, 1993)
Oakland, California
In March 1993, two bounty hunters were cruising the streets of Menlo Park looking for Cecilio Zaragoza who had skipped out on a bail bond while facing drug charges. The two happened upon Santiago Segura, who was sitting in front of his house listening to music, and approached him with drawn weapons. Segura, who did not know the men and was not facing charges, ran. The bounty hunters pursued him, caught him, handcuffed him, and took him at gunpoint to their car. They drove Segura to a nearby parking lot, took his money and pager, and then drove him to the East Palo Alto police station, where they discovered their mistake. Charges against the bounty hunters were dropped a year later because Segura could not be located. (The San Francisco Chronicle, December 15, 1993, and February 15, 1994)
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New Orleans, Louisiana
In May 1990, Jefferson Parish authorities booked six area bounty hunters for nabbing Delos Hall from his Metairie home, later discovering that they had the wrong man. Before turning him in to the Jefferson Parish Correctional Center, the bounty hunters beat and repeatedly threatened Hall. Two of the bounty hunters involved were also arrested for beating Leonard Stephens—breaking his nose and forcing him into the trunk of a car. In January, these same two assaulted Kenny Ola, a Meraux carpenter. (New Orleans Times Picayune, May 31, 1990)
In April 1990, bounty hunters brandished guns and disrupted a funeral service while refusing to let mourners leave the funeral home. Jude and Sandy Daigle, who live upstairs from the Metairie funeral home they manage, were believed to be hiding a criminal suspect. They did not even know the individual being sought. (New Orleans Times Picayune, May 31, 1990)
In February 1990, Curtis Turner was beaten, shackled and stuffed into the trunk of a car before finally ending up at the hospital. Turner was wanted on a misdemeanor warrant in New Orleans for shoplifting a bottle of aspirin. (New Orleans Times Picayune, May 31, 1990)
Riverside, California
In October 1994, bounty hunter Casey James Nethercutt pulled over, and at gunpoint, detained two high school students driving home from a high school football game. In a separate incident, Nethercutt handcuffed the friend of a fugitive to obtain information on the fugitive's whereabouts. (The Press-Enterprise, February 26, 1995)
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San Diego, California
In June 1996, four self-described bounty hunters in San Diego allegedly shot twenty-one year old Scott Radebaugh, whom they wrongly assumed was their fugitive. (The Progressive, January 1997)
East Hartford, Connecticut
In January 1995, a bounty hunter fired his pistol at least six times into a car owned by a man he mistakenly stopped for questioning. (The Hartford Courant, January 17, 1995)
Richmond, Virginia
In June 1995, bounty hunters broke into the home of Connie Davis looking for an accused drug dealer—a man the victim said she had never met. They interrogated her while standing over her with semi-automatic weapons. (Richmond Times-Dispatch, August 10, 1995)
Middletown, Connecticut
In January 1997, two bounty hunters kicked in the door of a house in Middletown looking for a suspect wanted by New Britain police. During the break-in, they injured a five-year old girl in the home. (States News Briefs, January 29, 1997)
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Marietta, Georgia
In July 1992, bounty hunters chased an individual through the streets waving guns. It turned out to be the wrong person. (The Atlanta Constitution, July 6, 1992)
Phoenix, Arizona
In April 1987, an eighteen year old bounty hunter killed Richard Monroe Bachellor, shooting him in the back as he walked through a parking lot unarmed with his wife and three-year old son. At least three witnesses saw the bounty hunter, Dennis Thompson, put a pistol in Bachellor's hand as he lie dying on the ground. Bachellor was wanted on a bail bond from Phillips Bail Bonds in California. A Maricopa grand jury originally declined to indict Thompson, but he was later indicted, plead guilty to manslaughter and was sentenced to six months in jail. (UPI, May 14, 21, 27, 29, 1987; UPI, April 19, 1988; and The Arizona Republic, September 1, 1997)
Memphis, Tennessee
In December 1997, seven bounty hunters shot and killed a man in Whitehaven, Tennessee while attempting to arrest him on warrants from Crittenden County, Arkansas. (The Commercial Appeal, January 25, 1998)
Chicago, Illinois
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A bounty hunter from Arkansas nabbed his skip in Chicago, threw the fugitive in the trunk of a car, and drove back to Little Rock. (The Progressive, January 1997)
Kansas City, Kansas
In February 1993, a bounty hunter pulled a .357 Magnum from the front of his pants and chased a wanted man through a crowded lobby after a basketball game at Center High School. (The Kansas City Star, February 21, 1993)
New Haven, Connecticut
''One time a guy I was driving in from another state was giving me so much trouble that I had to hang him from the roof of the car upside down. I only let him down after he begged and pleaded with me for a couple of hundred miles.'' This scenario related by bounty hunter Jim McNulty, seems harmless when compared with his comments that ''It take four and a half pounds of pressure to break a man's wrist. I'll be doing this job until I can't do that anymore.'' (The New York Times, April 5, 1992)
Mr. CANADY. Thank you, Representative Hutchinson. Senator Torricelli, we're glad to have you with us today. It's good to see you back on the House side. We appreciate your interest in this issue and look forward to hearing your comments.
STATEMENT OF HON. ROBERT TORRICELLI, A U.S. SENATOR FROM THE STATE OF NEW JERSEY
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Mr. TORRICELLI. Thank you, Mr. Chairman, very much for allowing me the opportunity—
Mr. CANADY. Senator, your microphone needs to be turned on.
Mr. TORRICELLI. Things are much more complicated in the House, Mr. Chairman. [Laughter.]
Thank you very much for this opportunity, members of the committee. I came to discuss with you today what is, I think, a rising problem in our country of rogue bounty hunters. I've come, obviously, in support in particular of the Torricelli-Kohl bill, the Bounty Hunter Accountability and Quality Assurance Act. But I also wanted to thank and praise Representative Hutchinson who has helped move this issue forward and done a great deal of work on this concern. While there are differences on our bills, the goal is fundamentally the same.
Mr. Chairman, about 40 percent of all criminal defendants in the United States are released on bail each year. In 1996, 33,000 of these people failed to make an appearance. They, to use the vernacular, skipped bail.
While publicly funded police officers recover only about 10 percent of the massive ranks of the defendants who do fail to appear, bounty hunters catch an incredible 88 percent of them. Because police officers are understandably occupied with preventing crime and catching criminals, much of this responsibility has been left to private bounty hunters. Many, even most, of the thousands of bounty hunters operating throughout the country perform their jobs within the bounds of the law. They do so honestly, legally, in ways that, I think, that would make us proud. And, because of 19th century Supreme Court decision, these men and women are largely uncontrolled by Federal, State or local governments. Because so many of them operate legally and ethically, no such controls for many had been required. But when deciding this issue in 1873, the Supreme Court judged the hunt as ''a continuance of the original imprisonment.'' Thus, bounty hunters have the freedom to track a defendant from State to State, break down doors without search warrants, and even use deadly force when challenged. Most bounty hunters are part-timers, have little or no training, and can order a bag of equipment through the mail for a couple of hundred dollars, don a cap, an arm patch, and they start on their contracts.
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The extent of regulation varies State by State, but in most places it is nonexistent. Despite this lack of training we give these people really extraordinary, even unmatched authority, even beyond what most local police officer and Federal law enforcement people would exercise.
I believe it's our responsibility in the Congress to start putting some checks on this unlimited authority. To put it simply, my bill does three things:
First, we would allow bail bondsmen to get expedited background checks on potential employees through the FBI. A similar provision applied to private security guards recently passed the House unanimously.
Second, we would clarify that bail bond companies have liability for the actions of their bail agents, on the assumption that if there were liability, the bail bond companies would have some incentive to inquire as to whom they're hiring, their backgrounds, and how they operate.
And, finally, we would direct the Attorney General of the United States to establish model guidelines on a voluntary basis for the States to follow in regulating their bounty hunters. In this way, the States would have some exposure to the experiences of each other and your own judgments in how to operate.
I recognize the committee will get a variety of sources of advice and different guidelines for potential legislation. They may all differ, but as I come here today with Representative Hutchinson, our goals are also the same.
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I hope this is helpful to the committee, and I offer it, once again, restating, that in spite of the fact that there is little training and no guidelines and no liability, most bounty hunters have operated ethically and within the bounds of reason. But, of course, we legislate not for the many but often for the few because that's where violations occur.
I in no way want to demean the work of many bail bondsmen and bounty hunters who help law enforcement every day, but there clearly, Mr. Chairman, is a problem in the country. Recent news accounts of doors being beaten down, innocent people being beaten or victimized or arrested, I think indicates to us that is now time-some 120 years since the Supreme Court last defined this issue—for us to look at this question again.
Thank you, Mr. Chairman.
[The prepared statement of Senator Torricelli follows:]
PREPARED STATEMENT OF HON. ROBERT TORRICELLI, A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Mr. Chairman, thank you for allowing me the opportunity to appear before this committee today in support of the Torricelli-Kohl ''Bounty Hunter Accountability and Quality Assurance Act of 1998.'' I am grateful for the chance to speak to this problem in a public forum, and I am hopeful that we can pass positive, reasonable legislation before we recess in October.
I would also like to thank and praise Representative Hutchinson for his early and strong work on this issue—I hope that we can continue to work on parallel tracks in each Chamber as we try to put some checks on some of the troubling practices of this nation's worst bail enforcement officers.
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Mr. Chairman, throughout our nation's proud history, bounty hunters have proved a valuable addition to our law enforcement and recovery efforts. About forty percent of all criminal defendants are released on bail each year, and in 1996 alone more than 33,000 of these people skipped town.
Police departments, no matter how efficient or determined, cannot be expected to deal with so many bail jumpers—they have enough to do as it is. But while public law enforcement officers recover only about 10 percent of defendants who skip town, bounty hunters catch an incredible 88 percent of bail jumpers.
Because of the special, contractual nature of the relationship between bail bondsmen and those who use them to get out of jail, bounty hunters have traditionally enjoyed special rights. This ability to more efficiently track and recover criminal defendants serves a valuable purpose in our society. But the lack of constitutional checks on bounty hunters also opens the system up to the risk of abuse.
Today, this committee will hear from some victims of overzealous or even criminal bounty hunters who went beyond their duties and crossed the line between enforcing the law and breaking the law. Such cases may not be the norm, but they have become far too common. Indeed, there are numerous reported incidents in which bounty hunters have broken down the wrong door, kidnaped the wrong person, or physically abused the targets of their searches. And there is little recourse for the innocent victims of wrongful acts.
Representative Hutchinson and I have introduced separate pieces of legislation to correct some of these abuses. While our approaches are slightly different, I believe that both bills are solid, reasoned attempts to put some checks on a system which threatens to get out of control. For pragmatic reasons, my bill would not go quite as far as the Hutchinson bill. However, we are both trying to get at the same problem—unaccountable bounty hunters and bail bondsmen who act recklessly or even criminally without any fear of meaningful recourse or retribution.
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My bill, the ''Bounty Hunter Accountability and Quality Assurance Act,'' contains only three simple provisions, each of which will make it easier to better regulate bounty hunters, but none of which will overburden states.
The first provision would simply allow a national bail enforcement organization to run expedited background checks through the FBI, ensuring that there will be a relatively easy way to keep convicted felons out of the bail enforcement business. A nearly identical provision related to private security guards recently passed this House unanimously.
The second provision of the bill directs the Attorney General of the United States to establish model guidelines for states to follow when creating their own bail enforcement regulations. In the course of her work, the Attorney General will be specifically directed to look into three areas identified by the bill—whether bounty hunters should be required to ''knock and announce'' before entering a dwelling, whether they should be required to carry liability insurance (most already do), and whether convicted felons should be allowed to obtain employment as bounty hunters. While states are not required to follow the model guidelines, those states who choose to adopt the guidelines within two years will receive priority for Byrne grant funding.
Finally, this bill makes bail bond companies liable for the acts of the bounty hunters they hire. The clarification of liability in our bill will encourage these companies to carefully select and perhaps even train the bounty hunters in their employ. Perhaps we can cut down on the worst abuses if we force employers to take a closer look at who they hire.
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Mr. Chairman, it is time to start the process of making rogue bounty hunters more accountable, while at the same time restoring America's confidence in the long tradition of bail enforcement that dates from the earliest days of this nation. I thank you again for allowing us this opportunity to discuss our proposals here today, and I again thank Representative Hutchinson for recognizing the problem and moving forward in the House with his proposed solution.
Mr. CANADY. Thank you, Senator, we appreciate you taking the time to join us today and we are grateful for your contribution to our consideration of this issue.
Mr. TORRICELLI. Thank you very much.
Mr. CANADY. Thank you.
We will now move to our next panel, members of the second panel will come forward and be seated.
Mr. SCOTT. Mr. Chairman, while we're waiting, the ranking member of the full committee would like his statement placed in the record.
Mr. CANADY. Without objection, the statement will be placed in the record.
[The prepared statement of Hon. John Conyers follows:]
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PREPARED STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
I am very pleased to join Congressman Hutchinson as an original cosponsor of the ''Citizen Protection Act of 1998.'' I am horrified by the stories I hear regarding the behavior of some bounty hunters and it is high time the Congress took corrective action. I commend Congressman Hutchinson for taking the lead on this important issue.
The freedom bounty hunters have may have been ok in the Wild West—where they originated—but this freedom is highly inappropriate in modern society. Today, bounty hunters trample the Fourth Amendment rights of innocent people without fear of repercussions.
Today, we will hear from some of those people and their stories are terrifying because their stories tell us that anyone can be mistakenly apprehended by a bounty hunter, handcuffed, held at gunpoint and even kidnapped—and under current law, there is almost nothing that can be done about it.
I co-sponsored Congressman Hutchinson's bill because this state of affairs needs to change. This legislation would make bounty hunters and bail bondsmen liable—just like law enforcement agents—for their violations of civil rights. There is simply no justifiable reason for bounty hunters to be less liable than law enforcement agents for the same conduct.
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I look forward to hearing from the witnesses.
Thank you all for being here. On our second panel this morning, we will hear from persons who have had first-hand experience with bounty hunters. These men and women are coming before us today to recount their personal stories, which I said earlier are very compelling and which demand the attention of this Congress.
First on this panel will be Mrs. Pamela Read. Mrs. Read comes to us from Coventry, Rhode Island. Next we will hear from Jrae Mason of Jackson Heights, New York. Then we will hear from Jerry Gerig. Mr. Gerig comes to us from Acworth, Georgia. Next to testify will be Linda Childs. Ms. Childs comes to us from Plattsburg, Missouri. Finally, on this panel, we will hear from Mr. Edwin Soltz, Ms. Childs' attorney.
Again, I want to thank all of you for being here. Your contribution to our hearing today is very important. I would ask that you do your best to summarize your testimony in no more than 5 minutes. We will not strictly enforce the 5-minute rule, but if you'll try to be guided by the lights which will—when it's red, that means 5 minutes has expired. Again, we thank you.
Mrs. Read. And if you would turn on the microphone there. Thank you.
STATEMENT OF PAMELA READ, COVENTRY, RI
Ms. READ. Good morning. I just want to thank you for inviting me to testify here this morning.
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In 1994, my husband, my two children, and I, set out to California for our family vacation. We had been to Disneyland, Universal Studios, and, all in all, we had a really great week. And the night before we were to come back home to Rhode Island, we moved to a motel close to the airport so we'd be close in the morning to the airport.
We had gone out that night to dinner. We came back, we were just relaxing in the room, the children had fallen asleep. My husband had fallen asleep on top of the covers of the bed. About 9:30, I woke him up and told him to get into bed.
As we get into bed sometime around 10 that evening, there was pounding and yelling outside our door. My husband got up out of bed to go and see who was at the door, and he saw two men. He went to he window and looked out the window and he saw two men, one on either side of the door, with guns drawn, pointed up into the air, yelling at us, open up the door, swearing.
My husband asked them who they were. They told us they were rescue personnel and we knew they weren't rescue personnel to come in our room that way. So we told to them who we were, what did they want. They wouldn't tell us, they just kept swearing at us, yelling and banging on the door for us to open up.
One of them disappeared and went toward the office of the motel. I had called the office to tell them someone was trying to get in our room. I then got on the phone with the 911 operator and told her someone was trying to get in our room. The other person who had left the door came back with what was the resident manager of the motel and we later found out in court, he had thought they were police-like looking men and gave them the room key.
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So, we were horrified, standing inside our room watching the door unlock. They couldn't get the door open because we had the night deadbolt on the door, so they had to kick the door in to open the door. They did that.
They both came rushing through the door, one of them stood at the foot of the bed where my children were and held gun pointed at them. The other one came over to the bed where my husband and I were. Then my husband stood on the bed with the children.
The other one came to me and pointed gun in my face, took me by the arm and had me get out of the bed and stood with a drawn, cocked gun in my face, about 6 inches away from my nose, asking who I was, what I was doing. I was telling them this from the first pounding on the door, who we were.
He wanted to know if I had any identification, and I told him exactly where it was. He went and looked through my pocketbook to get my Rhode Island license out and found out that I was the person I told them I was.
He then walked over to the telephone because I didn't hang it up when they came in the room, I just put it down. And we went over and was speaking to the 911 operator. I didn't know what he was saying at the time. I know now, but I didn't at the time. I was still standing with my hands up in the air like a criminal; crying, shaking, I had chest pains, I didn't know what was going on.
So then, he got off the phone with the 911 operator, looked at us, and said, stay put, and walked out the door. By this time, the police had shown up outside the door. There was a helicopter outside shining a big spotlight in our room, people from the motel who were staying the night had come out to see what all the commotion was outside.
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My husband followed the bounty hunters out the door and started to speak with the police. I just went to the children first and then we all walked outside the room. I sat on the curb with the children for a few minutes, trying to calm down a bit.
Then we had to speak with the police for a while, and we all filled out reports to the police, the accounts of what happened in the room and everything. The bounty hunters did that too. They were on the other side of the parking lot talking with police, and my husband and I were near the motel room.
Then my husband told the manager that we wanted to leave there, we didn't want to spend the night there, and we had them find us a hotel closest to the airport from where we were. They put us up in another motel.
The police said that we could have them arrested that night and if we did, we would have to stay over in California that night for a hearing in the morning, and then if the judge ruled they were innocent, that it was okay for them to do as they had done, we could have been charged for false arrest on these men. Or we could just take and have a civil suit filed against them through our own attorney's back home. I mean, at that time, we couldn't even make a decision, we were just totally out of our minds.
So, we just decided we were going to try to handle it from home, which we came home to do and the attorney back in Rhode Island wasn't sure how the laws in California regulating them, and we ended up contacting attorneys in California who handled our case for us. And Orange County had prosecuted the bounty hunters themselves, and then we civilly took them to court, them and the motel.
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[The prepared statement of Mrs. Read follows:]
PREPARED STATEMENT OF PAMELA READ, COVENTRY, RI
March 8, 1998
This is a written statement recalling the events of my vacation in California during October 1, 1994 and Oct. 10, 1994.
My husband, myself and our two children, ages 18 years and 5 years set out to California on October 1, 1994 for a week of fun and excitement on the West Coast. We boarded the airplane with great expectations of a wonderful time. When we arrived in California's John Wayne Airport much to our surprise, we got there and our luggage didn't. What a way to begin. We put in a claim for the baggage and then set off to visit my relatives in San Diego. We spent the night there. On the following day we went up to San Clemente where we had rented a condo for the week. From there we made plans to visit Disneyland, Six Flags, The Price Is Right Show, Universal studios, Hollywood, Los Angeles, and a few other stops in between. We had a wonderful time.
On the day of October 9th we had to check out of the condo and we booked a room in a Motel 6 close to the John Wayne airport because we were leaving the following morning to come back to Rhode Island. We checked into the hotel. My husband and I and the children all went into the office. We got the room key and went to put our things inside the room. We took a little break inside while the children walked around to check out the pool, snack machines and see what else the hotel had to offer.
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After a short while we decided to take a ride to find some place to eat dinner. We ate at a Sizzler restaurant and then we took a ride to the Mall which was down the road from where we ate. We walked around the mall just to have something to do for a while. After a few hours we returned to the motel.
Around 8:30-9:00 the children had fallen asleep and so had my husband. I was watching television while lying on the bed. Around 9:30 or so I woke my husband to tell him to get into the bed instead of on top of it. Shortly after that there was a loud pounding on our room door followed by yelling. My husband got out of the bed to look out the peephole in the door and the window to see two men standing there yelling and banging on the door for us to open up! We asked them who they were they said they were ''Rescue''. We did not call for rescue and the fact that they had guns drawn and I am part of a rescue team I know rescue personnel does not go to someone's door in that manner. My husband again asked them who the were and they began to yell, swear , kick and punch the door telling us to open up using foul language. I picked up the phone and called the front desk to let them know someone was trying to get in our room. He said he would call the manager and I hung up. At that time there was alot of commotion going on outside the room with them yelling and swearing at us. I picked up the phone again and called 911. Previously in the day my husband pointed out to me a card on the table in our room which gave directions on how to for help if needed. I had to dial 9 for an outside line, then 911.
The 911 operator got on the phone. I began to tell her what was happening. She said she thought she knew who was at the door. She told me some bail recovery people were coming to the room to find someone. I asked them again who they were. They never told us. We told them we were a family with children in the room and also told them where we were from. That didn't matter to them. They wanted in. They continued to swear, kick and beat on the door. One of the men then walked away from the door toward the office of the motel. The other stayed at the door yelling at us. The other guy came back with the manager. I was still on the phone with the 911 operator and she kept telling me to find out who they were but the guys would not tell us who they were. Meanwhile outside the manager was talking to these guys, and then we say the door lock on the door opening with the key. We had the dead bolt on the door so the door still would not open. They two men they began kicking in the door. They kicked hard enough to break the door open. The two guys came barging in the room. One of them went to the bed where my children were. At this point my children had been awakened by all of the noise. He held a gun on my children as though they were criminals. He told my husband to get on the bed with my children. The other guy came over to me and took me by the arm and made me get out of the bed and stand in front of the bathroom door. He had his loaded and cocked gun pointing at my face about 6 inches away from my nose. Just before he took me out of the bed, I dropped the phone to which 911 was still on the line. He was shouting at me to tell him who I was, why I was in that room and who were these people with me. I was scared to death. I told him who we were again. He asked me if I have identification and where it was. I told him exactly where it was. He held the gun to my face the whole time he was in the room. He looked for my I.D. He found it and saw I was who I had told him I was. I thought I was going to be shot right there in front of my children and my husband. I even thought I was going to be raped. I had no idea why these guys were in here doing this to us. I was crying and shaking. I began getting chest pains. My children were lying on the bed where my husband sitting. They were terrified. The guy must have realized I wasn't who he thought I was. He went over to the phone. I was still standing there with my hands up in the air and the gun pointed at me. He picked up the phone and started to see who was on the other end. He was talking to the 911 operator. It wasn't until a few weeks later that I found out what they were saying to each other.
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In the mean time, the police had arrived outside the hotel room. A helicopter was flying overhead with the spotlight shining into our room. The guy on the phone then told me to stay put. He and the other guy exited out of the room. My husband followed them out. The police then began talking to my husband and I went toward the children and also went outside. I was in complete shock. I had no idea what to do at that point. I sat on the curb of the sidewalk in front of our room with the boys. I was still crying and shaking. My chest really hurt.
After a few minutes of trying to calm down I walked over to the police with my husband to find out what was happening. Some police also went to talk to the men on the other side of the parking lot. My husband told the police everything that had happened. My husband also asked the police if we could have them arrested for doing that to us. The police told us that we could but we would have to remain in California to appear in court the following morning. If the judge at that hearing ruled that we had falsely arrested them then we could be charged with false arrest. He also told us that we could fly home the next day and file a criminal suit against them. We had to make that decision. At that point we were not sure what we should do. It was difficult to try to make that decision at that time. We were very confused and upset. The police had all of us make out a police report stating what had happened.
My husband told the manager of the hotel that we wanted a refund on the room and we also wanted to be placed into a different hotel in the area. The manager argued with my husband but in the end he did refund our money and his wife call a Holiday Inn near the airport and made a reservation there for us. After the long talk with the police we told him we would return home and see an attorney at home. The police remained on the scene until we packed up all of our things and got ready to leave. We left and went to the other hotel.
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After returning home we went to our lawyers office and explained what happened. He wasn't sure how to handle the situation and referred us to another lawyer. We went to him and he also was concerned about the laws being different between Rhode Island and California. He said he would call the Barr association and get back to us. We didn't get much information from him. A friend of mine herd what had happened to us and referred us to an attorney in California. We called him and told him what happened. He said he wanted to meet with us to discuss the problem. He flew out to Rhode Island and we made the arrangements with him to press charges. He hired another attorney to help on the case. They really did a lot of work for us.
Orange County California press charges against the guys and the attorney generals office wanted us to fly out to California to testify against them. We agreed to do that and flew back to California in 1995. We went to the courthouse in Orange County and without our testimony being herd, the guys plead guilty to charges of assault with a deadly weapon and false imprisonment. We left the courtroom and returned to our hotel. Also on this trip we had to appear in Orange Ca. to give depositions on this case . We met with our attorney and people representing the motel. We went to the depositions on November 16, 1995. After a few days we returned to Rhode Island.
Our case came up in court in August 1996. We had to again fly to Ca. All four of us had to testify. The case started on August 5th and continued until August 14th. The jury found the motel 70 percent at fault and the bounty hunters to be 30 percent at fault. The motel compensated us but the bounty hunters claimed bankruptcy. They got away with what they had done.
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Since that night on October of 1994, my family had to seek medical attention for the fears, anxieties, head aches, vomiting and many sleepless nights. We all had to seek counseling to help with all the fears we had. My 5-year-old would not let us out of his sight after this happened. He slept with a picture of myself and my husband under his pillow for 1 1/2 years. He would not go out to play with his friends. He had to always be with us. He was upset for a long time. Myself and my husband had trouble sleeping, eating and being around other people for quite a while. I still have fear of being alone. We both still find it hard to stay in hotels or motels. But we have learned of ways to help us cope with these situations. It doesn't go away but sometimes it gets a little easier to handle. My older son tries to ignore his feelings of this. He has a hard time dealing but he feels if he keeps things to himself then he will be alright. He has a hard time expressing his feelings.
Mr. CANADY. Thank you very much, Mrs. Read. Ms. Mason.
STATEMENT OF JRAE MASON, JACKSON HEIGHTS, NY
Ms. MASON. Good morning. I would like to first thank you all for inviting me to testify. I'm honored that you want to hear my story, and my thoughts on why it is vital that the bounty hunter industry be regulated.
Nearly 4 years ago, I was sitting outside enjoying the warm July evening when two men approached me. They asked me my name and if I lived at that Harlem address.
Before I knew what was happening, I was handcuffed. Before I understood what was going on, I was being led into my apartment where the two men ransacked my home. They told me I was someone else, they ignored my pleas, the ignored my identification proving that I was not the woman they were looking for. They wore flashy silver badges that looked like a police officer's shield and they told me they were bounty hunters.
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Scared out of my mind, I was snatched from my home and dragged from precinct to precinct. My hands were bound and I was told to shut up, to stop my continual denials that I wasn't the woman they were after.
My pleasant July evening turned into a nightmare. That night, I slept on the cold, hard floor of the city's central booking division. In the morning, my hopes of the terrible dream that ended came to an abrupt end. The bounty hunters took me to a boat and locked me inside for hours.
I was still handcuffed and confined to a tiny cubbyhole on the boat. I was never allowed a phone call. I was barely allowed to go to the bathroom, and even when I did, I wore the tight cuffs that squeezed my wrists so badly they ached for days.
That afternoon, I was locked in another room, this time at Kennedy Airport where the bounty hunters waited for the bail bondsmen who had their pay. One of the bounty hunters stated that he didn't think I was the fugitive woman that had jumped bail but he said they needed the money anyway.
At Kennedy, I was turned over to the bail bondsman who put shackles on my feet and forced me into another car. For 2 days I was stuck in the back seat of that car, and along the way, when I complained, insisted that I was not the woman they were looking for, one of the two men threatened to gag my mouth and throw me in the trunk for the rest of the ride to Tuscaloosa, Alabama.
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At that point, I just knew that I'd never see my daughters and grandchildren again. I was so afraid, I thought I might die, on those back roads where there were no other vehicles. And I knew in my heart that I had done nothing wrong, yet I had been abducted, chained, and dragged from my home in New York City, through States I had never been in before.
Once in Tuscaloosa, the first question was asked of me again, what is your name. And when I told them something different from what they wanted to hear, I was told, tell it to the judge. I thought about stories, wild tv tales where people are thrown in prison for years and years and years for crimes they didn't commit, or because they were mistaken for someone else.
That's when I broke down. I yelled, I screamed, and I cried. I couldn't believe this was happening to me. I couldn't believe no one would believe me, not even when I showed them proof of who I am.
Thankfully, a young sherif's deputy asked to see my arms. He noticed immediately there were no needle tracks. The woman they were supposed to apprehended was an IV drug user, which I am not. My arms are smooth and unblemished.
This deputy took my fingerprints and compared them to the woman who had jumped bail, a woman who, I might add, was 4 inches shorter than I am, older, and much thinner.
They knew finally this was all a mistake. They told me I was free to go. I had no money; I didn't even have my purse that contained my phone book. I was stranded in an unfamiliar place, alone. The bail bondsmen that helped create this hell gave me $24, a bus ticket back to New York, and said he was sorry.
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Everybody makes mistakes, but this shouldn't have happened, and it should never happen to anyone else again. I urge you all to put an end to this kind of reckless lawlessness in the name of the law.
These bounty hunters who literally kidnapped me are rogue cowboys with $2 toy badges, but somehow the right to forcibly take anyone across State lines without even allowing them a phone call.
I was powerless, I had no rights. These bounty hunters, however, have far too many rights. Anyone can buy a badge, put up a gun, and start hunting down fugitives, without training, without any knowledge of any individual's constitutional rights.
I believe there's a need for law enforcement agencies to apprehend fugitives who have jumped bail, but these individuals must answer to someone. They must know the law and the rights of every citizen of this country.
I consider myself lucky. I went through a horrible experience, but I'm lucky because I survived. Please make sure no one else has to endure the nightmare I lived through.
Thank you very much for your time.
Mr. CANADY. Thank you, Ms. Mason. Mr. Gerig.
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STATEMENT OF JERRY GERIG, ACWORTH, GA
Mr. GERIG. Good morning. My name is Jerry Gerig from Kennesaw, Georgia. I appreciate the invitation to appear and testify at the subcommittee hearing on H.R. 3168, the Citizen Protection Act of 1998.
My purpose in to testify concerning two incidents which happened to my daughter on August 16 and 17, 1997, at the Hometown Lodge in Acworth, Georgia.
Around 4 p.m. on the 16th, three men entered my daughter's room looking for a male subject. They were armed and identified themselves as Federal agents. They received permission from my daughter to look through her room, and they were very pleasant.
On Sunday, August 17, around 5 a.m., they returned to my daughter's room, along with two Acworth police officers, again armed, including a pistol grip shotgun, and began to verbally abuse my daughter. Names like slut, whore, worthless, were being thrown at her. At that point, the Acworth police officers left the room.
Never, at any point, did the men advise the Acworth police they were a company. They just stated they were fugitive recovery and never produced any type of warrant. At all times, the Acworth police officers thought that they were police officers. This information is from incident reports filed by the police officers.
I then found out the three men were, in fact, bounty hunters, not police officers or Federal agents, as they had claimed to be. I first started with the city, then the county, then the State, then the FBI, and finally with the U.S. Department of Justice Federal Bureau of Investigation.
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My last response on January 5, 1998, from John Collingwood, assistant director, Office of Public and Congressional Affairs, stated, ''Although it was determined that the bounty hunters may have represented themselves as FBI agents, reports indicated that they were not using credentials or badges of Federal agents.'' This letter is also attached.
Subsequent to the August 17, incident, a male from a neighboring room at the Hometown Lodge took our daughter under his wing to protect her from the law. We later found out that he started her using crack cocaine.
From that point, I have lost all faith that the various law enforcement agencies, from local to Federal, would take any action against the bounty hunters. As for our daughter, we are on the verge of losing her due to a drug habit which started after the incident with the bounty hunters. She is currently in trouble with law enforcement for crack cocaine. The outcome is unknown.
The bounty hunters contributed to the downfall of our daughter; they continue their dirty work with no laws to worry about or any agencies taking action against them. Somehow, fairness does not seem to apply when it comes to bounty hunters.
[The prepared statement of Mr. Gerig follows:]
PREPARED STATEMENT OF JERRY GERIG, ACWORTH, GA
My name is Jerry Gerig from Kennesaw, GA. I appreciate the invitation to appear and testify at the Subcommittee Hearing on H.R. 3168: the ''Citizens'' Protection Act of 1998''.
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My purpose is to testify concerning two incidents which happened to my daughter on August 16 & 17, 1997 at the Hometown Lodge in Acworth, Georgia.
Around 4:00 pm on August 16, 1997, three men entered my daughter's room looking for a male subject. The three were armed and identified themselves as Federal Agents. They received permission from my daughter to look through her room. They were very pleasant.
On Sunday, August 17, 1997, around 5:00 am, they returned to my daughter's room, along with two Acworth Police Officers, again armed, (including a pistol grip shotgun) and began to verbally abuse her. Names like ''slut'', ''whore'' and ''worthless'' were being thrown at her. At that point, the Acworth Police Officers left the room. Never, at any point, did the men advise the Acworth Police they were a Company. They just stated they were fugitive recovery and never produced any type of warrant. At all times, the Acworth Police Officers thought that they were police officers. This information is from Incident Reports filed by the Acworth Police Officers.
I then found out that the three men were in fact bounty hunters, not police officers or Federal Agents, as they had claimed to be. I first started with the City, then the County, the State, the FBI and finally with the US Department of Justice, Federal Bureau of Investigation.
My last response on January 5, 1998 from John Collingwood, Assistant Director, Office of Public and Congressional Affairs stated, ''Although it was determined that the bounty hunters may have represented themselves as FBI agents, reports indicated that the men were not using credentials or badges of Federal Agents.'' This letter is attached.
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Subsequent to the August 17, 1997 incident, a male from a neighboring room, at the Hometown Lodge, took our daughter ''under his wing'' to ''protect her from the law.'' We later found out that he started her using crack cocaine.
From that point, I have lost all faith that the various law enforcement agencies, from local to Federal, would take any actions against the bounty hunters. As for our daughter, we are on the verge of losing her due to a drug habit which started after the incident with the bounty hunters. She is currently in trouble with law enforcement for crack cocaine. The outcome is unknown.
The bounty hunters contributed to the downfall of our daughter, yet they continue their dirty work with no laws to worry about or any agencies taking action against them. Somehow, fairness does not seem to apply when it comes to bounty hunters.
Thank you.
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59922m.eps
| City of Acworth Police, |
| Acworth, GA, September 2, 1997. |
JERRY D. GERIG,
Kennesaw, GA.
DEAR MR. GERIG: I am responding to your letter addressed to the Chief of Police, dated 9–1–97, in reference to a bonding or recovery company.
There is an official investigation that has been initiated by orders of the Chief. Myself and Detective Anderson are conducting this investigation. Please be assured that as we develop information from this investigation we will provide that information allowable by law to you.
Investigations are usually slow and drawn out so I ask you to please be patient with us in this matter. We will keep in touch with you as we make progress in this matter.
If I, or Detective Anderson can be of help please feel free to contact us.
Sincerely,
JERRY D. GERIG,
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Kennesaw, GA.
DEAR MR. GERIG: I am responding to your request for information concerning the incident at the Hometowne Lodge. During my investigation I have determined that the county hunters were looking for Johnny Wayne Ingram, he is a fugitive wanted on a State Warrant from Cobb County. Ingram was out on a bond that has been secured by a company known as Quik Bonding Co. According to Shirley Hayes of Quik Bonding Company, I??? (copy illegible) Nachampkin (Fugitive Recovery) was hired to locate and apprehend Mir??? (copy illegible).
I have given Agent Joe Thompson of the F.B.I. a copy of my case file. He will review the file to see if there is enough evidence to pursue a Federal impersonation case. Agent Thompson said that he would be back in contact with me soon. In reference to other charges be pursued by the Acworth Police Department, the case is still on going and all of the interviews have not been completed. I advised you during our telephone conversation that your Daughter could go to the Magistrate Judge and obtain a warrant herself if an arrest is what you desire. It is the Policy of the Acworth Police Department to thoroughly investigate a crime before a warrant is obtained.
I will contact you as soon as I make progress on the case or I hear from the F.B.I. Please call me if I can assist you in any way.
Sincerely,
| J.W. Anderson, Detective. |
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| Jerry D. Gerig, CPA, P.C. |
| Kennesaw, GA, September 23, 1997. |
Chief RANDY HENSON,
City of Acworth Police,
Acworth, GA.
DEAR CHIEF HENSON: I have spoken with Detective Anderson and Lt. Swan concerning the above case who both indicate that we must obtain a warrant from the Magistrate Judge or the District Attorney if an arrest is what we desire on Lewis Nachampkin.
My daughter Kathryn and I are making this formal request that the Acworth Police Department have the above person arrested for assault with a deadly weapon, in the presence of two of your officers.
Thank you for your consideration. We will be awaiting your formal reply.
Sincerely,
| City of Acworth Police, |
| Acworth, GA, September 26, 1997. |
JERRY D. GERIG,
Kennesaw, GA.
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DEAR MR. GERIG: I respond to your letter addressed to Chief Henson on 9–23–97 in reference to the incident at the Home Town Lodge in the following manner.
I have spoken with the officers of our department concerning this incident. The officers did not observe anyone point or threaten anyone with a weapon. They did see the subjects were armed with weapons, but, did not see them assault anyone with these weapons. Therefore, if they did not see this offense, and your daughter is able and capable to obtain a warrant, we do not prosecute for her by obtaining the warrant.
I am sure you have been informed that this investigation has now been turned over to the F.B.I. We wait as you do to see what if any action they will take concerning this incident.
Should your daughter elect to obtain a warrant for one of the members of this incident, we, the Acworth Police Department, will gladly assist in the serving of this warrant if it is within our jurisdiction.
I or Anderson will keep you advised of the progress or any changes in this matter.
Sincerely,
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| U.S. Department of Justice, |
| Federal Bureau of Investigation, |
| Washington, DC, October 30, 1997. |
Hon. NEWT GINGRICH,
Member of Congress
Marietta, GA.
DEAR CONGRESSMAN GINGRICH: This is in response to your September 23rd inquiry on behalf of Mr. Jerry Gerig, who expressed concern that persons alleging to be FBI Agents entered his daughter's room, used foul language, and pointed guns at her. He later identified them as bounty hunters and inquired as to where bail bondsmen and bounty hunters get their authority.
This was indeed an unfortunate incident, and I can certainly understand Mr. Gerig's concern for his daughter. Our Atlanta Office has been in contact with Mr. Gerig on several occasions regarding this matter. As he knows, our Atlanta Office opened an investigation on September 29th as a result of liaison established with the Acworth Police Department regarding the allegations of Impersonation of an FBI Agent. The results of that investigation were presented to the United States Attorney's Office, Northern District of Georgia, for prosecutive opinion. Prosecution was declined, however, and Mr. Gerig was so advised by a representative of our Atlanta Office.
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The following information is in response to Mr. Gerig's specific inquiry about bounty hunters:
There is a federal law that permits a surety (bail bondsman) or a bounty hunter working for the surety to arrest a person who has failed to appear in court after the surety has posted a bail bond. The law, Title 18, U.S.C., Section 3149 (Surrender of an offender by a surety), states in part:
A person charged with an offense, who is released upon the execution of an appearance bond with a surety, may be arrested by the surety, and if so arrested, shall be delivered promptly to a United States Marshal and brought before a judicial officer. . . .
The surety or bail bondsman would have previously made an agreement with the court to forfeit the bond if the person failed to appear in court as required by the conditions of his or her release or if the person failed to surrender to begin serving his or her term of imprisonment. Under Rule 46(e) of the Federal Rules of Criminal Procedure, the court must declare a forfeiture of the bond if the person fails to appear. The surety or bail bondsman may lose the money he contributed to the bond. However, the forfeiture may be set aside in whole or in part if the fugitive is later surrendered by the surety. Therefore, the surety or bondsman may employ the services of a bounty hunter to find and return the fugitive. When the surety or bondsman returns the fugitive to the court, he receives a refund of the bond money.
Mr. Gerig may also be interested to know that a bounty hunter usually acts as a private citizen and not as an agent of the government. As a private citizen, a bounty hunter need not adhere to the constraints of the Fourth Amendment of the U.S. Constitution preventing unreasonable searches and seizures that are placed on government law enforcement officers, whether state or federal. In fact, the Supreme Court held long ago that a bail bondsman, and therefore, the bounty hunter acting as his agent, may seize a person without a warrant or other legal process. Courts have also held that the bounty hunter may break and enter private property to effect the arrest. However, the bounty hunter may be subject to tort liability for actual damages caused in forcibly entering a residence.
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The FBI is unable to be of further assistance in this matter. Mr. Gerig and/or his daughter may wish to consult an attorney to determine what, if any, legal recourse may be available to them.
I hope this information will be helpful to you and Mr. Gerig.
Sincerely yours,
| John E. Collingwood, Inspector in Charge, |
| Office of Public and Congressional Affairs, |
| By: A. Robert Walsh, Acting Unit Chief. |
| U.S. Department of Justice, |
| Federal Bureau of Investigation, |
| Washington, DC, January 5, 1998. |
Hon. NEWT GINGRICH,
Member of Congress
Marietta, GA.
DEAR CONGRESSMAN GINGRICH: This is in response to your November 18th inquiry on behalf of Mr. Jerry Gerig, who continues to express concern about the bounty hunters who allegedly identified themselves as FBI Agents before and during a search of his daughter's room.
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Mr. Gerig is correct in that impersonating an FBI Agent can be a federal offense when certain conditions are met. As we previously informed Mr. Gerig, following the August 17th incident involving his daughter, our Atlanta Office opened an Impersonation investigation. Although it was determined that the bounty hunters may have represented themselves as FBI Agents, reports indicated that the men were not using credentials or badges of Federal Agents. The United States Attorney's Office, Northern District of Georgia, declined prosecution based on the investigative results presented to that Office. If Mr. Gerig has further questions about that decision, he may wish to write directly to the U.S. Attorney, Northern District of Georgia, 1800 U.S. Courthouse, 75 Spring Street, S.W., Atlanta, Georgia 30335.
Mr. Gerig should keep in mind that not all cases investigated by the FBI lead to charges being filed. We have done everything within FBI guidelines in connection with this matter. However, if Mr. Gerig or his daughter has information in addition to that previously provided about this incident, they should furnish it to our Atlanta Office, Suite 400, 2635 Century Parkway, N.E., Atlanta, Georgia 30345–3112.
I hope this information will be helpful.
Sincerely yours,
| John E. Collingwood, Assistant Director, |
| Office of Public and Congressional Affairs, |
| By: A. Robert Walsh, Acting Unit Chief. |
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Mr. CANADY. Thank you, Mr. Gerig. Ms. Childs.
STATEMENT OF LINDA CHILDS, PLATTSBURG, MO
Ms. CHILDS. Good morning. I have two separate stories to tell. I might be a few minutes longer, I'm sorry.
On December 20, 1994, around 3:30 in the morning, there was a knock at our front door. My husband went to the front hall and a reply came from a bounty hunter, ''I have a warrant for your son.'' My husband opened the door, let the man into our home.
He walked through our living room, our front hall, and into our kitchen—we have a bungalow, very small. When we were in the kitchen, he asked where was the backdoor. I pointed to the backdoor which was directly behind him. At this point, he advised us that if our son was in our house, that we were all going to go to jail. Then he unzipped his coveralls and pulled out a large handgun. He waved it in front of my husband and myself.
At this point, I wanted to see the warrant. I didn't have my glasses, so I asked if I could get my glasses, and he let me—in my own home, I needed permission to get my glasses to see. He showed me a piece of paper which was a broken bond agreement with Doane Bonding Company, dated September 1994.
I told him it wasn't a warrant to be in our home, and to wave a gun at my husband and myself, and he'd have to leave or I'd call the police. He looked around our home, and he said he was going outside and he'd call the police himself. He did leave; after leaving, he wanted right back in. We locked our door.
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My son, Bob, was up by this time, and I asked him to go to his sister's house and wake her so that we could move our grandson there. I called our attorney, Edwin Soltz, to find out our rights. Mr. Soltz advised us not to let them in, and if they were to use force, to call the police. Mr. Soltz could hear the men arguing with my husband.
I went to the backdoor to watch for my daughter, and when I got there, there was a man standing in our driveway, talking on a telephone and guarding this exit. He said that it was the police on the telephone and handed me the phone. There was a male voice on the other end of the phone and when I asked to whom I was talking to, he said ''Number 4.'' He told me that I had to let them into my home. I told him that I had been advised by my attorney not to let them in.
Later, I found out that I was talking to the bondsman, Kevin Doane.
By this time, my daughter arrived and we went into the house. Upon entering my home, I could hear my husband arguing with bounty hunters through the door. They were threatening to knock the door down. Time passed; hours passed. Eventually they did kick the door in. At that time, we called 911, and the police were there right away.
They told us they could not get involved, but there wouldn't be any more violence, and explained the bounty hunter laws to us.
I asked the bounty hunters to leave, just to get off my property. The police told them at this time, they had to go to jail, that this was considered a third party address and they shouldn't even be here.
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This incident started at 3:30 in the morning and ended at 7 a.m.
After this, we started with threatening phone calls from bounty hunters. We had our phone number changed to a non-published number; not once, but twice, in 3 days.
At this time my son was 31 years old. He does not reside with us; he hasn't for several years, nor did anyone in my household sign a bond for him. And, by the way, his bond was for littering.
It's now 7 days—or should I say 7 nights, later. It's December 27, 1994, 2:30 in the morning; a knock at the front door. My son, Bob, and I both met in the front hallway. Bob asked who was there, a reply came from a bounty hunter, ''I have a warrant to search this house.''
Bob slid the deadbolt back. Just a hair before it got completely back, our door was broke off the hinges, door casing, lock, and all. The door landed on top of my son.
I ran away, afraid. I see men coming in. My husband—who just underwent major back surgery, had been home for just a couple of days before the first incident happened—was thrown against the front hall, shotgun under his throat, and held in position.
I ran out the back and I was met with a shotgun at my forehead. I had called my daughter; I had called the police. There was no where for us to get out. We were just captives in our house. My grandsons were in the house—one has asthma. We were pepper maced, and just held captive.
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The police came, there was nothing they could do to help us. The police did arrest one bounty hunter on an assault charge, which, by the way, was a city charge and it was dropped. The city felt that they were just bounty hunters doing what they needed to do.
Before the police left that night, or, I should say, that morning, I asked them to search my home. I insisted that they search my home. They did, and we were the only ones there.
It's time for a change. People need to be protected.
[The prepared statement of Ms. Childs follows:]
PREPARED STATEMENT OF LINDA CHILDS, PLATTSBURG, MO
Before I start I'd like for you to keep in mind, my husband just underwent major back surgery and our grandson has asthma. It's hard to believe in this day and age, with all of the modern technology and going into the 21st century that bounty hunters in the United States of America are still governed by the law of 1800. By this law bounty hunters are above the law. I would like to share my experiences of bounty hunters with you.
On December 20, 1994 around 3:30 a.m. there was a knock at our front door, my husband went to the front hall and asked ''Who's there,'' a reply came from a bounty hunter. ''I have a warrant for Virgil McCubbins.'' My husband opened the door and let this man into our home. He walked through the hallway into the living room, then into our kitchen. When he was in the kitchen he asked, ''Where's the back door?'', which was directly behind him. At this point he advised that if Virgil was in the house then we were all going to jail then he pulled out a large hand gun. (From inside his coveralls, a concealed weapon.) I asked to see the warrant to search our home, but I didn't have my glasses on, so I asked if I could go get my glasses and he let me. (In my own home, I needed permission to get my glasses so I could see.) He showed me a piece of paper which was a broken bond agreement with Doane Bonding Company, dated September, 1994.
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I told him that was not a warrant to be in our home and to wave a gun at my husband and myself and that he would have to leave or we would call the police. He looked around, put his gun away and said he was going to call the police himself and went outside, then he wanted back in. My son Bob was up by this time, and I asked him to go to his sister's house and told him to wake her so we could move our grandson there. I called our attorney Edwin Soltz to find out about our rights. Mr. Soltz advised us not to let them in and if they were to use force, to call the police. Mr. Soltz could hear the man arguing with my husband. I went out our back door to watch for our daughter, when I got to the gate there was a man standing in our driveway talking on a telephone, and guarding the exit. He said it was the police on the phone, and handed it to me. There was a male voice on the other end and when I asked who I was talking to the man said ''#4.'' He told me that I had to let the men in my home. I told him that I had been advised by my attorney not to let them in. By this time my daughter arrived and we went into the house. Upon entering my home, I could hear my husband arguing with the bounty hunter through our door. The bounty hunter was threatening to kick our front door down. While this was going on I had my daughter take our grandson to her house.
Then Larry arrived with my daughter and argued through the front door with the bounty hunter after the bounty hunter started kicking the door. Time passed and the bounty hunter kicked our front door open, breaking the dead bolt lock and door casings, after threatening to do so for over an hour. Larry quickly put the door back into place and said to call 911.
I called 911, the police arrived very quickly. The police advised us that this was civil and they could not get involved but there would not be anymore violence, and explained the bounty hunter law to us. I asked the bounty hunters to leave, just to get them off my property, and the police told them that they had to leave or go to jail. The police also told them that this was a third party address and that they shouldn't even be here, so they left. (This started at 3:30 A.M. and ended at 7:00 A.M.). Now the threatening phone calls started from the bounty hunters They continued to call until our phone # was changed. Two time in three days.
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My son is 31 years old, he does not reside with us and has not for several years, nor did anyone in this household sign the bond for him. His bond was for littering.
It is now 7 days or should I say 7 nights later, December 27, 1994, around 2:30 A.M. There is a knock at our front door, my son Bob and I both met in the front hallway. Bob asked ''who's there?'' and a reply from a bounty hunter was ''I have a warrant to search this house for Virgil McCubbins, open the door.'' Bob slid the deadbolt back and two bounty hunters started pushing their way into our home. My son tried to hold the door, but couldn't. The door was ripped off the hinges along with the storm door, and door casings again. My husband was awakened and went to the front hallway when he was pushed against the wall by a man with an assault shotgun, and held in place with the gun under his chin. I called the police, and told them what was happening and we needed help. I then called our daughter and told her what was happening and that I would meet her at the back door. When I went out our back door, I was met by a tall man with an assault shotgun who pointed it at my forehead, and to this day I can't remember what he said.
The next I recall, Larry had his arms around me and we were inside the house and I could hear our two grandsons were awake and crying, my daughter wanted to leave with them but couldn't. There were men with guns at both doors. We were captives.
Then we were pepper maced, all of us including the children. I could hear my grandsons age 5 (who has asthma), and 11 choking and crying but I couldn't help them, I couldn't help myself. The police arrived just after the macing, they could see what had happened. After helping us, he had one of the bounty hunters arrested for assault on a city charge.
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Before the police left I asked them to search our home, in fact I insisted they do so. They did and found nobody other than us.
I cannot see how this can happen to people. We are victims of a law made in the 1800's. This law was made for a totally different world, a different society, the world of gun slingers rustlers, and carpet baggers with posters that read ''Wanted Dead or Alive.'' This law became law 8 years after the civil war ended. People that was a long time ago. With the way this law reads, bounty hunters can do whatever, to whomever, whenever they choose, all under the color of the law.I've always thought the laws we have in today's society were made for all people regardless of race, color or origin. I've always believed that no one was above the law, I was wrong.
It's now 1998, 125 years later the carpet baggers are no longer with us. I think it's time to revise the laws that govern bounty hunters. We need to change the Neanderthal tactics and move forward. Bounty hunters need to be held responsible for their actions, citizens are, the police are, why not them?
I strongly believe you have the right to be safe in your home, and you have the right to say no you cannot enter our home. Our grandsons have witnessed and fell victims to this violence, not only once but twice. What impressions has it left in their young minds.
In 7 days our home was broken into, we were assaulted, held captives at gun point and maced two times. We have since moved to a small town and have guard dogs. Until the law can protect us we must protect ourselves.
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Thank you for letting me share our story with you.
Mr. CANADY. Thank you, Ms. Childs. Mr. Soltz.
STATEMENT OF EDWIN SOLTZ, ATTORNEY, OVERLAND PARK, KS
Mr. SOLTZ. Mr. Chairman, members of the committee, thank you for letting me speak today.
As you can tell, my interest in bounty hunters began when I received several phone calls, the first on December 20, the second on December 27, from the Childs in the wee hours of the morning. And I'll have to admit that I was somewhat shocked that the bounty hunters came back on December 27 and did the same thing over again.
I'm going to restrict my comments to the legal aspects of this Childs' case, this matter that I had. I filed a lawsuit against the bounty hunters and the bonding company for trespass, assault and various other torts.
And, as you can well imagine, we never got service on the bounty hunters. We could never get them served with papers. Bounty hunters in our community, the Kansas City area, are somewhat hard to find, and just about impossible to get service on.
We served the bail bondsman who hired them; he was available for service and he was served. He filed an answer. In his answer he alleged that these bounty hunters were independent contractors, therefore: ''I have no power to stop them from doing what they're doing.'' He said, ''I hire them on a case-by-case basis, they go out and do their job, their job is to pick up the wanted person.''
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We, in the course of this lawsuit, filed some interrogatories, asking what his relationship was with these bounty hunters, and in the answers, which I have in front of me today, he said that they are independent contractors.
One of the other questions in these interrogatories was, identify the person or persons who supervise these individuals. Was anybody at your company in charge of them, and he said, ''no one from Doane Bonding was in control of them.''
Well, I find that incredible because, as Ms. Childs just got done stating, these individuals called Mr. Doane and asked him what they should do after they entered her home.
Well, I've reviewed the proposed House Bill 3168, and I believe the language in there which I am very glad to see is that this agency requirement, which is very difficult to meet in a lawsuit, will be addressed under this proposed bill. I believe, the bill states, any bounty hunter whether acting as an independent contractor or employee of a surety, shall be considered the agent of the surety of purposes of liability under this Act.
I think that is exactly where we need to be going in this area of the law. The law as it stands is pretty hard to get anywhere on a civil remedy against the bail bondsman, to be quite honest. And then, in the alternative, with not even worrying about whether people are monetarily taken care of or what happens in a law suit, is that the mere thought that a bail bondsman can be sued as an individual and not be able to use this defense, should regulate these bail bondsmen, and make them take the extra effort to make sure they're hiring individuals who have some sort of training in being bounty hunters and doing their job and have some common sense and not just be wild west guys who pull guns out of their trench coats.
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And that's what has been going on in our community, in Kansas City, there's been several shootings. Recently, two bounty hunters were found guilty of criminal assault and sent to prison for shooting the wrong person. They went to a house looking for a Hispanic individual, and shot an African American. This was not even an American, it was an African, from Zaire, I believe. He couldn't even speak English, and they shot him, I guess because he was resisting arrest in his own house for not knowing what's going on.
It's just incredible that this goes on in this day of age, and I think by making them responsible under section 1983, we would be regulating the industry in one sense, and getting them to rein this in. And I believe bounty hunters and bondsmen have their places in society but should be regulated.
Thank you for letting me speak today.
[The prepared statement of Mr. Soltz follows:]
PREPARED STATEMENT OF EDWIN SOLTZ, ATTORNEY, OVERLAND PARK, KS
| Edwin M. Soltz, |
| Attorney at Law, |
| Overland Park, KS, March 10, 1998. |
Congress of the United States,
Committee on the Judiciary,
House of Representatives, Washington, DC.
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Re: Hearing on H.R. 3168: the ''Citizen Protection Act of 1998''
Hearing date: March 12, 1998, at 9:30 a.m.
DEAR COMMITTEE MEMBERS: In December, 1994, I became involved with a matter involving bail bondsmen and bounty hunters. I received a phone call in the early hours of December 20, 1994, from my clients, Linda and Beryl Childs. Ms. Childs told me some men were at her family's front door. They identified themselves as bounty hunters looking for her eldest son regarding his failure to appear in a Missouri Circuit Court. I was later advised that the underlying charge that the man missed court on was a littering offense. My clients advised me that their son did not reside at their residence and had not done so for several years. Nobody in the family had signed for any bond and they were confused by the appearance of bounty hunters. The bounty hunters advised the Childs unless they were let in to search for this individual they were going to knock the door down and come in and that they were armed and were going to take whatever measures were necessary to gain entrance.
While I was still on the phone with my clients, the bounty hunters made good on their threat and broke the front door down and came into the residence. They pulled weapons out of their trench coats and proceeded to harass the family. Subsequently the police were called and when they arrived they informed the family that they could not get involved as this was a civil matter and that the bounty hunters had certain rights under the law to use whatever means necessary to apprehend the individual who skipped out on this bond. Ultimately the bondsman left the scene after the police advised them that they would not tolerate any further violence.
Several days later the bounty hunters again came back to the house in the middle of the night and the whole process started over again. This time the bounty hunters came into the house and pulled their weapons and used pepper mace on the family. During this altercation two minor children were sprayed. The police were called again and this time one of the bounty hunters was charged with assault.
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The bounty hunter was found not guilty of a municipal assault charge later that year. Subsequent to this acquittal, my firm filed a civil lawsuit against the bonding company that hired the bounty hunters as well as against the bounty hunters individually for damages. We were unable to get the individual bounty hunters served with process as they are not the types of individuals who stay in one place very long. If we did get them served, we doubted we could ever collect on a civil judgment. Throughout the litigation the attorney representing the bail bondsman used the defense that the bounty hunters were not acting as an agents for the bail bondsman but rather as independent contractors and that the bail bondsman did not have any control over their actions. Therefore, the attorney argued that no liability should attach to the bail bondsman for the actions of the bounty hunters.
As the law has existed since the last century, bounty hunters routinely have more power than law enforcement agencies to apprehend people who skip out on their bond. This unregulated authority gives bounty hunters the power to break down doors where people have done nothing wrong and to use physical force which could result in injury or death to innocent parties. Further, the bail bondsman is insulated by the independent contractor defense.
The legislation proposed in H.R. 3168 would give individuals, such as my clients, the opportunity to proceed under 42 U.S.C. and Section 1983. I believe that this legislation would control the unregulated use of bounty hunters by bail bondsmen and would have the effect of exercising indirectly control over bounty hunters' actions.
The proposed legislation would not take away the bail bondsman's powers to apprehend a person who fails to appear in court but would curtail the unwarranted use of force that has developed in so many communities over the past several years. In my community there have been shootings of people by bounty hunters who were not in any way involved in a bail bond situation. I would encourage adoption of this legislation as proposed.
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Respectfully Submitted,
Mr. CANADY. Thank you, Mr. Soltz. Mr. Scott is recognized.
Mr. SCOTT. Thank you, Mr. Chairman. And I want to thank the witnesses for creating the public record that makes the legislation, that we're going to consider, possible. These kinds of things should not happen and hopefully our next panel will get into the detail about the legislation so we'll know exactly how to proceed.
I just had a couple of questions. Mrs. Read, you indicated that you had filed suit. Did you indicate what the—is that still pending or completed?
Ms. READ. No, it's been settled.
Mr. SCOTT. It's been settled.
Ms. READ. Yes, a jury found the motel to be 70 percent liable for damages and the bounty hunters 30 percent, of which the bounty hunters did not follow up on the payment. They claimed bankruptcy and got away with nothing.
Mr. SCOTT. They claimed—how much was the verdict for?
Ms. READ. For my 5-year-old, it was $325,000. For my son, my husband and myself, it was $225,000 a piece.
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Mr. SCOTT. Did your lawyer indicate whether or not the bondsman could in fact file bankruptcy on this kind of activity?
Ms. READ. Well, he followed up on it to try to see what the story was with them, but it came down to the fact that their bonds company that they worked with filed bankruptcy and they were bankrupt.
Mr. SCOTT. What State was this? This was in Rhode Island?
Ms. READ. No, this happened in California.
Mr. SCOTT. California. I don't have any further questions, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott. Mr. Hyde.
Mr. HYDE. I don't know about the law in California or Rhode Island, but in Illinois, if there was a finding that this conduct was willful and wanton, and they didn't pay, they could go to jail for up to 6 months. And it's too bad they didn't go to jail.
It is frightening to think that this state of the law persists today in this country, and we're going to do something about it. Thank you.
Mr. CANADY. Mr. Inglis. Mr. Goodlatte.
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Mr. GOODLATTE. Thank you, Mr. Chairman. I appreciate you holding hearings on this issue.
Mrs. Read, did you ever get an opportunity to confront these people after they left? Did you ever see them again?
Ms. READ. I saw them again when we had to appear for court. We went to—we had to fly back out to Orange County to testify for the district attorney's office, but before we got up on the stand, before we got going, the two men pled guilty to assault charges and assault with a deadly weapon and false imprisonment. And they were forced to hand in their guns and not be able to carry a gun for a year, and placed on probation.
Mr. GOODLATTE. Probation? What was their attitude in court?
Ms. READ. They were very cocky. They said they didn't do anything wrong, they did everything by the book, they didn't see why we were pressing charges against them, they couldn't find any reason for the fact that we were upset or that we would have been mentally or physically hurt over it.
Mr. GOODLATTE. Did you ever get any indication of how they had mistaken you and your family for the person they were seeking?
Ms. READ. I personally didn't, no. I've never seen a picture of the person they were looking for any of that.
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Mr. GOODLATTE. And they were not in any way apologetic for——
Ms. READ. No, to this day, I have not heard anything from them—
Mr. GOODLATTE [continuing]. Terrorizing you.
Ms. READ [continuing]. Saying they're sorry or that they're not sorry. Nothing.
Mr. GOODLATTE. Ms. Mason, what about you? Did you ever get an opportunity to confront your attackers?
Ms. MASON. I'm sorry, I didn't hear you.
Mr. GOODLATTE. Did you ever get an opportunity after the incident to see these individuals again and confront them?
Ms. MASON. No, I never saw them again. I only talked to one of them on the phone.
Mr. GOODLATTE. Do you have any way of tracing who they are or finding them?
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Ms. MASON. Oh, they were prosecuted.
Mr. GOODLATTE. Were you in court when they were prosecuted?
Ms. MASON. Not the bounty hunters, no.
Mr. GOODLATTE. They didn't call you as a witness to the incidents that you went through?
Ms. MASON. Yes, they did call me as a witness, but I wasn't in court when the bounty hunters were there.
Mr. GOODLATTE. Really?
Ms. MASON. Really.
Mr. GOODLATTE. Did they plead guilty or were they tried?
Ms. MASON. They pleaded guilty. One of them was convicted and his sentence, I think, was 6 months probation.
Mr. GOODLATTE. Thank you. Anyone else? Ms. Childs, did you have any opportunity to confront these people subsequently?
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Ms. CHILDS. I did in municipal court.
Mr. GOODLATTE. What was their attitude?
Ms. CHILDS. They didn't feel that they did anything wrong, and that if they wanted to come to my house again, they would. They were very argumentative, very threatening.
Mr. GOODLATTE. What was the outcome?
Ms. CHILDS. The outcome was—this is a city court—the judge didn't understand so he wanted to have 2 weeks to read the laws on bounty hunters before he made a ruling; and it took a month. We went to the second, final part of it, and the judge said that he was acting within the realms of a bounty hunter.
Mr. GOODLATTE. Mr. Gerig, is that how you pronounce your name?
Mr. GERIG. Yes, it is.
Mr. GOODLATTE. And I take it this was your daughter?
Mr. GERIG. It was my daughter, and I did have contact through the Georgia Bureau of Investigation, their metro fugitive squad. And he got back to me and he identified who the bonding company was, and who the bounty hunters were, because I could not get any action at the local level to even find out who they were. And he expressed grave concern over bounty hunters also, and does not like the way they operate either.
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Mr. GOODLATTE. Did you ever have an opportunity to talk to the bail bondsman who hired them?
Mr. GERIG. No, I did not. They would never return a call.
Mr. GOODLATTE. Okay, thank you. And what about you, Mr. Soltz. Did you have an opportunity to talk to the bail bondsman?
Mr. SOLTZ. Well, we never really got that far in the lawsuit; the bail bondsman died, and so we settled the case after that. He basically was indifferent about the whole thing. We served him with a petition and he didn't even hire a lawyer until we set it for default. I mean, he just didn't even care.
Mr. GOODLATTE. He didn't have any liability insurance for this, either?
Okay.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman. I want to express my thanks to all the witnesses for your very compelling testimony. I know the legalities sometimes get complex, but good changes in law first start with factual situations that really tell the story and present the need.
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I wanted to follow up with Mr. Soltz first. In the lawsuit that you filed, you said you never got service on the bounty hunter who was involved.
Mr. SOLTZ. That's correct.
Mr. HUTCHINSON. And, in your experience, are bounty hunters what you'd call a deep pocket, somebody that you could go after in a lawsuit?
Mr. SOLTZ. Mr. Hutchinson, I failed to mention that after I said that we never got service. They're the proverbial turnip. I mean, the judgment against them wouldn't be worth the paper it's written on, and there wouldn't have been any collection from them.
Mr. HYDE. Would the gentleman yield?
Mr. HUTCHINSON. Yes, sir, certainly.
Mr. HYDE. I wonder if Mr. Hutchinson would consider an amendment to your bill requiring a Federal license for any bounty hunter that crosses a State line and requiring a bond as a condition precedent to getting the license so they are made financially responsible, so that they can't just say, well I don't have any money, I'm judgment proof, go fly a kite.
These people are acting as police officers and they ought to be—normally I do not like a lot of additional bureaucracy and Federalization, but they do cross State lines and if the States won't licence them, they ought to be of good character and post a surety bond before they can carry a gun and arrest somebody in the middle of the night.
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Would you consider something like that?
Mr. HUTCHINSON. I'd be happy to consider that and I think that there are certainly some changes that might be improvements in the proposal that's here. I do hope, though, that by creating an incentive, because bail bondsmen will have some ultimate responsibility liability-wise, they're going to be sure that whoever they hire as a bounty hunter will meet the requirements that you mention, and so we're trying to set up a market system so that they will be concerned about the people who may hire as bounty hunters. But that's something we certainly need to address, Mr. Chairman. Thank you.
Let me go back, reclaiming my time. In this case, you never got service on the bounty hunters at all, and then whenever you tried to sue the bondsman who hired the bounty hunter, they claimed, ''well, he's an independent contractor.''
Mr. SOLTZ. That's correct and if we would have gone to trial, they might have resulted in a summary judgment, we never even would have got to trial because we really could not prove otherwise.
Mr. HUTCHINSON. Now, are you familiar in your State—is it Kansas or Missouri?
Mr. SOLTZ. It's Missouri.
Mr. HUTCHINSON. Are there any State regulations right now for bounty hunters?
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Mr. SOLTZ. Ms. Childs says there is. I'm not aware of them.
Mr. HUTCHINSON. But it did not give you any relief in these circumstances?
Mr. SOLTZ. It didn't make us have a cause of action against them, no.
Mr. HUTCHINSON. Okay. Now let me go back to Mrs. Read, Pamela Read. In your instance, you sued both the hotel and the bounty hunters, is that correct?
Ms. READ. That's correct.
Mr. HUTCHINSON. And the bounty hunter declared bankruptcy?
Ms. READ. Right.
Mr. HUTCHINSON. And, so again, they were not—even though they were the ones who were liable, they did not have any means for you to recover for your damages?
Ms. READ. Correct.
Mr. HUTCHINSON. And the hotel, there was a 911 call that you placed from you hotel room?
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Ms. READ. Right.
Mr. HUTCHINSON. And I believe this 911 call was played on national television today, parts of that, but it wasn't clear the results of that. Whenever you talked to the police, the bounty hunters talked to the police as well?
Ms. READ. Yes.
Mr. HUTCHINSON. And what was the reaction from the police when they learned that these folks were bounty hunters?
Ms. READ. The police officer that my husband and I were talking to, wasn't talking with the bounty hunters, there was a separate officer on the other side of the parking lot talking to them. He didn't have any idea what the bounty hunter's story was. He didn't even know they were going there, from what I understood. The woman on the 911 call got a call from them, but the police officer himself, he didn't know it was going on.
Mr. HUTCHINSON. Let me ask this to all the witnesses here. My impression from a number of your testimonies is that the police officers in some instances are deferential to bounty hunters. In other words, because they're bounty hunters, they give them latitude. Has anybody had that same impression or experience or want to comment on that?
Ms. CHILDS. They do. They do. They believe, when they come to my home, they could see my door was broken, they could see everything we've been through, but there was nothing they would do other than, there won't be any more violence, Mrs. Childs.
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So make them leave. Well, they wouldn't make them leave.
Mr. HUTCHINSON. Jerry, do you want to comment?
Mr. GERIG. Yes, in our case, the two Acworth police officers thought they were part of the metro fugitive squad which is a State law enforcement agency. At no point did they find out they were bounty hunters until a couple of days later. To the officers credit, they did come back to my daughter's room after the incident, tried to calm her down, gave her their business cards and said, we have never been trained what to do if we were in this type of a situation. They were very sorry about it, but——
Mr. HUTCHINSON. Thank you. And I'm not being critical of the law enforcement personnel, but that is the nature of the law, the authority, the extraordinary powers that are given to bounty hunters. Law enforcement does give them that latitude, and again, that points up the reason for accountability and some responsibility too.
I thank the Chair for giving me some extra time there. I yield back.
Mr. CANADY. Thank you, Mr. Hutchinson.
Your testimony has been very helpful to the subcommittee. We are very grateful to you for your taking the time to be here.
And I just want to personally extend my apology on behalf of the legal order in this country for what you've had to suffer. It should not happen. And this goes beyond innocent, simple mistakes. This is misconduct of the grossest sort, and I believe we need to have in place more effective remedies when it occurs to punish the people who are guilty and hold them accountable and also, more effective means of deterring this kind of conduct in the first instance. We just don't want it to happen and we want to make people understand if they engage in this, or they allow others to engage in this kind of activity, that there is a very serious price to be paid.
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So, with that, we thank you again, and we'll now go to our next panel.
I'd like to begin by asking that our colleague, Representative Jack Quinn introduce a constituent of his who is going to testifying on this panel, who'll actually be the last to testify on the panel. Representative Quinn, I'm delighted that you're here today, and I would have had difficulty pronouncing the name of your constituent, so this gets me off the hook. [Laughter.]
Again, we thank you very much for taking the time to be with us.
Mr. QUINN. Thank you, Mr. Chairman. And I appreciate the opportunity, to all the members, the full committee chairman and others who are here, to move you off your schedule for just a minute. And more than a constituent, our Police Commissioner, Gil Kerlikowske, is with you this morning, who has been to Washington many times, represents the City of Buffalo so well. We're so proud of the work that he's done in the police department, but he will be here this morning to talk to you about your topic and the bill that's under consideration and a tragic situation that we encountered, indeed, in the City of Buffalo. Commissioner Kerlikowske has been instrumental bringing community policing initiatives to Buffalo, and we're pretty proud that we've got some activities happening in Buffalo that are used as models all across the country.
Mr. Chairman, just last month, Officer Robert J. McLellan, 35 years old, was tragically killed in the line of duty as a Buffalo police officer while assisting bounty hunters in their pursuit of a drug suspect who had skipped out on his bail. Officer McLellan was the second police officer to die in the line of duty this past year in the Queen City of Buffalo. The commissioner will explain more of the details that led to that tragedy.
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But I'd like to thank you, Mr. Chairman, and others, for holding the hearing this morning on a topic of grave interest to everybody across the country, and of particular interest to all of our citizens in Buffalo, New York. Thank you very much.
Mr. CANADY. Thank you, Representative Quinn.
First to testify on our last panel of this hearing today, will be Ms. Leslie Hagin who represents the National Association of Criminal Defense Lawyers. The National Association of Criminal Defense Lawyers is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct, and to promote the proper and fair administration of the criminal justice system. Ms. Hagin, we're glad you're with us.
Ms. HAGIN. Thank you very much.
Mr. CANADY. Next will be Mr. Jerry Watson. Mr. Watson is legal counsel to the National Association of Bail Insurance Companies. And we appreciate his willingness to be here to give us their perspective.
Then we will hear from Mr. Armando Roche. Mr. Roche is president of the Professional Bail Agents of the United States and the president of Roche Surety and Casualty Company, Inc., in Tampa, Florida, which is not too far from my district in central Florida.
Next we will hear from Mr. Jonathan Drimmer. Mr. Drimmer is an attorney at the Department of Justice, and is the author of ''When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System.'' He has been recognized as one of the Nation's few experts on the law involving bounty hunters. He was invited here today in his capacity as a private citizen, and not as an employee of the Department of Justice. His views, therefore, are his own, and do not represent in any respect those of the Department of Justice or any Governmental entity or official.
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Next to testify on the panel today will be Mr. Frank Slaton. Mr. Slaton is a professional bounty hunter who comes to us from Mr. Scott's hometown of Newport News, Virginia.
And finally, Commissioner Kerlikowske will testify, and he's been introduced by Representative Quinn.
We thank you all for being here. The contribution that you will make is very important to us. We will ask that you do your best to provide your remarks within 5 minutes although we will not strictly enforce the 5-minute rule, but if you would watch the light, and when it's red, try to do your best to sum up your remarks if you have not concluded by then.
Ms. Hagin, you're first.
STATEMENT OF LESLIE HAGIN, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
Ms. HAGIN. Thank you, Mr. Chairman. Thank you for calling this hearing. Chairman Hyde, good to see you. Mr. Hutchinson, thank you so much for this bill. Mr. Canady, thank you for speaking about the National Association of Criminal Defense Lawyers' mission, which is to promote fairness in the criminal justice system, to ensure due process in America's criminal justice system. We have been at the forefront in calling attention and standing up against law enforcement abuses, and privatized law enforcement abuses of this kind.
Bounty hunting is privatized police work. That is law enforcement abuse, plain and simple. And it's our mission that brings me here before you. And I brought some graphics. Nothing can be as graphic, I think, as the testimony you just heard, in terms of why this legislation is so much needed. But I think it's important, if I might stand up and walk with this mike a little bit, I'm going to try to do this without taking too much time.
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I think it's important that we understand what we're talking about, and I hope folks can see this. Mr. Watson, you're very kind.
Mr. CANADY. I know Mr. Watson's assistance here does not indicate his assent. [Laughter.]
Ms. HAGIN. We're going to sign him up as a member of NACDL very soon.
Mr. CANADY. So, he's very kind to assist.
Mr. WATSON. It's a classic example of doing unto others. [Laughter.]
Ms. HAGIN. Kindly.
This is what we're talking about [showing pictures]. This is photojournalism off the website. These are innocent folks in Los Angeles, strip searched, by people who look like FBI agents. They wear things that say ''agent.'' They've busted into this house; they didn't get a skipper, a bail skipper or a bail jumper.
These are innocent, strip searched citizens in East Los Angeles, abused by reckless bounty hunters who act like law enforcement agents who are privatized law enforcement agents performing a service for State criminal justice systems. They are above the law, these bounty hunters; they can do this without having to abide by any of the fundamental constitutional rights that real agents would have to.
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Here they are kicking down a door. This is available on the web. I might pass it up there, if I may.
Mr. CANADY. Yes, the staff is there behind you. A member of our staff will bring it up when you're done with each.
Ms. HAGIN. [Showing second picture.] How do you get to do this? I have a cousin, Mr. Hutchinson, who's a police officer in Little Rock. I'm very proud of him. Now, he didn't get to be a police officer in Little Rock, Arkansas, by getting onto the website and sending off for a videotape on how to be a bounty hunter, sending off $250 to do it. Although, he would fit the requirements: 21 years old or older, a high school graduate, and he is a U.S. citizen.
Here's another website, ''bounty hunter school'' for those of you that want to get into this business. It says you might make up to $100,000 a year, because you get paid on a contingency when you go seize a body. In Ms. Mason's case it didn't matter that it was an innocent body; they needed the body to get their contingency fee. You might make up to $100,000 a year. My cousin in Little Rock isn't making $100,000 a year. Two-hundred-fifty dollars, 2-day school. That's if you want to go to school. Otherwise, you just send off for the videotape.
''U.S. News and World Report'' says, bounty hunting is now one of the top, hot occupations for the 1990's. But here's what real law enforcement jobs pay, where you actually have to pay attention to the little niceties of fundamental civil rights of the citizenry: police officer, $26,500; special agent for the FBI, $43,000, max; police chief, you don't even make $100,000 a year, you make $91,700.
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[Showing third picture.] And this is what you get when you become a bounty hunter on the web: special I.D., bounty hunter I.D. so when you bash through people's doors, you can flash it; New York State Police Department fake I.D.; U.S. Marshal, if you want to be a Fed; agent garb, looks like an FBI agent.
That's how you get to be a bounty hunter.
Now, the bail industry performs a valuable function, generally, for America's criminal justice system. The last thing that the criminal defense bar wants to see is heavy-handed mechanisms that would bankrupt that aspect of the criminal justice system, so that citizens accused might not get bail before they're actually even tried. That's essential. But it defies common sense and it's frankly, just un-American, to tell American citizens that their rights depend on the luck of the draw of what kind of agent is coming after them performing a core police function for the States. And I don't know if there's any other term for it. But you cannot tell the American citizens that their fundamental rights have been sold off to the lowest police services bidder.
The luck of the draw right now is, if you're fortunate enough, and I don't know another word, to have your fundamental rights violated by an actual police officer, you have real rights and remedies. If you're unfortunate enough to have your fundamental rights violated by one of these website wonders, you have no rights and remedies. It doesn't make any sense, this is a legal weed from the 1800's that's just slip through the cracks, and grow up as though private property was king, superior to all other fundamental rights. Meanwhile, civil rights law has evolved into the modern era, and even privatized guards, privatized prison guards, don't have this kind of power. Even when they're performing a privatized law enforcement function, they're not told they can just violate people's rights with impunity.
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This legislation does something very simple, really, but so important. It brings this weed of bounty hunting into the fold of modern civil rights law.
How can the industry and bounty hunters stand before Congress and the American people today and say, we are above the law like no other; we are given the police power in this country and we don't have to abide by the fundamental rights of the American citizenry? I do not think that they have a good answer, other than the fact that they would like to make profit, and an unreasonable profit, not a reasonable profit, but an unreasonable, unconscionable profit, off of American lives and liberties.
Your bill, Mr. Hutchinson, Mr. Canady, is not going to bankrupt this industry. It is simply going to say, you can make a profit, it's a big business—''U.S. News and World Report'' says it's a booming business and it is a booming business—but you are not going to be able to continue making an unreasonable profit off of fundamental rights and liberties.
And thank you so much for listening today.
[The prepared statement of Ms. Hagin follows:]
PREPARED STATEMENT OF LESLIE HAGIN, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
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Mr. Chairman, Ranking Member Scott, and Other Distinguished Members of the Subcommittee:
I am pleased to speak to you today on behalf of the National Association of Criminal Defense Lawyers (NACDL), in support of H.R. 3168, the ''Citizen Protection Act of 1998.''
Our organization has been at the forefront in standing up against law enforcement abuses. It is in this spirit of commitment against such abuses that I speak to you today. Bounty hunter abuses of citizen rights and liberties are law enforcement abuses, plain and simple.
It should matter not that they are employed by private entities, bonding companies, rather than paid for through a government treasury. They are hired to perform core police functions. And they are allowed to do so simply because their work confers a financial benefit upon state criminal justice bail systems.
You will hear from several innocent American citizens who have been victimized by the misconduct of untrained, unregulated, and unlicensed bounty hunters, performing the core police function of arrest for the benefit of state criminal justice systems. The harms suffered by these citizens are real and substantial. So too should be their rights and remedies.
These victims of abuse should not be expected to accept the current legal fiction regarding bounty hunter abuses. They should not be told by public policy makers that their rights are meaningless when violated by privatized, ''wannabe'' law enforcement officers performing citizen arrests for the state. The current anachronistic law of bounty hunters defies common sense and the American sense of justice. And it flies in the face of the public welfare.
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Citizens should not be expected to accept that they will have an appropriate cause of action and remedies only when their fundamental rights and liberties are wrongfully abridged by a tax dollar-financed law enforcement officer. They should not be told that when their same rights and liberties are violated by a privatized law enforcement officer—performing the precise same, core police function for the benefit of state criminal justice systems—they have will have no civil rights action. In no other area of interstate commerce and civil rights does the government allow businesses to perform core police functions with such impunity.
The law of bounty hunting is a legal weed, an overlooked remnant of 1800s law. As discussed below, it has slipped through the judicial cracks and has been allowed to grow inconsistent with analogous privatized law enforcement jurisprudence.
H.R. 3168 would correct this anomaly. It would bring this area of privatized law enforcement into the fold of modern civil rights law. To do so, it would sensitively, and sensibly, apply legal and market forces to the bail bond companies employing bounty hunters, to inspire them to make certain their agents abide by Americans' fundamental constitutional rights. This is in keeping with the abiding public interest in protecting innocent Americans from bounty hunter abuses. Yet, it is also in keeping with the need to avoid measures that would bankrupt the generally beneficial bail bond industry.
H.R. 3168 says that fundamental federal constitutional rights and responsibilities will apply to bounty hunters and their employing bail bond companies when, and only when, they are performing essential police functions. That is, they are defined as ''state actors'' for the limited purposes of the core police functions they perform as part of their jobs. The need for this congressional clarification of the civil rights statutes has never been greater. See e.g., Jonathon Drimmer, ''A Year of Bounty Hunter Misconduct,'' Legal Times, Sept. 15, 1997 (chonicalling the many episodes of reported bounty hunter misconduct in just the last year); ''Examples of Bounty Hunter Abuses'' (attached). See also Philip E. Fixler, Jr. & Robert W. Poole, Jr., Can Police Services be Privatized, 498 Annals Am. Acad. Pol. & Soc. Sci. 108, 109 (1988) (discussing the ''privatization revolution'' in police services); Denise Baker, ''Cities Fight Crime With Fewer Resources Available,'' Nation's Cities Wkly., July 26, 1993, at 1 (noting rising government expenditures and privatization of government services); Study: Enlist the Private Sector to Deter Crime, Bus. Wire, Apr. 7, 1994 (relating arguments for the increased use of bounty hunters in law enforcement).
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I. BOUNTY HUNTERS AND THEIR BAIL BOND COMPANY EMPLOYERS: ABOVE THE LAW
Like the Subcommittee, we have uncovered numerous examples of abuses by bounty hunters spanning the country. Attached to my statement is a summary of just some of the reported recent cases.
This is a profit-making industry. The bail bond industry, including its bounty hunters, is one that profits from the American criminal justice system. The industry generally performs a valuable function, and it should be allowed to make a profit. But it should not be allowed to make an unreasonable profit, at the direct expense of citizen rights.
To become ''qualified'' to hunt bail skippers, the aspiring bounty hunter need only hop on the Internet, and send off a couple hundred dollars or so to some for-profit Website ''training'' company. He or she will then have bought the right to earn a good living dressing up like an official state or federal law enforcement officer, and engaging in man hunts and arrests, without any of the ''hassle'' of the constitutional standards that are supposed to protect Americans from law enforcement misconduct.
As you will hear victims testify, bounty hunters have invaded the homes of innocent Americans and terrorized them in the mistaken belief that a fugitive was present. They have dangerously impersonated police officers or federal agents, and held guns to the heads of unsuspecting victims. They have kidnaped individuals, ignoring clear evidence that they had ''arrested'' the wrong person. They have manhandled innocent pregnant women, forcing one in Texas to miscarry her unborn child. Just a few weeks ago, they shot an innocent bystander on the streets of Los Angeles through the chest. As last reported, he was in ''grave'' condition. In short, these private law enforcement, Website Wonders routinely violate the most fundamental civil rights of innocent citizens, including the right to be free from unreasonable searches and seizures, and interrogations.
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The key questions for this hearing seem to us to be these:
Why should privatized police officers, called bounty hunters, or ''bail retrieval agents,'' have unbridled powers to arrest their fellow citizens without having to abide by the same fundamental constitutional requirements as tax dollar-financed officers performing the exact same core police functions?
Why should bounty hunters be allowed to maim the national public interest by wielding even more power than is permitted police officers under the United States Constitution, without any of the constitutional responsibilities of such officers?
Perhaps some of the bounty hunter and bail company representatives invited to testify will provide different answers, but we think the bill before you rightly answers these questions:
There is no reason consistent with the national public welfare; and
They should not.
H.R. 3168 will ensure that Americans do indeed have the right to be secure in their persons and in their homes, and that they are protected from all arrests made in violation of their fundamental constitutional rights. Bounty hunter arrests, and the often violent acts that accompany them, would be no exception under the new law.
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II. HOW CAN IT BE THAT BOUNTY HUNTERS AND BAIL BONDING COMPANIES EMPLOYING THEM ARE ABOVE THE LAW?
I understand that another witness at this hearing, Jonathon Drimmer, will be submitting for the record his excellent law review article on the subject of bounty hunting. I will not repeat his thoughtful and exhaustive treatment of how it is current law allows privatized law enforcement officers to operate above the law. I will simply spotlight the key points, and our position on them.
Bounty Hunter Jurisprudence Is Outside the Bounds of Modern Civil Rights Law
The general, anomalous rule under the majority of current civil rights cases is that bounty hunters and their bondsmen employers are not considered state actors, despite their performance of essential law enforcement functions for the financial benefit of the states' criminal justice systems. The law persists in following turn of the century case law defining them as ''purely private actors.'' Indeed, this has remained the general rule despite the rapidly increasing state reliance on bondsmen and bounty hunters to perform essential law enforcement functions.
Why? It is the odd consequence of courts blindly clinging to illogical precedent—refusing to root out of the law, in this one area, antiquated decisions unduly elevating private property, including contracts, as primary to all other fundamental American rights. See e.g., Taylor v. Taintor, 83 U.S. 366 (1873); In re Von Der Ahe, 85 F. 959, 960 (C.C.W.D. Pa. 1898) (holding that the powers of bondsmen and bounty hunters arise ''only'' from private contract). But see Jackson v. Pantazes, 810 F.2d 426 (4th Cir. 1987) (refusing to grant bondsman's motion for summary judgment in Section 1983 case brought by victim of excessive force, because the bondsman was performing acts as part of a symbiotic relationship with the state of Maryland criminal court system, and was thus a state actor for purposes of those acts).
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The result of the general rule is that victims are discouraged from even seeking relief by an unreasonably difficult and sparse landscape of rights and remedies against bounty hunter abuses. This anachronistic aspect of law thrives despite its conflict with the general civil rights law as to privatized law enforcement officers and debt collectors.
This is the point of H.R. 3168. In all other areas of law, such illogical precedents have been discarded. Congress needs to step in now and clarify that the Fourth Circuit U.S. Court of Appeals ruling in Jackson reflects civil rights fact as to bounty hunters when they are engaged in core police functions. This would bring consistency and uniformity to this important area of privatized criminal justice services. It would bring this category of civil rights cases in line with those that are essentially similar. See e.g., West v. Atkins, 487 U.S. 42, 56 (1988) (declaring that a state's contracting of medical care for inmates does not relieve the state of its duties under the Eighth Amendment); Williams v. United States, 341 U.S. 97, 99–100 (1951) (indicating that private, licensed individuals can be state actors when exercising police-like powers); NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 429–430 (1947) (holding that deputized security guards are state actors when performing official functions).
III. WHY NATIONAL CONGRESS MUST ACT
The civil rights problems of the industry are national in scope. Probably the best evidence of this fact is the geographically diverse victim witness panel at this hearing, as well as the tragic Buffalo, New York case involving bounty hunters from Maryland, which a city police commissioner will be telling you about.
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The individual states suffer from a conflict of interest that keeps them generally from doing much about these problems. They have a vested financial interest in low-cost, or no-cost, bounty hunting for the benefit of their criminal justice bail systems.
There have emerged a few state efforts to respond to the problem of untrained, unregulated bounty hunting, despite the fiscal conflict of interest. Some state efforts take the very approach reflected in H.R. 3168, with respect to their own limited jurisdictions.
For example, on January 10, 1997, the Connecticut legislature saw introduction of Connecticut House Bill 5288, which, like H.R. 3168, specifies that bounty hunters are state actors when they are performing core law enforcement functions. The bill ''[p]rovides real remedies to persons who are victimized by the actions of bounty hunters and requires bounty hunters to be bound by the same standards as police officers when they act in a similar capacity in returning bail jumpers to custody.'' The Pennsylvania legislature has the same type of bill before it. Pending Pennsylvania Senate Bill 1113, introduced September 24, 1997, also states that bounty hunters must abide by the same constitutional restraints as police officers. Copies of these state bills are attached for your convenience.
Still, aside from the financial conflict of interest problem, which deters most states from undertaking legislative efforts, the states are incapable of applying basic federal constitutional standards to bounty hunters and the bail bond companies that employ them. Only the national Congress has the ability to so act.
IV. HOW H.R. 3168 WILL IMPROVE CURRENT LAW
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A. State Actor for a Limited Purpose
Once the national civil rights law is clarified by Congress, bounty hunters will be deemed state actors for the limited purposes of their police-like functions. The national civil rights laws, as generally developed by the federal courts, will apply to their police actions. This law will apply to all bounty hunters, no matter where they travel or whom they harm. It will protect all citizens harmed by reckless bounty hunters and the bail bond companies that unreasonably employ them, no matter where the citizens live.
We do not think Congress should, or constitutionally could, define the specific constitutional rights case law to be applied by the courts under Section 1983, once the statute is clarified by Congress to apply to bounty hunters. But we think it is clear that the amended statute would define bounty hunters and bondsmen as state actors for limited purposes—that is, only when they are performing core police functions (i.e., seizures of persons who have skipped bail, and the other core police functions undertaken as essential to making such seizures or arrests). The law is clear that persons and entities may be so defined as state actors for limited purposes.
Under the legislation, the bounty hunter or bondsman would not be considered a state actor and would not be subject to Section 1983 jurisdiction and analysis, unless performing essential law enforcement functions. Thus, for instance, the government standards of employment required under Section 1983 will not apply to bounty hunters and bondsmen. Their employment practices are not part of the basic law enforcement functions that bring them under the state actor category for the limited purposes contemplated by the legislation. Of course, a bondsman, just like any other private employer, is already subject to the general laws against employment discrimination, under Title VII, etc. This would remain true. H.R. 3168 has nothing to say about it.
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B. Fourth Amendment Right to Privacy, Fifth Amendment Right Against Self-Incrimination
Just like tax dollar-financed police officers performing the exact same functions, the basic Fifth Amendment Miranda and Fourth Amendment protections of the citizenry would apply to bounty hunters, when they are performing their core seizure functions. These include the right to be free from unreasonable bounty hunter searches and seizures, the right to ''knock and announce'' notice essential to the safety of all involved, and the right to be free from coercive, tricky or otherwise unreasonable bounty hunter questioning.
We do not think bounty hunters should be required, at least as a federal law matter, to seek search warrants from state and local authorities in order to do their jobs. The bail contract is their warrant. But they are only supposed to retrieve a bail skipper back to the oversight of the court with jurisdiction over the person, per the bondsman's contract. They should not be in need of, or looking for, evidence of any sort, including incriminating statements. Moreover, any evidence a bounty hunter might happen to see and seize would not be relevant to the bounty hunter's job concern.
Note, though, that the normal rules of search and seizure include the ''plain view'' doctrine. Thus, evidence not searched for by bounty hunters, but rather, found in their ''plain view'' while performing their legitimate police function of seizing a bail skipper, would seem admissible, just as it would be if found by a tax dollar-financed police officer performing the same task. But again, evidence found through such ''plain view'' should be all that a bounty hunter ever legitimately obtains through the course of his or her work, since, by definition, a bounty hunter is not supposed to be conducting searches, but is only supposed to be retrieving bail skippers.
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Another question that has come up is whether seizure warrants will be required under H.R. 3168. Some states (e.g., Texas) require bounty hunters to obtain a warrant from a state magistrate, authorizing them to seize a person, before conducting such a seizure. We think this is an additional safeguard that the states should remain free to establish for their citizens. But as long as Americans' basic constitutional rights are protected against bounty hunter abuses through the federal civil rights law, we think the decision as to whether to require bounty hunters to secure state seizure warrants should be left up to the states.
In sum, when a bounty hunter is performing the core police functions that make him a state actor for limited purposes under the legislation (making a seizure of the person who has skipped bail), the general Fourth and Fifth Amendment standards will apply. Because the bounty hunter has no legitimate business conducting searches or interrogations, this is essential to protect Americans' fundamental rights. The federal law already recognizes as much in the current Federal Debt Collection Procedures Act (''FDCPA''), 15 U.S.C. Sections 1692–1692o, which strictly and comprehensively regulates the types of contacts debt collectors may initiate with debtors.
Among its provisions, the FDCPA prohibits collectors from making threats, assaults, and oral or written misrepresentations. The Act also requires that debt collectors offer a ''mini-Miranda'' statement when confronting a debtor, which includes informing the debtor that the collector is seeking to enforce a debt, and that any statements by the debtor can be used against him for that purpose. 15 U.S.C. Sec. 1692 (e)(11). The bounty hunter situation is highly analogous. Bounty hunters are debt collectors. They are enforcing the debt owed by the defendant-bail ''skipper'' to the bondsman, who has employed the bounty hunter to collect that debt on the bail contract. The only difference is that the bounty hunter enjoys vastly greater authorities than do ordinary debt collectors .
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V. H.R. 3168 WILL NOT CHANGE LAW OF STATE AND LOCAL GOVERNMENT LIABILITY
Potential liability will run under this legislation to the bail bond company that has recklessly, dangerously, and unreasonably hired or trained an abusive bounty hunter. But we think it is clear that this bill would not render state and local officials or entities (e.g., municipalities) subject to liability under the federal civil rights laws, for the misconduct of bounty hunters acting as ''state actors'' for the limited law enforcement functions delineated by the bill.
It is well-established that a state or local authority cannot be held liable simply because it employs a wrongdoer. A municipality cannot be held liable under Section 1983 on a respondeat superior theory. See Monell v. Department of Social Services, 436 U.S. 658 (1978). Under Section 1983, a local government can be sued for monetary, declaratory or injunctive relief, but only if the action that is alleged to be unconstitutional implements or executes ''a policy statement, ordinance, regulation, or decision officially adopted and promulgated'' by the officers of the relevant government entity, or has been taken ''pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decision-making channels.'' Monell, id., at 690–691. State and local authorities may not be held liable for a mere failure to protect citizens. A pattern or custom of practice by the authorities must have affirmatively given rise to the harm, in order to establish the necessary nexus to the municipal or state government authority under Section 1983. See DeShaney v. Winnebago County Dept. Social Services, 489 U.S. 189 (1989).
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It appears clear that any nexus between state and local government authorities, and bondsmen or bounty hunters, is far too tenuous to subject the authorities to liability for bounty hunter misconduct under current Section 1983 law. And the bill would not change this. Defining bounty hunters as state actors for limited, police function purposes will not render state and local authorities liable for the actions of rogue bounty hunters, over whom (unlike official police personnel) they bear no affirmative responsibility.
VI. H.R. 3168 WILL NOT PREVENT DUE BAIL, NOR BANKRUPT THE INDUSTRY
All states place a cap on the amount that the bail bond companies in their jurisdictions may charge accused citizens for bail services. It ranges between seven and ten percent of the total bail amount set by the court. We do not think there is a real risk that any possible increase in insurance premiums for bonding companies, arguably engendered by this legislation, will be passed through to citizens accused who deserve bail. Nor do we think the legislation will result in an unintended consequence of increased jail crowding.
These businesses will get insurance just like all other risky businesses do—by making sure they conduct themselves with care and in accordance with the law, and hire well-trained personnel. Joint and several liability like that which would be achieved through this measure exists in a few states—e.g., Florida, North Carolina, and South Carolina. Under this system, the bail bond industries there continue to grow at a healthy rate.
The question is not whether this industry of extraordinary private police powers can continue to be profitable with the addition of minimal federal constitutional safeguards. Rather, the question is whether it should be allowed to make an unreasonable, unconscionable profit—at the direct expense of societal safety and citizen rights. We think this bill gets it right by using market forces to allow the industry to continue growing, but no longer at the undue expense of innocent American lives and liberties.
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CONCLUSION
Thank you again for this opportunity to be heard on the need for H.R. 3168. We applaud the legislation. And we look forward to helping Congress in any way we can to bring it into law for the protection of the American People.
ATTACHMENT A
EXAMPLES OF BOUNTY HUNTER ABUSES
'Mistaken Identity' Once Too Often
A jury soundly rejected the defense argument of mistaken identity and convicted two bounty hunters, Philip McFarland and Edward Green, of second-degree burglary for raiding a home in search of a man who had jumped bail. They had crashed into the trailer belonging to Wendell Leach, Sr. in the middle of the night on March 18th, in the mistaken belief that Mauricio Gomez, a fugitive from justice, was inside. Instead, they burst upon the Leach family, most of whom were asleep. The family was pleased with the verdict; Mrs. Leach stated that the bounty hunters ''deserve[d] what they got for what they did . . .'' McFarland and Green could receive up to 10 years imprisonment.
The mistaken identity argument had worked for McFarland and Green when on trial in June, 1997 for similar charges, when they received a verdict of not guilty. With a .500 batting average, it is likely that they will assert the mistaken identity defense again in their September 22, 1997 trial for breaking into another innocent family's home.
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| Des Moines Register, August 22, 1997 |
Impersonating Police
Escape Bail Bonds hired bounty hunter Terry Lee Merrill to locate and arrest Robert Mitchell, who had jumped bail. Instead, police arrested Merrill on suspicion of menacing, impersonating a police officer, and for two counts of false imprisonment after Terry Lee pulled a gun, claimed to be a narcotics officer, and handcuffed the wrong individual, Robert Eye.
Eye reported that Merrill knocked on his door and requested assistance with his car, which had supposedly broken down. When Eye walked out to help, Merrill pulled out a gun, held it to Eye's head, ordered him to the ground, and handcuffed him. Eye's wife demanded identification, which Merrill said he did not need to show because he was a narcotics cop. Only after Merrill was shown Eye's wallet and ID did he remove the handcuffs. He then demanded that Eye and his family show him where bail jumper Robert Mitchell lived. The family refused, and Merrill left. Police arrested Merrill a few blocks from the Eye residence. Escape Bail Bonds had hired him despite a criminal record that includes convictions for robbery and burglary. Merrill was not unknown to the agency—in fact, they had posted bail for earlier criminal charges against him.
| Rocky Mountain News, July 10, 1997 |
| Denver Post, July 10, 1997 |
'Open Up or Else'
The ringing of a doorbell awakened Lisa Sylvester after midnight. She could barely make out two men dressed in black outside her door and a dark van blocking her driveway. They identified themselves as ''agents with the Division of Bail Enforcement'' and ordered her to open the door. Instead, she dialed 911.
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Arriving police questioned the self-proclaimed agents, who were armed with pepper spray and handcuffs. Employees of a company known as ''Division of Bail Enforcement,'' the men admitted to the police that they were prepared to break down the door to Ms. Sylvester's house to search for a bail jumper who, according to court records, resided at that address. Despite their intrusion, neither man was charged.
| Providence Journal-Bulletin, April 4, 1997 |
Price of Terror
A Southern California vacation for a Rhode Island family came to an abrupt halt on October 9, 1994. Late that evening, two bounty hunters in search of a bail-jumping prostitute kicked in the door to the family's motel room, screamed curses at the stunned family, threatened them at gunpoint, and held a gun against the mother's head until they realized she was not the fugitive they were after. The bounty hunters were each charged with four felony counts of false imprisonment by violence but pleaded guilty in November 1995 to lesser counts of assault with a firearm.
A Los Angeles County Superior Court jury awarded the family $1.15 million for the incident in a subsequent civil suit that named as co-defendants the bounty hunters and the motel manager who had provided them a key to unlock the door's deadbolt.
Whisked to Alabama
On July 18, 1994, Jrae Mason was snatched off her New York City stoop by bounty hunters, handcuffed, and informed she was about to return to Alabama, where she had jumped bail. Despite her protests and production of a photo ID bearing the name ''Jrae Mason,'' the arresters insisted that she was Audrey White Smith, wanted for skipping out on a felony bail. Ms. Mason's protestations continued at the local precinct, Bronx Central Booking, and Manhattan Central Booking to no avail. Even though a fingerprint check verified that she was who she said she was, no one stopped the extradition.
It was not until Ms. Mason reached Tuscaloosa County Jail in Alabama that a jailer measured her height and compared her appearance with the fugitive photograph the bounty hunters had. When a jailor discovered the error, he insisted that the bounty hunters return Ms. Mason to New York. To comply, they bought Ms. Mason a $24 bus ticket to the Port Authority Terminal. Although no criminal charges were filed, a civil suit by Ms. Mason resulted in a federal jury award of $1.2 million. The Port Authority must pay $250,000 for assisting the bounty hunters. Barretta Bail Bonds Co. and the Confidential Inquiries bail-recovery firm are responsible for the remaining sum. New York City settled earlier for $150,000.
| Newsday, September 13, 1996 |
| USA Today, September 13, 1996 |
ATTACHMENT B
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NACDL NEWS RELEASE
Citizen Protection Act of 1998
'BOUNTY HUNTER' BILL WOULD ENSURE SAFETY, PROTECT CITIZENS' RIGHTS
Washington, DC, March 12, 1998—''Even though some bounty hunters are ex-convicts, or have otherwise been in trouble with the law, they enjoy broader powers to arrest fugitives than do police officers,'' Leslie Hagin, Legislative Director of the National Association of Criminal Defense Lawyers, told a panel of the House Judiciary Committee today. ''They can legally break into a home without a warrant or probable cause, and can violently arrest, shackle, imprison and even transport suspects across state lines with impunity. Because they are acting as privatized law enforcement officers, bounty hunter abuse of innocent citizens is law enforcement abuse, plain and simple.''
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Hagin was testifying in support of H.R. 3168, ''The Citizen Protection Act of 1998,'' which would hold bounty hunters to the same laws and constitutional constraints as police.
The bipartisan bill was introduced February 5 by Representative Asa Hutchinson (R–AR), a former United States Attorney, and is co-sponsored by House Constitution Subcommittee Chairman Charles Canady (R–FL), the Ranking Democrat on the House Judiciary Committee, John Conyers (D–MI), and many others from both parties.
Bounty hunters are the agents of bail bondsmen whose clients have ''skipped'' bail. Decisions whether to release citizens charged with a crime back into the community after arrest are made by a judicial officer after considering whether the defendant poses a risk of flight. Sometimes a money bond—bail—is imposed on the defendant in order to ensure his return to court after release.
If the defendant cannot afford to pay the bail bond himself, he will often turn to a bonding company, or ''bondsman,'' in exchange for a percentage of the bail amount, usually 10 percent. Part of the bond contract is a clause permitting the defendant's recapture by ''whatever means necessary'' should he fail to appear for trial. If the defendant does not show for trial, the bondsman will lose the full amount of the bail unless the defendant can be returned to custody. Often this is accomplished by ''putting a bounty on the head'' of the defendant—in effect, a reward for forcible recapture with little or no consideration for the rights of the suspect, or anyone else (including an innocent bystander) who happens to get in the way.
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NACDL President Gerald B. Lefcourt issued a statement from New York in support of the legislation:
''Americans I've spoken with have been shocked to learn that while they are protected from abuse by law enforcement officers, they are not protected from the exact same abuses by bounty hunters violating the same rights, in the same ways, while performing what is essentially a police function. Thankfully, it looks like Congress is on the verge of correcting this dangerous oversight.''
The main purpose of the legislation is to protect innocent citizens from reckless armed goons. It imposes no substantial burdens on the hundreds of law-abiding bail recovery agents. Hagin noted that the bill:
Subjects bail bond sureties and bounty hunters to liability for violations of federally protected rights under Federal civil rights laws.
Considers any bounty hunter, whether an independent contractor or an employee of a bail bonding company (surety), to be agents of the surety for purposes of liability and requires liability insurance for bail-bond companies who hire bounty hunters. Presently, some less-than-scrupulous bonding companies try to escape their legal obligation to pay for damage to lives and property by reckless bounty hunters by claiming that the agents are ''independent contractors'' rather than their employees.
Establishes a duty on the part of each bail bond surety and bounty hunter who intends to gain custody over a person in a different state to inform local authorities of their intent. This minimal disclosure requirement will help to ensure that the homes of innocent citizens are not broken into and innocent Americans inadvertently kidnapped or injured.
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''We think this bill gets it right by using legal and market forces to allow the industry to continue, but no longer at the expense of innocent Americans' lives and liberty,'' Hagin concluded.
The hearing before the Constitution Subcommittee of the U.S. House Judiciary Committee begins today at 9:30 a.m., in Room 2141, Rayburn House Office Building. The subcommittee will be hearing from several innocent victims of bounty hunter abuses, as well as industry representatives. Also appearing will be R. Gil Kerlikowske, Police Commissioner of Buffalo, NY and President of the Police Executive Research Forum (PERF), who supports the legislation.
NACDL is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's almost 10, 000 direct members—and 80 state and local affiliate organizations with another 28,000 members—include private criminal defense lawyers, public defenders, active-duty U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system.
Mr. CANADY. Thank you, Ms. Hagin. Mr. Watson.
STATEMENT OF JERRY WATSON, COUNSEL, NATIONAL ASSOCIATION OF BAIL INSURANCE COMPANIES
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Mr. WATSON. Thank you, Mr. Chairman and members of the committee, on behalf of the National Association of Bail Insurance Companies. And I should like to express our appreciation for the privilege of appearing before you this morning. Also, Mr. Chairman, a complete set of my remarks and attendant legal authorities supporting them, have been distributed according to our instructions and I would appreciate those being made a part of the record of the committee.
I will try to stay within the 5 minutes allotted to me to summarize that statement, however, I had gotten up early this morning and written down in the hotel room 5 minutes worth of summary for what I had already submitted in writing, and I'm not going to do that. I want to say something else, and I feel compelled to do it because of the things I've heard here today.
I have been touched by the stories I've heard, and I am afraid that perhaps the members of this committee and their staff will consider that the industry that I represent, the insurance companies who appear as sureties on criminal court appearance bonds in this country, I'm very concerned that you folks may feel that we are a callous and uncaring people, and that's why I want to depart from my prepared remarks and I asked a gentleman a while ago if we would go down the hall to some congressman's office, and I said, call my office and get them to fax to us here a copy of the letter that was sent out the middle of last year by the president of the National Association of Bail Insurance Companies. And I want to take just a couple of minutes of my time to read this letter, if I may.
This letter was sent out to the chairman of every senate and house judiciary committee in the United States of America:
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''Dear Senator or Representative,''
And it was personal, to each of these people, it was merged through a computer and it was sent out to them personally because we have them all in our database in the office. So, this would be, ''Dear Senator Smith,'' for example.
[Reading.]
''Much attention has recently been drawn to the subject of bounty hunters, those who contract to apprehend and return to custody defendants who are on the run after skipping out on their court appearance. Various quarters call for curtailing or even disallowing the practice of these bounty hunters labeled, 'throwbacks to an earlier time.'
''For example, the National Association of Criminal Defense Lawyers and the National Association of Legal Investigators are urging legislative action. The insurance companies making up the membership of our association agree. We appear as surety on the great majority of all commercial court appearance bonds in this country. And we believe responsible State legislation is needed to address the bounty hunter situation.
''We concur with those who hold that eliminating 'bounty hunting' would violate a legally recognized principle. This, however, is different than depriving the financial surety on a bond from his right to apprehend. Upon the abscondance of a defendant on bond, the surety, who is thereby placed in financial jeopardy, has always had the right in this country to retrieve that defendant. Nevertheless, we fully recognize that in exercising this right, the surety must act responsibly and in keeping with the highest regard for the public's safety. Therefore, we encourage you to please consider the attached model bill.''
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And I might stop at this point and tell you that we very carefully crafted a proposed model bill for the States.
[Reading.]
''It is designed to accomplish three major goals:
''No. One: The elimination of the practice of bounty hunting and making the same of criminal offense. No. Two: The preservation of the established legal right of a bail surety to protect his interest. And, Three: The imposition to ensure public safety, of strict regulation on the apprehension activities of the bail surety.''
And it goes on to solicit their calling us so we can offer support for such legislation.
I'm happy to tell you that in many, many States, we've had positive responses, and samples of those model bills have been introduced. My office just faxed me this morning to the hotel five or six more that have come in and we're working with these legislators. Here's one from Rhode Island, one from Washington, one from Missouri, one from New Hampshire, one from Tennessee, one from Colorado.
The gentleman who is going to speak after me will explain to you how Florida, I'm sure, has already abolished bounty hunting in their State. California is doing the same thing; Texas has already done the same thing.
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And I know that my time is up; I had so much more that I wanted to say. But I will close by mentioning this: rather than imposing strict liability on the insurance companies who appear as sureties on criminal court appearance bonds and allowing them absolutely no defense and declaring in this proposal that the bounty hunter is as a matter of law the agent of that insurance company, and that insurance comply thereby is caused to be automatically a liability insurers of the bounty hunter with the insurance company having absolutely no defenses. Rather than doing that which certainly, at the very least, would deprive those companies of their Fifth Amendment due process rights.
Rather than doing that, do what Congressman Hyde suggested, except make it stiffer. Go ahead and declare, by law, that a bounty hunter is in fact a state actor and, therefore, subject to the litigation privileges of injured plaintiffs under section 1983. But, require as a part of his ability to perform his trade, that he be covered by $1 million liability policy and then we insurance companies can make certain that no bounty hunter is ever employed for any purpose if he does not demonstrate to us that policy being in force and in effect at the time he does his work.
Thank you very much.
[The prepared statement of Mr. Watson follows:]
PREPARED STATEMENT OF JERRY WATSON, COUNSEL, NATIONAL ASSOCIATION OF BAIL INSURANCE COMPANIES
Mr. Chairman, members of the Committee, my name is Jerry Watson. I am legal counsel to the National Association of Bail Insurance Companies, and I am here today on their behalf to speak in opposition to H.R. 3168.
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First, I would like to thank the Chair for allowing me to be here today.
Second, permit me to commend the Resolution's sponsors, and their staff who have worked on the measure. The good intentions behind H.R. 3168 are obvious and the laudatory purpose of H.R. 3168 is made plain by it's title. A very legitimate concern is addressed.
Of the people arrested each year on state court criminal charges, some 4,000,000 are released, pending trial, on a financially guaranteed appearance bond. A bail bond, if you will. According to the 8th Amendment, this is as it should be.
The persons who then posted bonds are very successful in getting the vast majority of these defendants back to court. Of course, the incentive to do so is there. If he does not get the defendant to court, the bail bond forfeits and the person who put up the bond must pay it off. So he works hard to make sure the defendant on bond makes his court dates. Usually that occurs.
Unfortunately, though, a small percentage of these 4,000,000 defendants, each year, fail to appear. On average, nationally, this amounts to about 7 or 8% of those released on commercial appearance bonds.
Of this 7 or so percent who fail to appear, a much smaller percentage are on felony charges. And in these cases, the bonds are much larger. Each state has it's own rule as to how much time the bondsman has to get the absconded defendant back into custody of the local sheriff before the bond must be paid. The person who puts up the bond has the right to recover and surrender back into custody this defendant (Taylor v. Taintor, Treasurer, 83 U.S. 368).
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Enter the bounty hunter. He is contracted by the bondsman to retrieve this bail fugitive.
There has been much attention given of late to situations where a bounty hunter, in the process of recovering a bail fugitive, has negligently harmed an innocent party or has overstepped the bounds of permissive force and unnecessarily injured the defendant.
Does something need to be done about this? Certainly.
Are stronger controls and more incentive for these bounty hunters to act responsibly necessary? Absolutely.
Should this practice of bounty hunting be done away with all together? Probably. The National Association of Bail Insurance Companies has advocated this for some time now.
And, as we read it, H.R. 3168 attempts to force the bounty hunter to be more responsible in his work. It proposes to do this by expanding the financial penalty environment when the bounty hunter acts improperly.
This would be a good thing, but we fear that the good in H.R. 3168 may very well be the enemy of the best.
I. It would be the best for the states to do this on their own.
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And, this is exactly what they are, in fact, doing.
In a number of states, this annual session, Bills are introduced to dramatically tighten down on bounty hunter regulation with much stricter penalties being imposed for wrongdoing. Some states have Bills for completely eliminating bounty hunting and in some states, Florida being an example, the practice has already been outlawed.
This is clearly a state-related problem. Why involve the federal government if it is not necessary to do so?
II. It would be best to follow the lead of the Courts in deciding in how the U.S. Civil Rights Statutes should be implemented.
Federal Courts have held: (1) that private use of a state sanctioned remedy is not state action, (2) that state action is normally present only when the government has actually encouraged, overtly or covertly, the choices made by the private actor, (3) that even extensive regulation is not enough to support a finding of state action, (4) that the state must support and be directly involved in the private person's conduct for state action to lie and that the test for deciding if a private actor's conduct rises to the ''state action'' quality must be decided on a case-by-case basis and is a fact-specific inquiry.
H.R. 3168 runs clearly counter to all this law.
III. It would be best not to create new law where no new law is necessary.
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The law H.R. 3168 seeks to expand, 42 U.S.C. §1983, was put in place to give persons the ability to seek redress in federal courts where no remedies were available at the local state level.
There is a total lack of evidence, of any kind, that a person wronged by a bounty hunter cannot have those wrongs fully and adequately redressed in state courts.
Certainly, every state in America permits recovery for assault and battery, false arrest, false imprisonment and defamation. And if these acts were egregious and occasioned by gross negligence, the recovery can be enormous. Further, such acts can, at the state level, be considered criminal acts and punishable as such.
One is, respectfully, driven to inquire: why is H.R. 3168 considered necessary? What is sought to be accomplished for an injured party beyond that which is already available? What is the Bill's purpose?
There, upon examination, seems to be no call for expanding the established jurisprudence under §1983.
IV. It would be best not to penalize innocent parties.
In the 100 plus year history of §1983 the doctrine of respondeat superior, as a part of the statutory scheme, has been rejected.
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For example, it has been uniformly held that to impose liability on one entity for the wrong committed by another person, it must be shown that the entity to be held jointly liable was involved in the wrong committed.
Yet H.R. 3168 seeks to reach out into the private sector and select a target defendant to hold financially liable for the acts of the bounty hunter when there is no connection between these parties.
H.R. 3168 imposes respondeat superior relationships between the bounty hunter and the surety on the appearance bond while it disregards entirely the very important fact that there is no relationship of any kind between them.
The surety does not hire the bounty hunter. The surety does not authorize anyone else to hire the bounty hunter. The surety has no interest, one way or the other, in the functions of the bounty hunter. The surety has no knowledge of the bounty hunter having been engaged. There is no privity between them. They are pure strangers.
H.R. 3168 ignores the fact that the surety does not hire the bounty hunter and has no control over the person who does hire the bounty hunters.
H.R. 3168 makes the surety, automatically and fully, vicariously liable for the acts of the bounty hunter.
In conclusion: if it would be better for the federal government to allow the states an opportunity to solve their own problems when it is obvious they are doing so, and if the advice of the U.S. Supreme Court should be considered, and if it would be advisable not to create new federal law where none is necessary, and if innocent parties should not be punished, then H.R. 3168, as drafted, should be defeated.
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POINTS & AUTHORITIES
MEMORANDUM
To: Honorable Representative Charles Canady, Chairman, House Sub-Committee on the Constitution
From: The National Association of Bail Insurance Companies
Re: H.R. 3168: the ''Citizen Protection Act of 1998.''
This review of the proposed legislation to be called the ''Citizen's Protection Act of 1998'' reveals that in the main, this proposed legislation would enact several major changes to existing law by expanding potential liability under 42 U.S.C. §1983. In order to understand the nature of these changes it is necessary to understand the existing state of the law.
42 U.S.C §1983 is one of several statutes enacted by Congress soon after the end of the Civil War. At that time, Congress was particularly concerned about the protection of the civil rights of newly-freed slaves in the states that had been part of the Confederacy. There were reports about wide-spread abuses directed at these citizens that were being carried out by state officials or by private persons who had the assistance of state officials. Moreover, there were concerns that existing common-law remedies might be ineffective to remedy these wrongs. Chief among these concerns was the belief that an African-American citizen would be unlikely to receive justice from a state court judge or jury in these southern states. Accordingly, Congress created a federal remedy for the deprivation of any federal right by any person acting under color of state law.
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In its early years, most of the cases brought under §1983 were cases involving violations of civil rights by southern officials. However, the statute was never limited to wrongs committed in southern states, and it was not limited to violation of civil right. Rather, is has always been a very broad remedial statute. In the modern era, §1983 has become the primary vehicle for the enforcement of a wide range of federally protected rights.(see footnote 1)
Sec. 1983, however, is not a remedy that is available whenever a person's federally protected rights have been violated. Cases have developed an extensive body of law dealing with two very important limitations upon the remedy. First, the defendant must have been acting under color of state law. Second, a person cannot be held liable under §1983 on a respondeat superior theory. The proposed legislation would significantly change each of these important limitations.
The Requirement of State Action
A great deal of jurisprudence has developed concerning this requirement. When a person clothed with state or local official authority acting pursuant to that authority violates a person's federally protected rights, the state action requirement is easily satisfied. For example, a sheriff who wrongfully arrests a person is acting under color of state law because he makes the arrest under authority of his position as a state or local official. This kind of situation is easy with respect to the state action requirement of §1983.
More difficult are cases in which a private person violates a federally protected right. In these cases, the courts have held that there is no state action unless there is a ''symbiotic relationship'' between the private actors and the state. The test is whether the overall interest of the government and the private actor overlap to such an extent as to virtually coincide. Chan v. City of New York, 803 F.Supp. 710 (S.D. N.Y. 1992), aff'd 1 F.3d. 96, cert. denied 114 S.Ct. 472.
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Generally, private use of a state-sanctioned remedy is not deemed to be state action, but extensive use of overt, significant assistance of state officials may lead to a finding of state action. Apostol v. Landau, 957 F.2d 339 (7th Cir. 1992). The state's mere approval of or acquiescence in private action is not sufficient to establish state action. The state can normally be held responsible for private action only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choices made by the private actor should be deemed to be those of the state. Integrated Information Service, Inc. v. Mountain States Tel. & Tel. Co., 739 F.Supp. 488 (D. Neb. 1990). Even extensive and detailed regulation is not generally sufficient to support a finding of state action. The state must affirmatively support and be directly involved in the specific conduct being challenged. Cannon v. Univ. of Chicago, 559 F.2d 1063 (7th Cir. 1976), rev'd on other grounds 99 S.Ct. 1946. Many courts have emphasized that the test for determining whether a private actor's conduct should be deemed to be state action is a fact-specific inquiry that must be decided on a case-by-case basis.
Using these guidelines courts have held that a citizen's arrest for trespass is not state action, Carey v. Continental Airlines, Inc., 823 F.2d 1402 (10th Cir. 1987), and that a private store's detention of a shoplifter is not state action, Zebrowski v. Denckla, 630 F.Supp. 1307 (E.D. N.Y. 1986). Similarly, the fact that the defendants were licensed by the state as private detectives and were authorized by state statute to detain suspected thieves did not mean that they were acting under color of law. Weyandt v. Mason's Stores, Inc., 279 F.Supp. 283 (D. Pa. 1968).
In the context of bail bondsmen, a number of courts have considered whether state action was present when the bondsmen brought back into custody persons whose appearance the bondsmen had guaranteed. Like any other private actor case, these cases depend upon the specific facts. For example, courts have found that bondsmen were acting under color of state law when they sought and received extensive assistance from local law enforcement officials. See, Jackson v. Pantazes, 810 F.2d 426 (4th Cir. 1987); Bailey v. Kenney, 791 F.Supp. 1511 (D. Kan. 1992); Hill v. Toll, 320 F.Supp. 185 (D. Pa. 1970). On the other hand, courts have found no state action when the bondsmen acted alone and without such assistance. Hunt v. Steve Dement Bail Bonds, Inc., 914 F. Supp. 1390 (W.D. La. 1996), aff'd 96 F.3d 1443; Ouzts v. Maryland Nat. Ins. Co., 505 F.2d 547 (9th Cir. 1974), cert. denied 95 S.Ct. 1681; Landry v. A-Able Bonding, Inc., 75 F.3d 200 (5th Cir. 1996). In the latter case, although Louisiana law allowed a bail bondsman to obtain and execute a warrant for the arrest of a person who failed to appear in court and although the defendant bondsman had such a warrant, the court found that he was not acting under color of state law because he did not display the warrant, purport to rely upon it or enlist the help of any local law enforcement officials in executing it. Id. At 204–05. He was thus not clothed with state authority at the time of the conduct at issue.
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The proposed legislation would abandon this well-established case-by-case inquiry into the existence of state action and replace it (only in the case of claims against bondsmen) with an a priori rule that deems them to be state actors for purposes of claims brought under §1983.
Respondeat Superior
A second major limitation upon §1983 claims is that a person cannot be held liable under §1983 on a respondeat superior theory. For example, in order to impose liability upon a governmental entity because of a wrong committed by an employee of that entity, a plaintiff must show that the employee's wrongful conduct was caused by an official policy of the final decision-makers of the governmental body. Monell v. New York City Dept. of Social Services, 98 S.Ct. 2018 (1978); City of Oklahoma City v. Tuttle, 105 S.Ct. 2427 (1985). The policy can be formal or informal, but the conduct must directly flow from that policy. Thus, it can be said that the governmental entity itself was involved the commission of the wrong.
With respect to supervisory liability, the test is similar. Neither respondeat superior nor negligent supervision of subordinates will support a claim under §1983. Wilson v. City of Chicago, 6 F.3d 1233 (7th Cir. 1993). The plaintiff must show personal involvement by the supervisor in the unconstitutional conduct. Green v. Bauvi, 46 F.3d 189 (2nd Cir. 1995). Accord, Eason v. Thaler, 73 F.3d 1322 (5th Cir. 1996). Federal courts of appeals have uniformly held that, in general, a supervisor can be held liable under §1983 only when the facts show personal participation or a direct causal connection between the actions of the supervisor and the wrong. Hegarty v. Somerset County, 53 F.3rd 1367 (1st Cir. 1995); Black v. Coughlin, 76 F.3d 72 (2nd Cir. 1996); Keenan v. City of Philadelphia, 983 F.2d 459 (3rd Cir. 1992); Lopez v. Robinson, 914 F.2d 486 (4th Cir. 1990); Thompkins v. Belt, 828 F.2d 298 (5th Cir. 1987); Knop v. Johnson, 977 F.2d 996 (6th Cir. 1992); Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996); Burgess v. Moore, 39 F. 3d 216 (8th Cir. 1994); Mackinney v. Nielson, 69 F.3d 1002 (9th Cir. 1995); Gagan v. Norton, 35 F. 3d (10th Cir. 1994); Dean v. Barber, 951 F.2d 1210 (11th Cir. 1992).
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The proposed legislation appears to attempt to impose such respondeat superior liability upon the surety on a bond for the acts of any bounty hunter who seeks to obtain or exercise custody over a person admitted to bail. Thus, the bill would impose liability upon the surety without proof that the surety was involved in the unconstitutional conduct complained of. This would be a significant broadening of §1983 liability for only a single class of defendants.
Lack of Justification for these Expansions of Liabili1y
As was mentioned at the outset, §1983 was created as a supplemental federal remedy because of perceptions that local bias might prevent certain citizens from receiving redress for grievous wrongs. Thus, §1983 gave them the ability to seek redress in federal courts that might be less likely to be affected by local bias.
Those justifications do not exist with respect to claims against bounty hunters. There is no evidence that a person wronged by such a bounty hunter would be subject to local bias or would be unable to obtain adequate redress for the wrong. Indeed, every state in the United States permits recovery for the common-law torts of assault and battery, false arrest, false imprisonment and defamation. In most states, these wrongful acts by a bounty hunter are also punishable as criminal acts. Thus, a person wronged by a bounty hunter can obtain complete relief under state law. Moreover, under present law and under appropriate facts, a person wronged by a bounty hunter can already bring a claim under §1983.
There is simply no justification for the proposed abandonment of long-established jurisprudence under §1983.
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Mr. CANADY. Thank you, Mr. Watson. I think we have a vote. We have a series of votes going on on the floor, so we have to go vote. And I apologize to you for the interruption of the subcommittee's hearing. We will come back and resume the hearing as soon as we can. But while the votes are taking place on the floor, the subcommittee will stand in recess.
[Recess.]
Mr. CANADY. [presiding] The subcommittee will be in order. We will take up where we left off and, again, our apologies for the interruption. Mr. Roche.
STATEMENT OF ARMANDO ROCHE, PRESIDENT, PROFESSIONAL BAIL AGENTS OF THE UNITED STATES
Mr. ROCHE. Mr. Chairman and members of the committee. Thank you for the opportunity to be here before you this morning. I, too, wish to have my written comments entered as part of the record, but I'm going to somewhat digress from the written comments that I submitted to you.
My name is Armando Roche and I am president of the Professional Bail Agents of the United States. I also serve on the board of directors of the Florida Surety Agents Association. I think we have to differentiate here today between bounty hunters and bail agents. I'm here representing the bail agents of this country and there are 14,000 of us.
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Bail agents are a highly-regulated industry in most States. In my own State of Florida, you have educational requirements that are needed in order to receive pre-licensing and also continuing educational requirements that we must meet after those licenses are issued.
I find as unconscionable the testimony that I have heard here today, as you do. There is no one in my industry that is going to condone the behavior of the individuals or atrocities that we have heard of here this morning. The difference here is that I found it so unconscionable 10 years ago that I attempted to do something about it.
As a result of many, many years of work, in 1996, we were able to find an individual in the Florida House of Representative and in the Florida Senate that sponsored a bill to address these very problems. My national association has taken the position that bounty hunters should be regulated or eliminated. I personally took that position, and the Florida Surety Agents took the same position in 1996, and that is that we wanted them eliminated.
Some of the problems that have occurred in this country occurred as a result of a school that was started in Florida in the 1980's. When Florida made it a third degree felony to be a bounty hunter in that State, the school closed up and moved to the State of Arizona. They continued to produce people that thought they could break people's doors down, put people in trunks of cars, and similarly outrageous behavior.
I'm here today to tell you I don't condone that. I didn't condone it 10 years ago; I don't condone it today. And in my personal opinion, I think you need to move in the direction of the elimination of the bounty hunter.
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What we did in Florida was give specific authority for making an arrest to law enforcement people, bail agents or temporary bail agents. By doing that, we put the responsibility directly on a bail agent. Now, Florida is one of the few States that has bail agents. Ninty-nine percent of these agents write for insurance companies. As a result liability attaches to the insurance company appointing the agent.
I would like to see you headed in the direction of abolishing bounty hunters in the United States. And I say that as a bail agent that has spent 27 years in this business, has made many, many arrests, has never had to break anyone's door down, has never had to abuse anyone, has never had to terrorize anyone to the point that I have seen our witnesses here this morning terrorized.
Apprehensions can be done, and they can be done properly, if the bail agent is educated, if educational requirements are continually adhered to, and if the States will do the regulation. But I think that the committee has to look at both of these entities and draw a clear distinction, bounty hunters are not bail agents.
And I recognize the fact that there are bail agents that hire the services of these individuals. I stand before you and tell you that in 27 years, I have not had to hire one. Personally, I always felt that they were hotdogs, but that is something that you may have to consider with some future legislation.
I thank you, and I appreciate your allowing me an opportunity to come before you. Thank you.
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[The prepared statement of Mr. Roche follows:]
PREPARED STATEMENT OF ARMANDO ROCHE, PRESIDENT, PROFESSIONAL BAIL AGENTS OF THE UNITED STATES
Mr. Chairman and Members of the Committee:
My name is Armando Roche; I reside in Tampa, Florida; have been in the bail profession for 27 years; and have recently been elected President of the Professional Bail Agents of the United States, a professional organization representing 14,000 bail agents nation wide.
PBUS was founded in 1981 by those of us who wanted to strengthen professionalism in our businesses and accomplish more in the services that we provide to our communities. We are a rapidly growing national organization and serve as the policy center for state, and local bail associations. We meet biannually, and operate a national headquarters in Washington, D. C.
Bail agents play a key role in the criminal justice system by securing the release of pre-trial detainees and guaranteeing their appearance in Court. These services are provided efficiently and at no cost to the tax-paying public.
Unlike bounty hunters, bail agents are highly regulated by Departments of Insurance, or other Boards, hold a license from those bodies, have had pre-licensing education (including periods of internship), testing, continuing education and certification programs.
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Over 45% of the bail agents in the United States are women; generally, small family-owned businesses (some having existed for several generations). Our membership is politically, racially and culturally diverse.
You must understand that most agency owners—to apprehend fugitives—use experienced professionals, many who have previous law enforcement backgrounds. Others, choose to handle recovery in-house.
An area that has had detrimental influences on the image of the profession is the fugitive recovery aspect. In recent years there has been an influx of inexperienced individuals desiring to be recovery agents. They may have gone through a private school, or no school, and most have not had any comprehensive training.
The problems created by bounty hunter abuses have produced four discernible responses.
First. The State of Florida has addressed the problem of bounty hunters by providing that no person can represent himself/herself to be a bail enforcement agent, bounty hunter, or other similar title; and that no person, other than a certified law enforcement officer, is authorized to apprehend, retain, or arrest a principal on a bond, unless that person is qualified, licensed, and appointed by the Department of Insurance or is a licensed bail bond agent by the state where the bond is written.
A violation of these provisions constitutes a felony of the third degree, and is punishable by fine, imprisonment for five years, or both fine and imprisonment.
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Second. PBUS has drafted a Model Act for adoption at the state level (see attached copy) which Act is being advocated by our members across the country. At the present time legislation based on our Model Act is pending or is under consideration in Alabama, Arizona, California, Washington, Idaho, Colorado, Missouri, Louisiana, Tennessee, Texas, New Hampshire and Kansas.
Please note that the Model Act provides for complete regulation of the bail enforcement recovery process together with appropriate penalties for violations.
Third. The University of Southern Mississippi has proposed a curriculum consisting of 84 hours of coursework over a period of two weeks. The course would be broken down into two phases; one academic, consisting of 44 hours of classroom work, and the remaining 40 hours would be the physical phase of the curriculum (weapons training, apprehension procedure, non-lethal apprehension techniques). This program would require a background investigation check from the Federal Bureau of Investigation, and a local law enforcement check, along with a psychological profile test for any individual that would receive certification, prior to their acceptance into the program. This is the same standard profile that is required of law enforcement officers and should be considered to be of no less of a need for a person that wants to be involved in fugitive recovery.
Fourth. Attorney Milton Hirsch, a criminal law specialist from Florida, and a member of the National Association of Criminal Defense Lawyers, has prepared an excellent study suggesting that a proper interpretation of the Uniform Criminal Extradition Act may constitute a profound limitation on the practice of bounty hunting.
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Mr. Hirsch points out that previously, bounty hunters simply came into a state, seized a fugitive and removed him from the state with no procedural safeguards. Now, under Mr. Hirsch's interpretation of the Uniform Act, an arrested fugitive is afforded certain basic procedural rights in the state in which he is captured, e.g. to be promptly presented before a court of law, to be informed of his right to counsel, and to challenge the legality of his arrest.
Under this interpretation of the Act, which has been adopted by 47 states, Federally protected rights would be observed.
PBUS has established a model set of required standards for fugitive recovery or bail enforcement that is supported and adhered to by all of its members. These standards regulating fugitive recovery will be lobbied in their respective state legislatures, and we believe that state legislatures are the appropriate forums for corrective legislation.
In short, the position of the professional bail agents is clear; regulate the bounty hunters at the state level or prohibit bounty hunters altogether.
PBUS shall continue in the forefront of establishing a professional and liability conscious business approach to the profession of commercial bail.
Mr. Chairman, I thank you and the Members of the committee for allowing me this opportunity to appear and be heard.
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59922f.eps
59922g.eps
59922h.eps
Mr. CANADY. Thank you, Mr. Roche. Mr. Drimmer.
STATEMENT OF JONATHAN DRIMMER, ATTORNEY, WASHINGTON, DC
Mr. DRIMMER. Thank you, Mr. Chairman, and thank you for inviting me to speak here today. And I must again reiterate, I am here solely in my capacity as a private citizen and my views do not represent the Department of Justice or the Federal Government in any respect.
Now, although they often have criminal records, bounty hunters enjoy greater authority than the police. They're unlicenced, unregulated, and generally free from any constitutional restraints. They're entitled to break into a defendant's home without a warrant, conduct searches, and temporarily imprison suspects without express authorization from the State. They can arrest a defendant using all reasonable and necessary force, and in most States they can transport defendants over State lines without abiding by any official process.
And I would argue that the broad, unchecked authorities that currently exist cause countless injuries to victims and defendants alike nationwide. Some of them you heard about earlier this morning.
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Now I just have a few points that I would like to make for the remainder of my testimony. The first is that bounty hunters do enjoy greater authority than the police. This is not something that really can be disputed. Unlike the police, bounty hunters do not have any Fourth or Fifth Amendment restrictions. These of course protect against government sanctioned abuses during the search and arrest process.
In addition, they can take defendants and transport them over State lines. There are references in the written record to the Uniform Criminal Extradition Act perhaps applying to bounty hunters and bondsmen. I think that Milton Hirsch has submitted a study that reflects that view. That view is not the law in many States. I think maybe only five or six locations actually abide by that view, and in the overwhelming majority of locations, bounty hunters can and do arrest people, and transport them over State lines back to the State of jurisdiction.
Now, the second point I'd like to make is that these rules—the Fourth Amendment, the Fifth Amendment, the Interstate Extradition Clause, the UCDA—these should apply to bounty hunters. The reason is really quite simple and I think it's one the bail industry would largely agree with: Bondsmen and the people who recover bail skippers are critical to the bail process. Without these actors, bail would be a virtual nullity, and they're engaging in a classic symbiotic relationship with the State. They facilitate the release of defendants before trial, saving the government a substantial sum of money associated with pre-trial detention and they recapture these defendants, and they guarantee their apprehension in court, again, at no cost to the State or taxpayers. At the same time, bondsmen and bounty hunters earn their living through the bail system. It's a classic symbiotic relationship and it needs to be recognized as such, but it currently isn't.
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At present, even ordinary debt collectors have less restrictions than do bounty hunters. Ordinary debt collectors, of course, are covered by the Federal Debt Collections Procedures Act.
Now, the third point I'd like to make is that there is minimal State oversight, and often minimal private oversight regarding bounty hunters. While there has been some talk about a movement in the States to regulate bounty hunters, since January 1, 1997, two new States have enacted licensing requirements for bounty hunters. Only two. So you have to wonder exactly how rapidly these changes are coming about.
At the same time, bondsmen can avoid liability for the same reasons we heard about earlier today. Bounty hunters often are viewed as independent contractors, and, therefore, the misconduct of the bounty hunter is not attributable to the bondsman. It enables the bondsman to avoid liability.
Now, the reason you can't sue bounty hunters, again, are reasons that we heard earlier: They typically don't have any assets. It's hard to find an attorney to sue a party that doesn't have significant assets, and even when a legal recovery is won it's hard to enforce it. Ask Pamela Read and ask Betty Caballero, referred to by Representative Hutchinson. She lost an unborn child at the hands of a reckless bounty hunter and she hasn't recovered a nickel for her pain.
Now this bill, I think, would protect innocent victims, and it does so intelligently, foregoing a comprehensive regulatory scheme in favor of simple market mechanisms, free market mechanisms. In economic terms, it cures a market failure by forcing bondsmen and bounty hunters to internalize the external costs they impose on society.
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The first provision of the Act is to make bounty hunters abide by the same types of civil rights laws that govern ordinary law enforcement officials. This is merely a recognition of the fact that they and bail bondsmen are quasi-judicial actors who are critical to the State and who engage in a symbiotic relationship with the state. And this is hardly a sweeping reform. It merely brings bondsmen and bounty hunters up to the level of other private entities who similarly are performing core law enforcement functions. Private prisons, for instance.
The second provision of the bill forces a bondsman to closely monitor the conduct of his bounty hunter. The bondsmen will be forced to make sure that their bounty hunters are trained professionals who have a knowledge of the law and are free from a criminal past. And it does this by creating an agency relationship. Under this relationship, certain acts of misconduct can be attributed to the bondsman. Now, I don't think this is going to be too onerous, and I would point to the three States that have this type of liability scheme, or roughly similar liability schemes between bail recovery folk and bondsmen. The three States are Florida, North Carolina, and South Carolina. In each of these States, they have licensed runners—the people who do the recoveries are often called runners—who can only work for one bondsman at a time.
In Florida, where Mr. Roche is from, the Department of Insurance says that there is ample access to bail. The numbers that I was given by the Department of Insurance are that since 1996, when Florida's law went into place, there has been an increase of 15 percent in the number of licensed bail agents. It's risen from 1,200 to roughly 1,400.
The word used by the South Carolina Department of Insurance regarding the number of individuals available to write bail was ''over saturation.'' They said, if anything, they're ''over-saturated'' with licensed bail agents.
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In North Carolina, the Department of Insurance says they are ''deluged by'' the number of people they have to write bail, which, again, is somewhere in the neighborhood of 1,000 persons.
What these States show, number one is that it is not terribly onerous for the bondsman to be assessed with liability in certain circumstances. And, two, criminal defendants have ample access to bail in these States.
The third provision of the bill requires notification of local law enforcement whenever a bounty hunter crosses State lines to make an arrest in accordance with the law of the local jurisdiction. This, of course, will help to prevent confusion with local law enforcement entities and, I think, again, it's not a terribly onerous provision for bounty hunters.
Now, again, as I stated at the outset, these views are mine and they are not those of the Federal Government. But I very much believe that the ''Citizen Protection Act'' will help to prevent some of the tragedies that we're heard about this morning. Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Drimmer follows:]
PREPARED STATEMENT OF JONATHAN DRIMMER, ATTORNEY, WASHINGTON, DC
Hon. CHARLES CANADY, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR CHAIRMAN CANADY: This letter represents my written testimony regarding H.R. 3168, the Citizen Protection Act of 1998. I also have included my 1995 article, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, as well as a summary of that article. In addition, I enclose an article I wrote that was published in the Legal Times in September 1997, entitled A Year of Bounty Hunter Misconduct, which discusses several recent examples of bounty hunter abuses and many of the reasons they pose a unique danger to the American public. This written testimony represents my opinions only as a private citizen, and not as a federal government employee, and these views cannot be construed in any respect to represent those of the Department of Justice or any federal agency, entity, or official.
By this letter, I express my full support for the Citizen Protection Act. However, before discussing the Bill and its provisions, it must be understood that many bondsmen and bounty hunters are responsible professionals who perform their crucial and dangerous public functions admirably, allowing for the effective operation of our constitutionally guaranteed system of bail. Yet there still remain recurring, frequent, and often tragic abuses at the hands of untrained and reckless bounty hunters that endanger the lives of American citizens nationwide. It is these abuses that must be curtailed, and these bounty hunters who must be controlled, and the duty falls on Congress to act to protect the American public.
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H.R. 3168 will help curtail the present abuses and control rogue bounty hunters. Having comprehensively studied the legal landscape regarding bounty hunters for several years, I believe the Citizen Protection Act provides effective solutions to three of the most significant problems presently connected to bounty hunters; and it does so without placing a significant onus on responsible bondsmen and bounty hunters. Each of these three problems is discussed in turn.
1. The most pressing danger the Bill confronts is caused by the fundamental uncertainty that bounty hunters, who act in capacities similar to the police, are trained professionals without criminal records who will refrain from abusing their broad legal powers and positions of public trust. That uncertainty is due in part to the lack of required oversight bondsmen must exercise in determining which bounty hunters to hire. At present, under modern agency law, bondsmen are able to employ bounty hunters on an independent contractor basis.(see footnote 2) In such a relationship, as a legal matter, any abuses the bounty hunter inflicts on the public cannot be imputed to the bondsman. Because bondsmen are insulated from legal liability, they have little incentive to conduct in depth investigations into the backgrounds of the bounty hunters they utilize.
The Bill recognizes that bondsmen should not be able to hide from liability by legal technicalities associated with a bounty hunter's independent contractor status. Instead, the Bill uses a market solution and economic incentives to force bondsmen to exercise greater responsibility in their hiring practices. It creates an agency relationship between bail bondsmen and the bounty hunters they hire, under which the bondsmen will be civilly liable for any acts of misconduct committed by his hired proxy. To minimize potential liability, and maintain the lowest insurance premiums possible, bondsmen will be compelled to investigate the background and training of their bounty hunters, and only will hire bounty hunters who possess the necessary knowledge and skill to undertake the important and dangerous functions of arresting persons on bail.
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While such a change will help ensure against reckless, untrained bounty hunters, it will not drastically alter either the abilities of criminal defendants to afford bail or the continued financial successes of bail bonding companies. That is made clear by examining the bail systems in Florida, North Carolina, and South Carolina, the three states with laws reflecting the type of liability scheme contemplated by H.R. 3168. See Fla. Stat. 648.37(c); N.C. Gen. Stat. §58–71–65; S.C. Code §38–53–120.(see footnote 3) In none of these states are criminal defendants denied access to bail in significantly greater numbers than their sister states. Nor is there a dearth of bail bonding companies; in contrast, the bail industry is highly competitive and thriving in each state. In North Carolina, there exist 1200 licensed bail agents, a number that continues to grow each year. In Florida, there are almost 1400, a figure that the Florida Department of Insurance reports has grown rapidly since 1996 when the state enacted its legislation.(see footnote 4) The South Carolina Department of Insurance also states that defendants have ample access to bail bonds. In fact, the Department of Insurance states that, if anything, South Carolina is ''oversaturated'' by the 300 persons licensed to issue bail, and it currently is issuing approximately new 10 licenses every month. As these states prove, the enactment of a joint liability scheme will not significantly impair the ability of defendants to make bail or diminish the profits available to bondsmen.
2. The second change contemplated by H.R. 3168 is to treat bondsmen and bounty hunters as state actors under 42 U.S.C. §1983, and thus force them to follow similar restrictions that govern public officials in performing search and arrest functions. Such a change is long overdue for these quasi-judicial actors, and needed to protect the rights of innocent victims and criminal defendants alike.
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It cannot seriously be disputed that bondsmen and bounty hunters are essential participants in the American pretrial criminal justice system; indeed, without them, bail would be a nullity. A substantial majority of arrested suspects facing bail post a surety bond,(see footnote 5) and as famed judge J. Skelly Wright once noted,
the professional bondsmen hold the keys to the jail in their pockets. They determine for whom they will act as surety—who in their judgment is a good risk. The bad risks, in the bondsmen's judgment, and the ones who are unable to pay the bondsmen's fees, remain in jail. The court . . . [is] relegated to the relatively unimportant chore of fixing the amount of bail.(see footnote 6)
While bondsmen are critical to defendants' securing pretrial release, bounty hunters are equally vital in ensuring that those defendants reappear for their trial dates.(see footnote 7) Thus, bondsmen and bounty hunters are integral in the two most significant aspects of our system of bail—release before trial and reappearance to stand trial.The symbiotic link between bondsmen, bounty hunters, and the government is equally obvious. All profit financially from their association. While bondsmen and bounty hunters earn their livings from the public bail system, the government saves significant sums of money associated with pretrial detention, and having to locate, arrest, and transport back to court itinerant defendants. In addition, frequently court clerks, the police, or government-employed attorneys recommend particular bondsmen to defendants,(see footnote 8) and bounty hunters often work closely with the police and other state officials, trading information and even assisting in the capture of particularly elusive suspects before the state's initial arrest. Based on their symbiotic relationship with the government, and the importance of bondsmen and bounty hunters to the pretrial process, the recognition of bondsmen and bounty hunters as state actors is both legally correct and a matter of common sense. See Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir. 1987) (finding bondsmen state actor based on symbiotic relationship with state).
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As state actors, bounty hunters would be prohibited from undertaking unreasonable searches or seizures, as the Fourth Amendment mandates, or coercing confessions, as the Fifth Amendment proscribes. Of course, as a factual matter, given that the role a bounty hunter is merely to arrest a defendant and transport him to court, and not as a police evidence gatherer, such requirements should not mar bounty hunters in their primary efforts. At the same time, the American public can be assured that the broad powers currently possessed by bounty hunters to enter private residences without a warrant and make arrests will not be misused to invade the privacy rights of innocent victims and bystanders, as well as defendants.
3. Finally, the Act recognizes the inherent interstate aspects associated with bounty hunting. While it does not prohibit bounty hunters from crossing state lines to arrest and return a fugitive to the court of jurisdiction, as bounty hunters often do, it does mandate that bounty hunters perform the simple, ministerial act of notifying the police in the locale where the arrest is to take place. As a practical matter, this will help to prevent potential confusion between arresting bounty hunters and local law enforcement authorities, guarantee that bounty hunters comply with any applicable state laws, and ensure that innocent victims are not transported from their home state to foreign jurisdictions.
The Citizen Protection Act's three primary provisions will, in my view, help to cure many of the abuses currently caused by untrained and dangerous bounty hunters without impairing the nation's bail system. Nor do these provisions, which are moderate in nature, intrude in any regard on the rights of individual states. The Bill does not hinder states in the operations of their state bail systems, but the provisions are limited to areas in which only Congress can act, areas involving federal civil and constitutional rights and interstate activities. States remain free to enact supplementary legislation deemed appropriate to protect their respective citizens, such as licensing and training requirements for bounty hunters.(see footnote 9)
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I therefore express my full and unmitigated support for H.R. 3168, and urge its rapid passage into law.
SUMMARY
WHEN MAN HUNTS MAN: THE RIGHTS AND DUTIES OF BOUNTY HUNTERSIN THE AMERICAN CRIMINAL JUSTICE SYSTEM
When Man Hunts Man is a comprehensive attempt to study the history and legal rights of bounty hunters in the United States. It examines the frequent abuses bounty hunters currently inflict on the American public, and recommends that bounty hunters and the bail bondsmen who hire them be considered state actors based on the vital role both play in the American criminal justice system.
Beginning in Medieval England, bounty hunters, and the bondsmen who hire them, have served as state proxies in the pretrial criminal process. After a felony arrest, most defendants, to be released from prison until trial, hire a bondsman to post a bail bond with the court. The state then delivers legal custody of the defendant to the bondsman, whose bond is refunded only if the defendant returns to court for trial. When the state gives the bondsman custody of a defendant, it recognizes comprehensive powers to search for and arrest that defendant. To guarantee that defendants properly appear in court, bondsmen often employ professional bounty hunters who share the bondsmen's sweeping powers.
These rights have largely remained unchanged since the United States adopted England's common law rules regarding defendants on bail following the Revolution. Those common law rules, in turn, came to resemble their present state in England in the Thirteenth Century when sheriffs would release defendants into the custody of sureties.
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As stated by the Supreme Court in Taylor v. Taintor, 83 U.S. 366 (1873), bondsmen and bounty hunters have the legal right to arrest a defendant before or after a trial date, to break into the defendants home to make such an arrest, and to imprison a defendant until custody can be transferred back to the state. In fact, bounty hunters generally can break into the home of a third party if the defendant is inside, and are entitled to use all reasonable force to subdue a defendant—including deadly force where necessary, similar to the police.
Courts historically have construed these rights to derive not from any state or judicial process, but to be implicit in the very nature of bail. Thus, whenever bail is posted for a defendant, the law presumes the existence of a contract under which the defendant is deemed to consent to being arrested by the bondsman or his agent at any time, in any place, for any reason, using all necessary force. This presumption exists regardless of whether there is an actual bail contract or the defendant is aware of the rights he is deemed to forfeit.
Because the law considers the rights of bounty hunters to emanate from private contract, courts have traditionally refused to recognize bounty hunters or bondsman as state actors. Accordingly, bounty hunters are not subject to the constitutional restrictions of police officers who perform the very same search and arrest functions. These restrictions include the Fourth Amendment's warrant, search and seizure, and knock and announce requirements, and the Fifth Amendment's proscription on improper interrogations. They also include the Constitution's Interstate Extradition Clause, which thus allows bounty hunters simply to seize a defendant and transport him over state lines without notifying the police or any public official of the arrest.
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At the same time, although bounty hunters essentially are enforcing a debt owed by the defendant to the bondsman, bounty hunters enjoy substantially greater authorities than ordinary debt collectors. While such debt collectors are private citizens and not subject to the constitutional restrictions of police officers, the Federal Debt Collection Procedures Act (''FDCPA''), 15 U.S.C. §1692–1692o, strictly and comprehensively regulates the types of contacts debt collectors may initiate with debtors. Among its provisions, the FDCPA prohibits collectors from making threats, physical assaults, and oral or written misrepresentations. The Act also requires that debt collectors offer a ''mini-Miranda'' statement when confronting a debtor, which includes informing the debtor that the collector is seeking to enforce a debt and that any statements by the debtor can be used against him for that purpose. See 15 U.S.C. §1692(e)(11). Moreover, regardless of the contractual terms between a debtor and lender, debt collectors who search debtors' homes without consent, or attempt to restrain debtors physically, can be civilly and criminally liable. In stark contrast, bounty hunters have the authority to break into a defendant's home at any time, arrest the defendant, lawfully search for and seize any evidence within the defendant's home, and attempt to elicit from the defendant incriminating statements for use at trial without providing any Miranda warnings.
While bounty hunters enjoy substantially broader rights than either the police or private debt collectors, they rarely are subjected to any state regulations, such as licensing requirements, training requirements, and background checks. That lack of governmental oversight has resulted in common, nationwide abuse at the hands of bounty hunters. Such abuses include bounty hunters' violent and sometimes deadly infliction of excessive force against defendants, bystanders, and innocent victims alike; bounty hunters' terrorizing startled bystanders and innocent victims by breaking into their homes and drawing their weapons; bounty hunters' arresting innocent victims and transporting them over state lines; and bounty hunters' causing significant and unnecessary property damage.
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In seeking a solution to these abuses, outlawing bounty hunting or significantly curtailing their rights would be imprudent. Bounty hunters perform a useful social function in arresting frequently dangerous fugitives at no cost to the state or taxpayers. Based on bounty hunters' focused expertise and economic incentives in seeking to recapture bail jumpers, the return rate for defendants released on private bail is significantly higher than for defendants released from jail through other methods.
In addition, bounty hunters and bondsmen are crucial to the bail process; indeed, without them, the bail system would be a nullity. Bondsmen largely determine whether a defendant even will be released on bail before trial, and it frequently rests solely with bounty hunters to guarantee that these defendants return to court for trial. In light of mounting and competing costs associated with law enforcement and pretrial detention, in conjunction with prison overcrowding and a high national crime rate, bondsmen and bounty hunters also save the public significant sums of money.
The most reasonable alternative to eliminating the powers of bounty hunters while nonetheless protecting the American public from the current and routine abuses and allowing bounty hunters and bondsman to continue their vital public services is to recognize bounty hunters as state actors. Like private prisons, which also play an important role in the criminal justice process, bounty hunters should be subjected to the same restrictions as other public officials in carrying out their important functions. These would include the restrictions associated with the Fourth and Fifth Amendments, as well as the Interstate Extradition Clause. Such restrictions not only would create a modicum of protections to the American citizenry, but would allow for the abiding benefits bounty hunters and bondsmen currently provide.
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59922a.eps
59922b.eps
59922c.eps
59922d.eps
59922e.eps
Mr. CANADY. Thank you, Mr. Drimmer. Mr. Slaton.
STATEMENT OF FRANK SLATON, BOUNTY HUNTER, NEWPORT NEWS, VA
Mr. SLATON. Thank you, members of the committee, ladies and gentlemen, for inviting me here today to speak to you.
I am a bounty hunter, and I'm the guy that works on the street every day and I do this for a variety of reasons: One, because my services are required. And, because I do it responsibly.
When doing recovery work, I believe that there should always be a common sense approach. And one of the things about the majority of the people out there doing this type of work, they do it because they want to represent something that they probably cannot normally become, whether it be law enforcement, private security, the things like that.
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In our area alone, there are probably about 45 bail bondsmen operating within about 4 or 5 jurisdictions. And each one of these bail bondsmen is different in their own way; they have a different way of practicing their profession. Many of them write bonds, but they don't do their own recoveries, because they don't have the experience to do the recoveries. These people don't have the experience to do the recoveries because they don't have adequate training, they don't have any type of background, but yet they qualified to be a bail bondsman.
To qualify to be a bail bondsman is actually pretty simple, at least from a surety aspect of it, and if you have the type of collateral and things that you need, you can get a corporate surety to sign you up to write bail bonds. These people write a lot of different types of bonds, and they deal with a lot of different types of people.
And we have to look at the people that are out there on the street who are not going to court and who are not fulfilling their responsibilities to the judicial system. And these are the people who are out there and they're running to different States to avoid arrest. And it requires individuals like myself to track, locate and apprehend them.
When we are out here doing our type of job, the gentleman right here indicated that we should probably eliminate bounty hunters, but eliminating bounty hunters is not going to solve the problem in the fact that there's misjudgments and errors in judgment, and things like that when people approach it. We have broad powers, and these broad powers have to be used responsibly. And, with anything out there, there has to be a limit to the use of authority.
You can approach a house—I talked to these people here during the break, and in the situation out in California in the hotel room, I think one phone call to the room would've prevented that entire situation from ever happening, and it's a common sense approach.
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When you are out there actively doing recovery work, you have to take a common sense approach. It requires planning and preparation; it requires communication management skills; it requires threat assessment management; it requires a certain amount of ethics; it requires a good relationship with police and law enforcement authorities in the area that you're operating.
Going back to the common sense approach of recovery, work, notifying local law enforcement that you're operating within their jurisdiction is exactly that common sense type of approach. From an advisory aspect to also getting assistance from those individuals, depending on local policies.
In our area, we have two districts for the police department in one of the cities that I operate in. And in one district down where it is a high crime area, there is a policy for assisting recovery people that is different from the affluent area of town. To where, in one area, they will be more than happy to assist you, but in the other area, they tell you that you are on your own.
And I think in a lot of jurisdictions, police officers, such as in the incident in one of the States where the officer did not really know how to deal with the bounty hunters, is because the police departments are not addressing that situation as well.
They do not particularly understand the authority that we have. They know that authority; they know that we can do these things, but like I said earlier, there are limits in exercising that authority and every bounty hunter needs to be responsible for their own actions.
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I think this agenda here is very significant in that it focuses on a situation that is pretty much out of control. But I think that by eliminating the bounty hunter, you're defeating a lot of different purposes.
And, also, requiring bounty hunters to have a $1 million insurance policy is also something that I find very interesting, and a very interesting perspective because as a bounty hunter, I have gone out and looked for insurance for whether it be a frivolous lawsuit or an error in judgment on my part. And to get a liability insurance policy is not much of a problem but when I tell the individual insurance agent what I want the liability insurance policy for: Thank you very much, sir, we can't help you.
So, there are a lot of different ways to legitimatize the profession of bounty hunter, and that's what we need to do. We need to require mandated training; State's need to take a more aggressive approach in regulating the individuals who do the work that I do. This profession right now is open to anybody, including convicted criminals, felons, people from all walks of life.
And we have to address the situation not by elimination, and establishing liability but by mandating training, mandating background investigations, and basically legitimizing the profession of the fugitive recovery agent. Thank you.
[The prepared statement of Mr. Slaton follows:]
PREPARED STATEMENT OF FRANK SLATON, BOUNTY HUNTER, NEWPORT NEWS, VA
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Good Morning. I am Frank Slaton, a Private Investigator currently employed as the Director of the Investigative Services Division, American International Security Specialists, Inc. I have been registered or licensed as a Private Investigator by the Commonwealth of Virginia and the State of Maryland since 1989. In addition, I am a licensed Bail Bondsman in the Commonwealth of Virginia. This licensure is through the Virginia Department of Insurance. Lastly, I am also a Professional Bail Fugitive Recovery Agent, commonly known as a ''Bounty Hunter,'' for which there is no registration or licensing requirement in the Commonwealth of Virginia.
I appear before the Committee to relate experiences that can only be gained by being a professional in the business of bounty hunting and related activities. Because I have actively performed the duties of a recovery agent for many years, I have had the opportunity, on a daily basis, to communicate with and observe bail bondsmen and recovery agents operating throughout the United States. My career in bail bonds began as a ''Bounty Hunter'' shortly after being discharged from active duty in the United States Army. At that time, my record of experience and abilities made it easy to secure my first recovery contract from a local bail bondsman. I was elated that I had the potential to earn more money on a single recovery than I would earn in a whole week or month working a full time ''regular'' job. A recovery operation paid a minimum of $250.00 and up to $5000.00 depending on the original amount of the bond. For me, as with any other ''private citizen'' able to secure recovery contracts, this represented a very good income potential.
At the same time, it did not take long for me to recognize the fact that tracking, locating and apprehending a bail fugitive is a challenging endeavor and most certainly dangerous. By definition, the person being sought does not want to be found as he or she will certainly be placed in custody and their bond forfeited. Accordingly, these people are oftentimes dangerous and definitely unpredictable. One mistake, miscalculation or error in judgement can result in personal injury and even worse the loss of human life.
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As I became increasingly more involved in recovery work, I noticed that anyone could get a recovery contract as easily as I had. For example, I found that it was often the case that a single bondsman would hire others, like myself, to locate the same fugitive. I quickly learned that this was the way business was done because the bail bondsman's primary and oftentimes only concern was bringing the fugitive before the court before the bond was scheduled to be forfeited. The bondsman's logic: the more people searching, the better the odds were for quickly apprehending the fugitive. Why not? Bounty hunters work on a contingency basis and the bail bondsman does not have to share in the liability for their actions. I found this practice very disturbing and also extremely dangerous, especially, as was often the case, when other bounty hunters were operating in the same area, at the same time, looking for the same fugitive. It was like a race to the end, a competition to see who will apprehend the fugitive and collect the reward versus who will not apprehend the fugitive and not collect the reward.
As I continued to work in the field, I learned that other bondsmen practiced the same philosophy. It became quite apparent this was common practice. The reasons that this dangerous, cowboy mentality has prevailed are many. First and foremost, the bail bondsman can appoint anyone whom he chooses as his agent for the purposes of apprehending a fugitive. He contracts with as many bounty hunters as he can and does so to increase the odds of locating a fugitive. Driving this process is the fact that, at least in Virginia, the bondsman does not have to maintain a liability insurance policy for himself as well as those individuals not considered employees, but are rather independent contractors. So, the bondsman takes care to always refer to the bounty hunter as an ''independent contractor'' even though neither party may know what the term means and whether it applies to their employment relationship. Not a bad deal considering the recovery agent has everything to loose, while the bail bondsman's only concern is the pending forfeiture he must pay to the court.
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It is when the bounty hunter(s), spurred on by the need to apprehend a fugitive to be paid, implement an overzealous approach to win the race, that negligent and wrongful acts and abuses occur. It is true that the majority of bail bond sureties demand professionalism and experience from their recovery agents. The profession, for the most part, only wants to be associated with recovery agents who are reliable and conscious of the limitations upon their authority. This is only good business sense. On the other hand, there are bail bond sureties who have a gambler's mentality, playing the numbers game, by executing high risk bonds, while relying on the bounty hunter to do his dirty work. These individuals are only concerned with protecting their financial interests and or potential financial losses, and do so by exploiting young, eager and inexperienced bounty hunters wanting to get their foot in the door by accepting assignments for less than the standard ten percent fee. This type of bondsman is easily recognized by the professional recovery agent, however, to the young bounty hunter the bondman is affording him an opportunity. At the same time, the latitude afforded the bondsmen by current federal and state statutes allows him to take this type of unsound business approach creating a situation ripe for abuse.
There are two types of bounty hunters. The first types of bounty hunters are the many professional recovery agents involved in the daily operations of tracking, locating and apprehending bail fugitives. They are knowledgeable in the law and of statutes governing our profession. They understand there is more to the job than merely the authority we possess; there are also limits when exercising that authority. These professionals know that they are responsible for their own actions and, should they be charged criminally or civilly, that they are on their own because there is no insurance coverage available to them. Therefore, they understand that they must perform their duties with the utmost amount of professionalism and integrity and do so to protect themselves, innocent bystanders, and the individual they are taking into custody. But, importantly, they are not required to carry any liability insurance and even the most professional of recovery agents do not.
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The second type of bounty hunter is the first time or part time bounty hunter, the individual who bases all of his experience on brawn, ego and street knowledge. He is the individual who is familiar with the authority we possess, but does not understand there are limits when exercising that authority. These types of bounty hunters are the individuals without any formal training, little or no experience and are vulnerable to exploitation because of their obvious lack of knowledge of the bail bond business. It is when the bondsman persists in utilizing the services of these types of bounty hunters that the likelihood of something going wrong increases. Because bondsman do not have to concern themselves with civil and criminal liability and are not required to maintain liability insurance, they are less concerned and indiscriminate when appointing an individual to undertake the dangerous task of apprehending a fugitive. Therefore, recovery agents should be considered an agent of a bail bond surety for the purposes of liability regardless if they are an independent contractor or an employee. However, every man or woman considering a chance recovery or even a career as a recovery agent should realize that they are embarking on a mission that could easily develop into a life threatening situation and that they are responsible for their own actions. If such an incident were to develop one will most certainly only have their training, experience, instinct and basic common sense to rely on. However, that in itself and alone cannot be relied upon to eliminate abuses and errors in judgement. The fact that this is an unregulated function of our industry without any mandated training, registration nor any background screening requirements, open to anyone, including convicted felons is equally as important as subjecting bail bond sureties and bounty hunters to civil and criminal liability for wrongful and negligent acts. Essentially, at the present time, anyone regardless of their background, experience and training can be appointed by a bail bondsman to arrest a defendant on their behalf, a fact that opens the door for abuses. Another contributing factor is that the bondsman himself does not possess the experience and training necessary to apprehend a fugitive and either does not understand the dangers associated with recovery operations or simply does not care because he does not share in the liability.
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As in any profession there is a common sense approach that we must all maintain in order to be effective in the performance of our duties. For example, notifying local law enforcement of our presence in their jurisdiction is part of such a common sense approach. A standard policy maintained by my company is to always notify the watch commander of the local police department that we are operating within their jurisdiction whether we are operating locally or in another state. I have found that notifying local law enforcement agencies can be quite helpful from an advisory aspect to providing assistance depending on local policies. At a minimum, the bounty hunter has advised local authorities of his presence, but most importantly, patrol officers working in the area in which the bounty hunter is searching for a fugitive can be made aware of his activities.
I cite a tragic and unfortunate incident on September 24, 1997 when Corporal Anderson Gordon III, an eight year veteran of the Montgomery, Alabama Police Department, was shot and killed while approaching a traffic accident. The accident was the result of a pursuit involving a bail fugitive and a bondsman. After the collision, the fugitive opened fire on the bondsman, who fled the scene unharmed. As Corporal Gordon arrived on the scene unaware of the situation, he was shot while still seated behind the wheel of his patrol car with his foot on the brake. Had Corporal Anderson been informed, he would have known that the bondsman was searching for a dangerous fugitive in the area he patrols. With such information, hopefully, this sad incident and future ones like it, could have been prevented.
As we are all aware, there have been numerous other highly publicized incidents involving ''Bounty Hunters'' as well as supposed ''Bounty Hunters'' creating nationwide concern and discussion relating to wrongful and negligent acts committed by a small fraction of individuals within our industry. Taking into consideration the large number of arrests made each year by an increasing number of recovery agents, the cited incidents, although unfortunate, as well as preventable, do not appear to be as widespread nor as flagrant as one may be inclined to believe. Nonetheless, even one incident of mistaken identity, use of excessive force, false imprisonment, or, even worse, the loss of an innocent life, is reason enough for concern.
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Therefore, we should not simply limit ourselves to civil and criminal liability issues, but also focus on remedies to prevent negligent and wrongful acts from occurring in the first place. This can be accomplished by mandating accredited training programs and implementing licensing requirements to include requiring recovery agents to undergo a background investigation. This single requirement alone would eliminate convicted felons from our profession, provide law enforcement the ability to verify an individuals credentials, and provide the bail bondsman qualified and properly screened recovery agents to appoint as his agent while protecting himself from the legal liability associated with negligent hiring.
Currently, a number of states have existing laws mandating training and licensing for recovery agents. In addition, there are numerous private organizations such as ours, working diligently to make adequate training available to those men and women considering a career as a recovery agent as well as those currently operating as recovery agents. I commend all of my colleagues as well as all of the professional bail bond organizations throughout the United States for their commitment in establishing industry standards, rules of conduct and recognizing the fact that recovery operations demand trained and knowledgeable recovery agents. However, because these training programs are not mandatory and because many bondsmen do not care about an individual's prior training and experience, many do not take advantage of their availability.
The Bail Bondsman provides a vital service to the criminal justice system and the citizens they serve, primarily to alleviate the burden of pre-trial confinement on the arresting authority as well as the defendant, who is presumed innocent until proven guilty; while holding the bail bondsman, a financially interested party accountable to ensure the defendant's appearance in court. It is when the defendant ''Fails to Appear'' that the problems begin and it starts with the bail bondsman because he is the individual initiating the recovery process by contracting the services of a ''Bounty Hunter''.
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Being a professional recovery agent has been very challenging and rewarding. There is no greater satisfaction than successfully tracking, locating and apprehending a fugitive. The successful and safe accomplishment of a recovery operation depends on proper planning, knowing what you are doing and always ensuring your safety as well as the safety of others. However, there are many bondsmen and bounty hunters who do not understand these basic principles. It is the result of their actions that innocent individuals have been subjected to a wide variety of tortuous acts.
Much has been accomplished, much remains to be done.
Mr. CANADY. Thank you, Mr. Slaton. Commissioner Kerlikowske.
STATEMENT OF R. GIL KERLIKOWSKE, POLICE COMMISSIONER, BUFFALO NY
Mr. KERLIKOWSKE. Thank you, Mr. Chairman. It's a pleasure to be with you here this morning. Thank you for inviting me to appear before the House Judiciary, Subcommittee on the Constitution to discuss H.R. 3168, Citizen Protection Act of 1998.
As police commissioner for the City of Buffalo, New York, and the current president of the Police Executive Research Forum, I understand the position bounty hunters hold in the criminal justice system and the potential danger that they pose.
I commend the committee for recognizing the need for discussion on the bounty hunters powers and the lack of accountability of his or her actions. H.R. 3168 places reasonable conditions on bounty hunters' activities without incapacitating the bail bond industry.
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The 1872 U.S. Supreme Court case, Taylor v. Taintor, has given bounty hunters a wide range of legally sanctioned rights that are not available to law enforcement officials, including entering a suspect's residence without a search warrant and not having to comply with a ''knock and announce'' rule.
Unfortunately, many of these bounty hunters are not trained and as recent media reports suggest, they pose a significant danger to innocent citizens and law enforcement agents. A recent incidence in Buffalo illustrates the dangers associated with irresponsible bounty hunting and the damage it can inflict on local law enforcement efforts.
On Wednesday, February 25, 1998, our officers answered a call about an individual who was wanted in Maryland and was riding on a city bus. Further, that he was possibly armed.
The call came through a cell phone and was from a bounty hunter and his assistants who were following the bus. Our officers met the bus and the wanted person fled off the bus on foot, and our officer chased him across the expressway. Tragically, the officer was struck and killed by a car.
The wanted individual was eventually arrested, however, in researching the Maryland warrant, it was determined that extradition applied on to surrounding States. In other works, we would not have arrested this individual at all.
Section 2(a) of H.R. 3168 addresses my greatest concern with bounty hunters failure to notify local law enforcement of their presence and plan. I strongly support this section because it requires bail enforcement agents to notify State authorities of their presence before commencing activities, and to share with local law enforcement any pertinent information. This is extremely important because it will inform local officers of the bounty hunter's presence and allow police the time to intervene in any potentially dangerous encounter. The officers in Buffalo and officers across the Nation deserve no less; citizens should expect no less.
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Several States have introduced and passed legislation that requires bounty hunters to notify local authorities of their activities in the State. New York State Senator Dale Volcker has introduced a bill that requires bail enforcement agents to now only notify local enforcement of their activity, but complete forms stating their name, permanent address, local address, and motor vehicle registration. Local officials are allowed to require additional information if they feel it is necessary, and to accompany a bail enforcement agent if they are entering an occupied structure to search for a suspect. A copy of this section was attached to my written testimony.
I believe that section 2(b) of the ''Citizen Protection Act'' can be bolstered even further. Notification of local and State authorities should include requiring bounty hunters to present themselves personally to the law enforcement official, to give written records of all personal information associated with the bail contract. For instance, a picture identification and the original bail contract copy could also be presented. This information can help the police identify jurisdictional problems and ensure that the bounty hunters will not endanger officers or ongoing investigations. Notification can even help bounty hunters as the local police may already know the whereabouts of a bail offender.
In the past, PERF members and I have opposed expanding the Federal role in traditionally local and State law enforcement issues, however I feel this is a sensible approach to a significant interstate problem that affect citizens and law enforcement officials nationwide. In a sense, this bill will strengthen State laws by forcing compliance by out-of-state bounty hunters.
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I strongly encourage the committee to support H.R. 3168, and I look forward to answering any questions. And I thank you for this opportunity to express law enforcement's view.
[The prepared statement of Mr. Kerlikowske follows:]
PREPARED STATEMENT OF R. GIL KERLIKOWSKE, POLICE COMMISSIONER, BUFFALO, NY
Thank you for inviting me to appear before the House Judiciary Subcommittee on the Constitution to discuss H.R. 3168, the Citizen Protection Act of 1998. As Police Commissioner for the city of Buffalo, N.Y., and president of the Police Executive Research Forum (PERF), I recognize the unique position bounty hunters hold in our criminal justice system and the potential danger they pose. I commend the committee for recognizing the need for discussion on the bounty hunter's power and lack of adequate accountability for his or her actions.
H.R. 3198 places reasonable conditions on bounty hunters' activities without incapacitating the bail bond industry. The 1872 U.S. Supreme Court case Taylor v Taintor has given bounty hunters a wide range of legally sanctioned rights that are not available to law enforcement officials, including entering a suspect's residence without a search warrant and not having to comply with the ''knock and announce'' rule. Unfortunately, many of these bounty hunters are not trained and, as recent media reports suggest, pose a significant danger to innocent citizens and law enforcement agents.
A recent incident in Buffalo illustrates the dangers associated with irresponsible bounty hunting and the damage it can inflict on local law enforcement efforts. On Wednesday, February 25, 1998, our officers answered a call about an individual who was wanted in Maryland and was riding on a city bus, further, that he was possibly armed. The call came through a cell phone and was from a bounty hunter and his assistants who were following the bus.
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The officers met the bus and the wanted person fled on foot, our officer chased him across the expressway. Tragically, the officer was struck and killed by a car. The wanted individual was eventually arrested, however in researching the Maryland warrant, it was determined that extradition applied only to surrounding states. In other words, we would not have arrested the suspect.
Section 2 (a) of H.R. 3168 addresses my greatest concern with bounty hunters' failure to notify local law enforcement of their presence and plan. I strongly support this section because it requires bail enforcement agents to notify state authorities of their presence before commencing activities and to share with local law enforcement any pertinent information about the bounty or bounty hunter. This is extremely important because it will inform local officers of the bounty hunters' presence and allow police the time to intervene in any potentially dangerous encounters. The officers in Buffalo and across the nation deserve no less. Citizens should expect no less.
Several states have introduced and passed legislation that requires bounty hunters to notify local authorities of their activities in the state. New York State Senator Dale Volker introduced a bill that requires bail enforcement agents to not only notify local law enforcement of their activities, but complete forms stating their name, permanent address, local address and motor vehicle registration. Local officials are allowed to require additional information if they feel it is necessary, and to accompany a bail enforcement agent if they are entering an occupied structure to search for a suspect. A copy of this section is attached to my written testimony.
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I believe that Section 2(b) of the Citizen Protection Act can be bolstered even further. Notification of local and state authorities should include requiring bounty hunters to present themselves personally to law enforcement officials and give written records of all personal information associated with the bail contract. A picture ID and the original bail contract copy should also be presented. This information can help police identify jurisdictional problems and ensure that the bounty hunters will not endanger officers or ongoing investigations. Notification can even help bounty hunters, as local police may already know the whereabouts of a bail offender.
In the past, PERF members and I have opposed expanding the federal role in traditionally local and state law enforcement issues. However, I feel this is a sensible approach to a significant interstate problem that affects citizens and law enforcement officials nationwide. In a sense, this bill will strengthen state laws by forcing compliance by out-of-state bounty hunters.
I strongly encourage the Committee to support H.R. 3168 and look forward to answering any questions. Thank you for this opportunity to express law enforcement's views on H.R. 3198.
ATTACHMENT TO PREPARED STATEMENT
S 74–A. NOTIFICATION. PRIOR TO TAKING OR ATTEMPTING TO TAKE INTO CUSTODY A PERSON, A BAIL ENFORCEMENT AGENT SHALL NOTIFY A LOCAL LAW ENFORCEMENT AGENCY HAVING JURISDICTION OVER THE AREA IN WHICH THE PERSON IS BELIEVED TO BE LOCATED OF SUCH BAIL ENFORCEMENT AGENT'S INTENTIONS. THE NOTIFICATION SHALL BE PROVIDED ON A FORM PRESCRIBED BY THE LOCAL LAW ENFORCEMENT AGENCY. NOTWITHSTANDING, THE FORM SHALL INCLUDE INFORMATION INCLUDING BUT NOT LIMITED TO NAME, ADDRESS, LOCAL ADDRESS AND MOTOR VEHICLE REGISTRATION OF SAID AGENT. THE LOCAL LAW ENFORCEMENT AGENCY IN PRESCRIBING SUCH FORM MAY CONSULT WITH THE DIVISION OF CRIMINAL JUSTICE SERVICES. A REPRESENTATIVE OF A LOCAL LAW ENFORCEMENT AGENCY MAY ACCOMPANY A BAIL ENFORCEMENT AGENCY WHEN THE BAIL ENFORCEMENT AGENCY ENTERS WHAT IS BELIEVED TO BE AN OCCUPIED STRUCTURE TO SEARCH FOR OR TO APPREHEND A PERSON.
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Mr. CANADY. Thank you very much, Commissioner. Mr. Scott is recognized.
Mr. SCOTT. Thank you, Mr. Chairman. I think the testimony we've heard focuses on the fact that a lot of innocent people need protection; that protections aren't designed to help the guilty, they're designed to help the innocent. It's something that we lose sight of sometimes when we legislate. And so I think the committee is inclined to do something and I want to thank Mr. Drimmer particularly for his efforts in his spare time, when he's not on government time, in actually going through the words because it's the words that we want to make sure we're doing something that makes sense and the words mean what we think they mean.
The first part of it is what the significance the color of State law will actually mean. First, if you're acting under the color of a State law, would that involve any liability on the part of the State?
Mr. DRIMMER. I don't believe that it would. I think that the State would not incur liability. I think the reasons are largely those that already are seen to exist for actions taken by, for instance, police officers whose actions can't be attributed to the State unless there is a violation of the dictates of Monell v. New York Social Services, and those do tend to be fairly rare. There needs to be an act or ratification by an official decision maker, and it's very difficult to overcome that hurdle at present, and I think that would very much apply in this context as well.
Mr. SCOTT. What is the significance of color of State law?
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Mr. DRIMMER. The significance of color of State law, as I read the bill, would involve the restrictions that currently apply to Federal actors, to State actors, whether they're actually governmental employees or private entities who are recognized as agents of the State under a number of tests that have been set forth. These rules would apply largely to the same degree to bounty hunters as they do to these State actors, and they would include, I believe the Fourth Amendment, the Fifth Amendment, and Interstate Extradition Clause, just to name three.
Mr. SCOTT. Does anyone on the panel think that the State would incur any liability with that language? Mr. Watson?
Mr. WATSON. I certainly do, sir. Using Monell as a guide, if you're going to have someone declared a State actor, you're going to have to have a governmental entity as their sponsor. If a bounty hunter is determined to be a State actor, who is his governmental sponsor? Logically, it could only be the court that issued the warrant that the State-actor bounty hunter was serving at the time he committed an offense against an innocent third party.
Now, what policy does the court that issued the warrant, or the county in which that court sits, what policy do they have vis-a-vis bounty hunters and their activities? The answer is, they don't have any policy. There are other U.S. Supreme Court cases that have held quite clearly that a total absence of policy with a knowledge on part of the government sponsor that policy should have been in place, can impose liability on the sovereign.
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Mr. SCOTT. Let me get back to Mr. Drimmer, and determine whether or not the fact that you have to check in with the local law enforcement officer creates that symbiotic relationship that might involve the State.
Mr. DRIMMER. I believe the symbiotic relationship already exists, and I don't think that would create any more or less symbiosis. I think there are several States now that already have that requirement and courts certainly haven't looked to those to expand State action requirements.
I think, perhaps, the best way to answer your question, Mr. Scott, bounty hunters have been found to be State actors in a number of cases over the years, but not the majority of cases by any stretch of the imagination. But there have been instances where they have been deemed to be State actors, like the Fourth Circuit—which I believe was mentioned at the outset. Also instances where they act in conjunction with the law enforcement, for instance, where a police officer shows up with them and helps them conduct a search. And in those cases, there have not been attribution by the court of misconduct directly to the State. In those cases, there haven't been recoveries against the State entities. So I would say, from a practical perspective, if you want to look at those cases as examples, liability probably would be excluded against the State.
Mr. SCOTT. If you left that language out and just left in the strict liability agency relationship, what would be lost?
Mr. DRIMMER. The only thing that would be lost, as it presently stands, I believe the language says, and you're talking about the final provision, I believe, the notification of State law or are you talking the color of State law?
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Mr. SCOTT. The color of State law.
Mr. DRIMMER. If you left that out, the only thing that would be lost is that at that point, the Fourth and Fifth Amendments wouldn't be deemed to apply, nor would the Extradition Clause or the Uniform Criminal Extradition Act be deemed to apply either. That's essentially what you would lose, is the color of State law, you would lose the Federal civil rights provisions that would apply.
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman has three additional minutes.
Ms. HAGIN. Could I just make one quick comment?
Mr. CANADY. It's the gentleman's time.
Ms. HAGIN. Okay.
Mr. SCOTT. Thank you, Mr. Chairman.
Ms. HAGIN. Thank you.
Mr. SCOTT. My time has been extended a couple of minutes.
Ms. HAGIN. Thank you very much. Mr. Scott, I addressed this somewhat in my written statement, on page 7, and I think my view differs very much from Mr. Watson's. Unlike police departments, these companies are not State entities. State officials, municipalities, would not have taken any affirmative responsibility over bounty hunting, and so the nexus to them, I think very clearly under Monell and Deshanney, it is very clear, that it wouldn't reach them. The nexus would not be there. The only ones who would assume a responsibility of the bounty hunters might be their employers. And that, I think, is very clearly what the legislation is trying to get to. I think under current law, that liability would not stretch back to the municipalities at all.
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Mr. SCOTT. Okay, the definition in the bill of bounty hunter says, ''a person, other than a public official engaging in official duties, who seeks, for compensation or in order to receive a reward, to obtain or exercise custody over another person for purposes of criminal judicial proceeds.'' Does that include someone without any relationship to the actual surety? If someone gets the idea that someone is a fugitive, violating their bond, and decides on their own to go out and grab somebody, is the surety on the hook, Mr. Watson?
Mr. WATSON. Well, you're asking me, sir?
Mr. SCOTT. Mr. Roche will get an opportunity to respond.
Mr. WATSON. What I think the committee perhaps doesn't understand is exactly how the water hits the wheel in these situations. The bounty hunter, in many, many cases, if not even in most cases, is not directly employed by the person who posted the bond in the first place.
The bounty hunter checks the alias warrant listings, finds out who is a bail skip, scouts around the community, locates that person, calls the agent who wrote the bond, and says, I've got Jim Brown laid down out here, it's $50,000 skip, what'll you give me to bring him in?
What is that agent going to say?: No, I'd rather pay the $50,000? He's going to say: Well, I'll give you $3,000. So he's in the process of bringing Jim Brown in, and Jim Brown escapes and while the bounty hunter is chasing Jim Brown so he can still make his $3,000, he shoots and injures an innocent third party.
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That's the way it happens from time to time. It's not a clear-cut situation where the bounty hunter is contracted ahead of apprehension for the services of the bounty hunter.
Mr. SCOTT. Mr. Chairman, will we have another round, because I want to follow up on this and I have some other questions?
Mr. CANADY. If the gentleman wishes, we certainly will.
Mr. Bryant.
Mr. BRYANT. Thank you, Mr. Chairman. I appreciate the gentleman from Arkansas filing this bill. It's a bill that I think I would like to support as much as possible, however I don't know Mr. Scott's view on that issue. He certainly raises a concern that I have. At this point, there does seem to be some doubt, and I would tend, out of an abundance of caution, to side with Mr. Watson's interpretation of that provision under 1983. My concern is when someone is placed in that situation, they're acting under color of law. That to me has always meant that they would be like an employee of the State or a city or a county who have official capacities. You can have a judge or a policeman who is off duty, not operating under color of law, and obviously the city or county would not be liable for his or her actions. But once they come under that veil of operating under color of law, then the city or county or State becomes liable for them.
And, I want to support this, but my concern is the issue of expanding the liability over to States and so forth, and cities and counties, or however that might work. It seems to me the simplest measure would be for the States to regulate these folks, license them, require certain standards and a bond, a surety. Then by making them an agent, as we do in this bill, there would be a fairly clear liability and a fairly clear source of money that any judgment could be collected from.
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But, Mr. Drimmer, again, I think both you, Mr. Watson and Ms. Hagin are most familiar with this issue. Have I persuaded you, Mr. Drimmer, or——
Mr. DRIMMER. I think I'm going to stick to my original position on this.
Mr. BRYANT. Okay.
Mr. DRIMMER. If you were to look at cases, for instance, against other private entities deemed by law to be State actors under color of law. Now, for example, private prisons. If there's a tort by a prison guard in a private prison, it's not imputed to the State. You can't then get State liability. None of the cases, so far, that have come out have held that or even come close to holding that. So, I would say that for the most part, while it is a valid concern, it's simply not applicable in this case.
Mr. BRYANT. Is there a contractual provision, perhaps, between the private prison and the State, where they're relieved of that liability. Is that the basis?
Mr. DRIMMER. The basis is the policy or practice or ratification language of Monell v. New York Social Services. I think that that really makes a very high burden for any individual to meet, whether they're suing a private entity acting under color of State law or a public entity acting under color of State law. In those instances, it's very difficult to actually make the State liable.
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Mr. BRYANT. Ms. Hagin or Mr. Watson, let me ask you the question Mr. Scott asked Mr. Drimmer about. If we somehow took that out of the bill, that requirement under the 1983 color of law provision, how would it harm the bill? Would it lessen it any in terms of setting forth requirements?
Ms. HAGIN. Maybe I could speak very quickly.
Mr. BRYANT. Yes.
Ms. HAGIN. I will echo a lot of what Mr. Drimmer has to say. I think the key there is what the bill is trying to achieve. And what it needs to achieve is to make sure that citizens are free from unreasonable searches and seizures, excessive force. That's what Civil Rights is about, and I welcome the opportunity to brief the issue for you in more detail, about Monell. But I do want to read the operative language Mr. Drimmer was referring to because it's critical. Under Monell and all the other Supreme Court law that follows it, including all the Supreme Court law that deals with privatized government functions like prisons, you know, it's very clear that the conduct of the state, the Goverment policy there, must have affirmatively given rise to the wrongdoing; There's just no way, that I can see, under that kind of law, that kind of standard—which is the standard that we're dealing with—that conduct of the bounty hunters who are, if anything, performing according to the policy of their industry, not any State policy, would reach the municipality.
Mr. BRYANT. Well, let me—I know my time has run——
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Ms. HAGIN. Sure.
Mr. BRYANT. But, just as your example——
Ms. HAGIN. Sure.
Mr. CANADY. Without objection, the gentleman will have three additional minutes.
Mr. BRYANT. Thank you.
Ms. HAGIN. Thank you.
Mr. BRYANT. Thank you, Mr. Chairman. Could the State not be drawn in for failing to set standards and letting loose into that State somebody who's got a criminal record this long of violent crimes?
Ms. HAGIN. That's an excellent question. Under Monell, no. Not only does it have to be an affirmative action——
Mr. BRYANT. An affirmative action, okay.
Ms. HAGIN. Deshanney was the case about the child, the 1989 Supreme Court case, and the allegation there was that the State had actually failed to protect him through their protective services, the child abuse services. And the Court was very clear: No, no, it must be an affirmative act, not a failure to act. There's no respondeat superior connection there. It's very clear under Monell; liability doesn't run that way. And, in fact, the governments get qualified immunity, at least, as well.
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So, I just don't see it. I don't. It's an excellent question, though.
Mr. BRYANT. Mr. Watson.
Mr. WATSON. Yes, Congressman, I think, perhaps, what is being missed here, in all due respect to Ms. Hagin and Mr. Drimmer, is the fact that there are two very distinct lines of cases in the Federal courts on this question. On State actor, relative to bail bonding or bounty hunting, the courts have held that where the bounty hunter is acting in very close contact and even under instruction of local law enforcement, he is, in fact, a State actor. But where he is acting as a private person, he is clearly not a State actor, and I can site a very simple case of A. Abel v. Landrey, 1996 case, and I'm familiar with it because I was involved in it.
The bounty hunter got a warrant in Natchitoches, Louisiana, came after a fugitive to Nederland, Texas, picked him up, took him back and surrendered him to the sheriff in Natchitoches and they put him back in jail. The question arose as to whether or not, as part of a lawsuit in that case, that bounty hunter was acting under color of State law.
The Federal court judge in the southern district of Texas and the 5th Circuit held that he was not acting under color of State law even though he had an arrest warrant in his pocket, and even though he crossed State lines, he was not acting under color of State law because he did not show the warrant, demonstrate the warrant, and ostensibly act pursuant to the warrant.
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Now, I believe there is a line of cases which establishes that failure to set policy when there is knowledge that policy should be set can itself be detrimental to the constitutional rights of citizens under section 1983. Those cases are in my authorities supporting my testimony.
Thank you.
Mr. DRIMMER. Can I just make a quick comment?
Mr. CANADY. Without objection, the gentleman will have 30 additional seconds.
Mr. DRIMMER. Thank you. The first thing is, if there is a line of cases that says that the State can be liable because it should set policy, and it would be liable in this case, well, it strikes me that what that is saying is that the State should be setting policies for bounty hunters.
Second, I think that this only identifies the problem. Mr. Watson identifies the problem. What we have are people who are quasi-judicial actors who act under the authority of the State who are going and making arrests. Using warrants, they're already acting directly under the color of the state. The reason there isn't a State action requirements in most jurisdictions is based on an anachronistic line of cases that says this is purely governed by contract. This dates to the Lochner era, and it simply isn't in accordance with what I would call modern State action requirements.
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And the third point I would simply like to make is that there are two lines of cases. One says that they are purely private actors, but I would point out, as was mentioned at the outset, the Jackson v. Pantazes case in the Fourth Circuit—it was mentioned at the outset—which very clearly holds that there is a symbiotic relationship between a bondsman and the state. And although there is an alternative ruling in that case that involved a police officer, the ruling is pristine on the symbiosis point.
Thank you.
Mr. CANADY. Thank you. The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Slaton, I apologize, I wasn't here when you testified; I read your testimony. I didn't get from the testimony any indication of your views on this legislation and I wonder if you would share those with me.
Mr. SLATON. I believe that a bail bondsman should be held liable for the actions—or, at least civilly—for the actions of the bounty hunter, especially because a lot of bondsmen tend to take the position that the more people out looking for a person, the better the odds of recovering the individual. That presents a danger for someone like myself, as well, because when we're operating in an area looking for an individual, even having notified local law enforcement that we're in that area, there are people out there that are just running around creating a wide variety of problems.
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One, negating the cooperation of the individuals that we're trying to approach for information, that we provide us information because I will tell you that a majority of it is someone telling you where the individual is.
But the liability aspect of it, I have not been able to find yet where I can get insurance. A bondsman knows the individual who he wrote the bond for, generally; sometimes they don't. And I only have to go on: what the charges are, basically; what environment or what area that that individual resides in, and things like that.
If I go out and recover an individual, I have to take that common sense approach, one, for my personal safety, as well as the safety of others. But as for the bondsman's attitude toward me is: he's going to go out there and do it, and if he doesn't do it, someone else will.
Mr. GOODLATTE. Do you think the bondsman should be held liable for the actions of the bounty hunter?
Mr. SLATON. Yes, sir, especially when he's indiscriminate in his hiring practices.
Mr. GOODLATTE. Do you agree with Mr. Watson's characterization that in a majority of these circumstances the bondsman is contacted at the end of the process rather than at the beginning? In other words, is it your experience that you're contracted to find somebody at the outset or do you go and look and see who's wanted and see what you can find? And when you find somebody, do you go to the bondsman and say, I found so-and-so, I want a fee for bringing him into you?
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Mr. SLATON. That is a way of getting work and it becomes different in the fee aspect of things, and there are people out there that do that. You can go down to the circuit court and you can look up forfeitures on the computer. And basically what you do is, you go pull the file from the clerk and you take a look at it, getting all your background information, and at that point, you look on the recognizance and you can determine who the bail bondsman is.
I don't think, from a bounty hunter's perspective, that it is wise to go out and look for someone without having a contract with that bondsman, both financially, but because of the information that the court has in their file versus the information that the bail bondsman would have.
Mr. GOODLATTE. Do you agree with his characterization that more than half of the recoveries take place under those circumstances?
Mr. SLATON. That would be hard for me to say percentage-wise. I do know a lot of people do that. I know that it goes from a 10 percent fee prior to forfeiture, to a 50 percent fee after forfeiture. Basically, a bondsman puts forfeits on a $100,000, my fee automatically becomes $50,000. But then, at that point, once I have the individual, the bondsman is looking at it as: Well, I'll go ahead and get my $100,000 back, pay the bounty hunter $50,000. And then, you know, he's still coming out ahead.
Mr. GOODLATTE. Or not as far behind.
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Mr. SLATON. Or not as far behind, yes. [Laughter.]
Mr. GOODLATTE. Let me ask all of you your thoughts on Chairman Hyde's suggestion that this bill be amended to include a Federal licensing provision for those bounty hunters who cross State lines and a requirement that the bounty hunter post a bond in order to the get the license. Let's start with you, Mr. Drimmer.
Mr. DRIMMER. I don't think that there's anything wrong with that proposal. The reason that I like this bill is that it is simple and doesn't create a new Federal regulatory scheme and it does allow States to implement their own licensing requirements, and tailor their provisions to their respective citizens. But from a pure perspective of, would there be a real problem of creating a national licensing scheme? I don't believe that there would be a big problem, as an alternative approach.
Mr. GOODLATTE. Mr. Roche.
Mr. ROCHE. I believe that there would be, unless you come up with very stringent criteria that would govern the rules of the game and the licensing procedure. Just to say that we're going to license people to go across State lines is not going to solve the problem.
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have three additional minutes.
Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Watson, do you want in?
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Mr. WATSON. Congressman, I think that it's workable. I joined in Congressman Hyde's suggestion because I believe that one of the primary if not the primary purpose of this committee in considering this resolution is to find somebody with some money to respond to the injuries caused by recalcitrant bounty hunter. That's a way to do it.
As to between that approach and this bill, that's definitely the more responsible and, in my opinion, the more constitutionally proper way to do it.
Mr. GOODLATTE. Ms. Hagin?
Ms. HAGIN. Well, it's an approach, if it were done in isolation, that would certainly not cut into the profits of the organizations that Mr. Watson represents. I think it's an interesting idea. I think it's an interesting idea as an amendment. I tend to agree with Mr. Drimmer, that this approach to the bill, per se, has simplicity in favor it. I also agree with Mr. Roche, that I don't think licensing alone makes sure that citizens are free from unreasonable seizures and excessive force, and have their Fourth and Fifth fundamental rights protected.
I did want to say very, very briefly—and the chairman has been very indulgent—with respect to Mr. Watson's hypothetical example, I think he put the number at 50 percent of where bounty hunters are just out there with their website credentials running around and they place a call to a bail agent company and say: I have the person, I know where the person is, what do you want me to do? I would suggest to you that that person, the bail agent company, should say: Who are you? What are your credentials? Before they send anybody off of a phone busting through somebody's house.
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Mr. GOODLATTE. Good point. Mr. Kerlikowske, do want to comment on Mr. Hyde's proposal.
Mr. KERLIKOWSKE. I think the Federal licensing is a difficult road to go down. I think we in New York have been able to take a much more strict view and, to be quite truthful, we have the ability to work into that system and influence that legislature more so than we have to influence you. On the other hand, I think that this is particularly helpful bill because the incident that occurred in Buffalo, the people were from Maryland. Having the fact that they, one, have to notify a local law enforcement agency, and the fact that also, they're going to be liable, puts a better burden on the process.
Mr. GOODLATTE. Thank you. Thank you, Mr. Chairman.
Mr. CANADY. Thank you. Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman. I think probably everybody would agree that there are problems with some bounty hunters. I presume that everybody would agree that there are problems with some attorneys. Probably some citizens believe that attorneys violate their civil rights, but I think we'd hear a howl of disapproval that would shake these walls if we are contemplating passing a law federalizing activity by attorneys that conduct themselves in a way that individual citizens believe violates their rights. One could pick out, I suspect, pretty much any profession in the country and point to examples about where individuals operating within that or as members of that professional violates somebody's sense of their rights.
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Does that provide the basis that we automatically federalize that activity? That's my concern. And I'm not really sure that we should, particularly in light of the fact that, it's my understanding that there are States that are taking action in this area. I believe there's also a professional organization representing the bail bondsmen that has proposed model rules and regulations. In light of that, would you all care to comment. Maybe, Mr. Watson, we could begin with you. What is the basis for saying, simply because we have a problem out there we out to federalize yet another range of citizen activity? And I know that some people predicate their view that we ought to do that based on, there's one paper here that says that ''bail bondsmen and bounty hunters are hired to perform core police functions.'' I'm not sure that's a correct interpretation of what core police functions are. But, if you could, generally, just comment, how are these problems being handled and should not and could not and are not they being handled more properly by State and local governments, rather than rushing to Congress to federalize yet another area of civilian activity?
Mr. WATSON. Yes, Congressman, thank you very much for calling on me. I do have some feelings on that point. I'll be brief, but I believe, despite the fact that, and notwithstanding the fact that I concurred with Congressman Hyde in his recommendation, I believe that there should be no Federal rush to legislation in this arena right now.
Only several months ago, did the notoriety about egregious bounty hunters give rise to a level of awareness on the part of State legislators and industry leaders—such as two of whom are sitting at this table today—that there was a very significant, real problem out there in the area of bounty hunting that needed to be addressed. And immediately, there was set apace a movement to do that at the State level. A multitude of State legislatures, even as we have this hearing today, are busily crafting bills to accomplish what needs to be accomplished to irradiate the problem of the irresponsible bounty hunter. And I would urge the committee to seriously consider at least waiting a year. At least give these State legislatures one session in which to cure their own problem. There is no question that as the law stands today, this bounty hunter problem is a pure State issue. If you don't pass this law, this bill that you're considering today, it is in fact, a State issue, a State-related issue. Purely. And if the State's are acting responsibly to cure the problem, my recommendation would be, why not allow them to do so? Why not give them that latitude? I think it would be the more responsible approach. Thank you.
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Mr. BARR. Thank you. Ms. Hagin, or do other members of the panel also may have some thoughts on that issue.
Ms. HAGIN. I appreciate being able to speak to it. I appreciate your concern, Mr. Barr, but the fact of the matter is that this is not a pure State issue. We think the bill in its current form is preferable to a regulatory scheme that would be an over-federalization. We think this bill is sensitive.
What we're talking about is fundamental civil rights. If this were just all a State matter, we wouldn't even have civil rights legislation in this county. And the other thing I want to say——
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have 3 additional minutes.
Ms. HAGIN. Thank you so much.
The States are not responding in the way they need to. They have a conflict of financial interest. They profit by being able to have their criminal justice systems assisted in this way——
Mr. BARR. But what, precisely, would be the additional remedy in practical terms for people, if this legislation were passed and we federalized all of these incidents. I mean, it's not going to create a pool of money that provides a resource that's not there now. There are remedies that individual citizens who have had their homes broken into improperly by bounty hunters can pursue. Does this——
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Ms. HAGIN. No.
Mr. BARR. Another concern that I have, other then my concern about federalizing a range of activities, what does this really add in practical terms to the individual citizen.
Ms. HAGIN. That's a good question, and I know you had to come late to this hearing, but we heard the profound stories of folks who had their fundamental rights violated, and tort law was insignificant to make them whole, because of this independent contractor legal fiction from the 1800's where bounty hunters are basically judgment proof, and the bail agent companies, the industry that makes good profit—I think unreasonable profit, right now, because they do it off the rights and liberties of individual citizens basically with impunity—those companies are not on the hook for being so irresponsible.
The other point I really want to make very quickly—I know you missed it—but I commend to you Mr. Roche's testimony earlier about how he has tried to move the State of Florida to be more responsible in this fashion. They got rid of a bounty hunting school in Florida that was outrageous, and it just went to another State.
Mr. BARR. Well, we do live in a Federal system——
Ms. HAGIN. I understand.
Mr. BARR. Just because there are wrongs doesn't mean we necessarily have to have a national standard——
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Ms. HAGIN. No.
Mr. BARR. [continuing]. That applies to everybody.
Ms. HAGIN. Absolutely. But with your indulgence, we're talking about civil rights.
And going back to your point about attorneys, I don't see this industry acting with the kind of responsibility, for example, of the National Association of Criminal Defense Lawyers, or that State licensing bodies with respect to attorneys do. If I was disbarred, despite all of my excellent training through the NACDL, that takes its responsibility so seriously, I could not just go ply my trade in another State. Bounty hunters do——
Mr. BARR. No, but, if there were a scheme perhaps similar to that which pertains to attorneys——
Ms. HAGIN. I'm sorry?
Mr. BARR.[continuing]. Where you have State associations that do mandate standards, that do enforce those standards, why would that not be preferable to federalizing this issue?
Ms. HAGIN. I think if an attorney's job was to carry guns through people's houses, do it for profit with no real training, that they should be subject to the civil rights laws, and I think, in fact, they are if they conduct themselves that way. And, you know, I think the analogy is apt. We're simply saying, this industry should not be allowed to operate like no other industry can, including privatized police guards and prison guards, and industries of that sort. It's really just a legal weed here, that for some reason has been allowed to exist outside the bounds of fundamental civil rights law.
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Mr. DRIMMER. Can I make a quick point, in addition to that?
Mr. CANADY. Well, the gentleman's time has expired. Does the gentleman want another 30 seconds.
Mr. BARR. I would certainly——
Mr. CANADY. Without objection, the gentleman has an additional 30 seconds.
Mr. DRIMMER. I need 15. I think that this isn't a purely State issue; this is an interstate issue. We heard earlier from Jrae Mason who was taken from New York to Alabama. We heard testimony from Commissioner Kerlikowske who talked about bounty hunters coming from Maryland into his State and having one of his men get killed.
So I don't think this is a purely State issue. I think this is a purely interstate issue, and it lends itself quite properly to congressional action.
Mr. KERLIKOWSKE. Just quickly, my organization is not in favor of federalizing many of the laws that really do pertain to State and local, and this is a very narrow issue, though, we have taken that position because it would help to notify police agencies when bounty hunters go from one State to another. The civil liability issue isn't my overriding concern, but I think it would help law enforcement to have this provision.
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Mr. BARR. Thank you.
Mr. CANADY. Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman. I think this is an unusual hearing just in the sense we have on one side the criminal defense attorneys' association supporting this legislation and then we have the law enforcement community as well, so I think this is a broad agreement that there's a problem that needs to be addressed. And I'm grateful for Mr. Slaton who testified, who indicated this was a problem that was out of control and that should be addressed.
I did want to put into the record a partial report of the Congressional Research Service addressing the State liability issue, and I'll just read, if I might, Mr. Chairman, a portion of that because I was concerned about this. This issue of State liabilities had been raised so I asked the Congressional Research Service to determine whether there would be any State liability imposed as a result of broadening Section 1983 to include bounty hunters, and the response was that traditionally, Section 1983 did not extend to the States.
[Reading.]
''This provision does not impose civil liability on States, and local governmental entities are not held responsible for the conduct of their employees but only for official policies which result in tortuous harm.''
And, of course, that cites the Monell case that's been discussed here. And it goes on and states the opinion that, ''there is no indication that the proposed act,'' the one before us today, ''would change this interpretation of the statute.'' And so I just wanted to put that into the record and I'll certainly make it available to all of my colleagues.
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Mr. Watson, you testified and I made some notes on your testimony because it was a significant change, I think, from our discussions yesterday and maybe even you written testimony. Mr. Watson, am I correct that in your testimony today, you indicated that you had no problem with requiring the bounty hunters to become State actors?
Mr. WATSON. I have no problem with that, congressman. To tell you the truth, and you were very gracious to visit with me yesterday afternoon. I went back to the hotel and did a lot of thinking about our visit, and with Ms. Shrader, incidently, who's very knowledgeable in the area, and I commend her.
You know, my industry has a real problem with this bill——
Mr. HUTCHINSON. The joint liability provision.
Mr. WATSON. Absolutely. You're putting us in the ring with a 300-pound aggressive plaintiff attorney wearing brass knuckles and tying our hands behind our back. We're strictly liable for the actions of the bounty hunter no matter how careful we are.
Mr. HUTCHINSON. Mr. Watson, I appreciate that concern. I just want to clarify for the record, though, that you had no problem with the provision in the law that provided that the bounty hunter would become State actors.
Mr. WATSON. Not if we could eliminate that strict liability provision.
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Mr. HUTCHINSON. It's the liability provision that causes you concern. And I think that you gave a factual situation in which a bounty hunter calls up the bonding company and says: ''I've got this guy, how much will you pay for me to turn him in?'' And you're pointing out that you shouldn't be held liable for what he did in arresting that one.
Did anyone want to comment on that fact situation? Mr. Slaton?
Mr. SLATON. Yes, sir, I have a comment about that. I get calls all the time, whether it be from a bounty hunter or whether it be from somebody that lives next door to somebody that we're looking for, by handing our card out. The responsible thing to do, from a bail bondsman perspective would be that once you take a call like that, you meet the individual that made that call, and if it is a bounty hunter, you can assess the situation with that individual, and also provide people that you rely on and that you know are legitimate professional recovery agents to go with him if it comes down to a financial thing—I'm not going to give you the information unless, you know, you pay me——
Mr. HUTCHINSON. I guess the point you're making is that a responsible bond company would meet with the bounty hunter, not make sure that you're not buying a pig in a poke, and somebody has not violated everybody's rights there, and it just puts some responsibility back on the bonding company.
Mr. SLATON. Absolutely. And, you know, going back to the situation where a neighbor would call the bond company saying that, you know: I know you're looking for this individual. You as a bondsman are not going to tell that person: Well, because I can appoint you as my bounty hunter, go ahead and arrest them. That would be ludicrous and it would be bad business sense.
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Mr. HUTCHINSON. All right. Ms. Hagin, did you have quick comment on that?
Ms. HAGIN. Very quick. I agree with everything the two of you have been discussing. That was my point earlier. I think you had to leave the room but I think the legislation makes the point, that before that person can just send anybody into people's houses to do whatever they will——
Mr. HUTCHINSON. Okay.
Ms. HAGIN. —they should find out who's calling them and what they're background is. I do want to make the point too——
Mr. CANADY. The gentleman's time has expired. The gentleman will have 3 additional minutes.
Mr. HUTCHINSON. Thank you.
Ms. HAGIN. Thirty seconds? You're very indulgent, Mr. Chairman.
Strict liability, as I understand it, means it doesn't matter if you were negligent, irresponsible, or anything else, and I don't understand that to be the law here that your bill would affect. It's not true that people who acted responsibly, who didn't act negligently, would be subject to any liability here.
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Mr. HUTCHINSON. Let me——
Ms. HAGIN. So I think strict liability as——
Mr. HUTCHINSON. All right.
Ms. HAGIN. —a term of art is inapplicable.
Mr. HUTCHINSON. All right. Thank you. I need to move on to another area here.
Mr. Watson, you indicated that in regard to the State liability issue, that you were concerned that if there was an absence of a policy, that that could lead to State liability, and you said that there was a line of cases cited in your testimony.
I reread your written testimony that you submitted, and under the section ''Requirement of State Action,'' there's a line of cases that's cited, but it concludes that, ''even extensive and detailed regulation is not generally sufficient to afford a finding of State action. The State must affirmatively support and be directly involved in the specific conduct being challenged.''
And I don't see any basis that would support the contention that there's going to be State liability in the absence of policy. Can you refer me to any case that would support that proposition?
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Mr. WATSON. Canton v. Harris, 489 U.S. 378, 1989, ''the inadequacy of police training may serve as the basis for liability only where the failure to train in relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the police come in contact.''
Mr. HUTCHINSON. And what page is that cited on? Where is that in your written testimony?
Mr. WATSON. Congressman, if it didn't get in there, it was an oversight on my part. I certainly intended to have it.
Mr. HUTCHINSON. That's fine, I just——
Mr. WATSON. I will send it to your staff.
Mr. HUTCHINSON. Okay, we've got that cite.
Are you familiar with that case, Leslie? Do you want to respond on that one case?
Ms. HAGIN. Well, he's pointed it out to me. I believe it's attached, in Mr. Watson's memoranda of points, to his testimony.
I'm familiar with the line of case law very intimately, and there you're dealing with the Government's police department, like the LAPD, for example. Well, of course, they have policies. That's what they do——
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Mr. HUTCHINSON. That's not a bounty hunter case?
Ms. HAGIN. That's not a bounty hunter case. You don't have a police department that exercises affirmative control over bounty hunters.
Mr. HUTCHINSON. Okay.
Ms. HAGIN. Yes. It's inapplicable. And deliberate indifference is a very high standard, by the way.
Mr. HUTCHINSON. Now, there's been some comment here that this bill federalizes the issue. Mr. Drimmer, would you comment on that? Tried to adopt something that was not setting up any Federal mandates for the States, but rather puts an incentive program for the States to do something. Just comment on the argument this is federalizing the issue.
Mr. DRIMMER. This isn't federalizing the issue, this is merely—I mean, the provision, especially the liability provision, is merely presenting a market scheme. It says, bondsmen now will have an incentive to actively monitor the bounty hunters they hire. They can't become immune from liability based on this independent contractor fiction. It creates a simple market solution to the problem of the lack of private oversight. I don't believe this is federalizing bounty hunting in any respect.
Mr. HUTCHINSON. Okay. Mr. Chairman, can I just read one quote to close?
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Mr. CANADY. Without objection, the gentleman will have 30 additional seconds.
Mr. HUTCHINSON. Ernest Hemingway said, ''There is no hunting like the hunting of man, and those who have hunted armed men long enough and liked it, never cared for anything else thereafter.'' [Laughter.]
Mr. Slaton, did you find in your profession some people are intrigued with the romance of this?
Mr. SLATON. No, not really. [Laughter.]
I myself, no.
Mr. HUTCHINSON. I'll leave that quote to Mr. Hemingway, and end on that. Thank you very much.
Mr. CANADY. Thank you very much, Mr. Hutchinson. Let me focus on a point here so that I make sure we understand who the actors are that we're talking about.
Now, we talk about the bondsman, who is the surety, right? No?
Mr. WATSON. No, sir.
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Mr. CANADY. The bondsman is the surety agent, right? No?
Mr. WATSON. The bondsman is an independent contractor who rents, for a price, from the insurance company their financial standings and credits as admitted insurers in the State in which the bondsman writes his bonds.
Mr. CANADY. So, you've got an insurance company, which is the surety, and then you've got the bondsman. Now, the bondsman is not also considered acting in the role of a surety? No?
Mr. WATSON. Let me explain to you, and I promise you I know more about this than Ms. Hagin does. [Laughter.]
Let me explain to you how it works.
Mr. CANADY. Okay, but looking at the bill, the way it's framed, are the bondsmen covered by the bill if they're not a surety?
Mr. WATSON. No, sir. Mr. Canady, the reason it's confusing is because technically, as between the State and the insurance company, the insurance company is the surety on the bail bond. Contractually, between the bondsman and the insurance company, the bondsman must pay all losses. This bill recites that for liability purposes, the bounty hunter shall be, as a matter of law, the agent for the surety which would be in most cases, the insurance company because it's their name that is listed as surety on the appearance bond which is filed in the court. That's the problem that we have with the bill. It don't see how you can read it to mean anything other than strict liability by the insurance company.
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Mr. CANADY. Let me—strict liability, obviously we've got intentional misconduct that's involved in these cases and the question is, who those people who are engaging in the intentional misconduct are acting for and why they're there doing it. So that's one issue.
Mr. Roche, I'm sorry if I'm mispronouncing your name again. You're a bondsman, right?
Mr. ROCHE. Yes, sir.
Mr. CANADY. Do you think this bill would impose liability on you.
Mr. ROCHE. No question about it.
Mr. CANADY. It would?
Mr. ROCHE. It would impose it in the sense that, for example, in California, we're having a problem that was outlined here earlier——
Mr. CANADY. I don't want to talk about California. Give me a straight answer, if you don't mind.
Mr. ROCHE. I'm not an attorney, but I believe it would.
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Mr. CANADY. Okay. That's because you're a surety? No?
Mr. ROCHE. No. I am appointed by a surety company in the State of Florida.
Mr. CANADY. Well, I'm just trying to get straight on the terminology here so we understand exactly who is what and who is responsible for what, because the bill by its terms refers to a surety on a bail bond, and any bounty hunter. Okay. Those are the people we are talking about. Now, if what you're telling me is accurate, you're not directly affected by this, as a bondsman.
Mr. ROCHE. I have been told by our attorneys that I would be directly affected by it. Yes.
Mr. CANADY. Okay. Well, I guess we—Mr. Drimmer, could you perhaps address that?
Mr. DRIMMER. Very short. Historically, the bail bondsman has been traditionally been called the surety. If you look at all of these cases, the Supreme Court case, for instance, that's often referenced, from 1873, it references the bondsman as the surety. And perhaps, you know, clarification in the bill, an additional term, may satisfy some people but throughout the history of this country, as long as bail bonding has existed, the bondsman has been known as the surety. It may have been changed in some States where there are different terminologies used, but for the most part, bondsmen have been known as sureties.
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Mr. CANADY. Okay. Do you disagree with that, Mr. Watson?
Mr. WATSON. I do not disagree that historically that is the general concept and if this bill said, for example, if this resolution said that the bounty hunter shall be the agent for liability purposes, of the individual or the organization that directly employed him, it would be a totally different resolution.
Mr. CANADY. All right. You don't care if the bondsman is on the hook, you just don't want the insurance companies to be on the hook?
Mr. WATSON. I'll admit to having no concern for the bounty hunters. I care about the agent and the company.
Mr. CANADY. Okay. [Laughter.]
That's fair. And a case could be made for that; I understand that.
Without objection, I'll have 3 additional minutes.
Let me focus quickly on the kind of conduct we're talking about here. Obviously we heard from the witnesses earlier, but I just want to get clear in my mind, when someone skips bail, what specific limitations are applicable to the police and the actions they can take, that are relevant.
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Mr. Drimmer, would you try to address that?
Mr. DRIMMER. Sure. I'll start with the time the defendant is released on bail. The police obviously can't make an arrest until the defendant has actually missed his trial date. That's something that, of course, doesn't apply to bondsmen and bounty hunters.
Mr. CANADY. They can grab him if they think they're going to miss it.
Mr. DRIMMER. For any reason, one. Two, the police are governed by the Fourth Amendment which prohibits unreasonable searches and seizures; the Fifth Amendment, which prohibits unnecessary coercing of confessions—Miranda requirements, et cetera; and the Interstate Extradition Clause which mandates that if a bounty hunter crosses State lines, they have to go through official process before they can bring a defendant back to the State of origin. Those are the main requirements the police have to abide by.
Mr. CANADY. Okay. What requirements do bounty hunters have to comply with?
Mr. DRIMMER. At present, in the overwhelming majority of jurisdictions, bounty hunters basically have to return the defendant back to the custody of the State in order to be paid. And that is it.
Mr. CANADY. What additional responsibilities would this bill place on bounty hunters?
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Mr. DRIMMER. My presumption, from reading the language, is that bounty hunters couldn't conduct unreasonable searches, and essentially what that means for the Fourth Amendment implications, is they're still free to make arrests. You don't need a search warrant in order to make an arrest, but you can't go too far beyond that. You can't suddenly search somebody's house for additional evidence simply because you're in there by right.
They also couldn't coerce confessions. They couldn't demand: Tell me you're guilty, tell me guilty. Or question the subject in order to create evidence.
Frankly, they aren't evidence gatherers. They're there to make arrests, and bring people back to the custody of the State, and I don't think this bill changes that function. I think that all it says is that if they exceed that function by too much, at that point, the other provisions that normally govern police officials would kick in.
I would point out that I don't know strictly how the Miranda application would apply. I don't know whether a court would construe it to actually apply in this case. I think it very likely would, but I point out that in the Federal Debt Collections Procedures Act, for ordinary debt collectors, there is a ''mini-Miranda'' requirement, and as soon the debt collector contacts the debtor, he has to say: I'm here to collect a bond and anything that you say to me can be used for that purpose, to help me to collect on the debt you owe.
So, even if we were to have this bright line rule of Miranda, I don't think that would be that onerous either, in light of current Federal statutory law.
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Mr. CANADY. Okay, thank you, Mr. Drimmer. My time has expired. We will at least have a partial second round. Mr. Scott I think has some additional questions.
Mr. SCOTT. Thank you, Mr. Chairman. When I ended the first go-round, we were talking about bounty hunters. That's been defined and it's obviously, without a license anybody can kind of just self-declare themselves to be a bounty hunter. As we've indicated, we don't define surety on a bail bond because that could me the insurance company, in all due respect, Mr. Watson, I think that's where we're aiming. But we would also hit mama's house, if it's put up as surety on a bond and if some Rambo looked on the score sheet and found that somebody is absent, went out and violated rights right and left, came in, would the mother be liable for the full judgment without limitation on the damage award. Mr. Drimmer?
Mr. DRIMMER. Under the current definition of the statute, it's not clear to me that it would. It's not something that I had focused on. I think that this really isn't the intent of the statute by any means. I think it is meant to hit private industry, the bondsmen and the insurance companies and not mom's house.
Mr. HUTCHINSON. Will the gentleman yield?
Mr. SCOTT. I will.
Mr. HUTCHINSON. Let me assure you, that was not the intent of the bill. [Laughter.]
Mr. SCOTT. I'm supporting the bill, let me just get that on the record. I'm not trying to do damage. Sometimes when you read the words, you get——
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Now, aiming at the insurance company, hitting where we're aiming—I apologize, Mr. Watson——
Mr. WATSON. We knew it.
Mr. SCOTT. If you have a—if you've written a $100,000 bond, the surety would be liable for damages in excess of the amount of the bond.
Mr. WATSON. No, sir.
Mr. SCOTT. That's the reading of the language and that's what we want to do. Is that right?
Mr. WATSON. Are you asking me, sir?
I did not read it that way, sir. No, I did not read it that way?
Mr. SCOTT. Do you read the language in the bill to limit your liability to the amount of the bond?
Mr. WATSON. No, sir, I do not. I read the bill to say that if a misbehaving bounty hunter injures somebody, they go get a jury verdict for $1 million, then the insurance company who is the surety on the bail bond has to pay the $1 million as a matter of law. They have to pay the $1 million regardless of how responsible they have been in the interim.
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Mr. SCOTT. Does it also suggest that you would be liable whether or not you have a relationship with bounty hunter?
Mr. WATSON. Absolutely. This bill requires absolutely no privity of any kind between the insurance company's surety and the bounty hunter. And——
Mr. SCOTT. Wait. Mr. Drimmer, is that the way you read the language?
Mr. DRIMMER. The way I understand——
Mr. SCOTT. If Rambo on his own goes and gets somebody, the wrong person, trying to save this bond, is the insurance company liable although they had no privity of contract with——
Mr. DRIMMER. The way I understood this bill to work from reading it, and the way that I still understand it today, is that the bondsman is the one who is going to be directly liable. The bondsman has liability insurance, the liability company would then of course, whatever terms of the contract exist, would have to payout or not payout, whatever defenses are contained in coverage——
Mr. SCOTT. You read the word to say surety on the bond, which means the insurance company, regardless of whether they had a contract with the bondsman, would be on the hook for the full damages for somebody they didn't even know and had no contract with?
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Mr. DRIMMER. The way I read the bill is that the bondsman would be liable. If the bondsman does have insurance, liability insurance, then that insurance would cover, presumably, the bondsman's employees. It's entirely possible that the liability insurance would not cover the employees, it might be limited to the bondsman himself. But there certainly has to be privity of contract between the bondsman and the insurance company.
Mr. SCOTT. Okay, then that——
Mr. ROCHE. Mr. Scott?
Mr. SCOTT. Mr. Roche.
Mr. ROCHE. I own an insurance company in Florida. I'm CEO for that company, Roche Surety and Casualty Company. Sir, I'm unaware of any liability insurance policy, that can be sold to a bail bond agent. And that is part of the problem here, I think. Mr. Watson has admirably addressed this problem but one cannot buy an insurance policy to cover up these liabilities like you would to cover your home.
Mr. SCOTT. Can I ask a couple quick questions?
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. SCOTT. Okay, I've got a number of additional questions I want to get in, in this minute.
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Mr. CANADY. It may be a long minute.
Mr. SCOTT. Should people with convictions for violent criminal offenses be able to be bounty hunters?
Mr. ROCHE. Presently, as the law exists, yes.
Mr. SCOTT. They can now, but should they be?
Mr. ROCHE. Should they be? Absolutely not.
Mr. SCOTT. Okay. Should bounty hunters be required to obtain arrest warrants?
Mr. ROCHE. I believe that they should be required to obtain copies of arrest warrants, yes, sir.
Mr. SCOTT. So that there's an outstanding warrant for the people who they're going to snatch off the street and drag across State lines—let me just ask all these questions and then you can answer them as the chairman gives us time.
Is there any implication on if they're acting under the color of State law whether the evidence that's obtained in one of these violations of civil rights, whether or not that evidence may be tainted as it would be if it were a police officer?
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And whether the idea of independent contractors and agents would have any internal revenue implications on hiring.
And, finally, Mr. Kerlikowske, what's the police department supposed to do with the information if somebody comes in and says: I'm a bounty hunter. What are you going to do?
And, until the chairman shuts you up——[Laughter.]
Mr. CANADY. I wish that we could continue and give you time right now to answer all of those. Unfortunately, I have to be somewhere else and so we're going to have—and some other people have been promised this room at 1 o'clock, so our time has just about run out.
What I would suggest is that, if possible, we could receive written responses to those questions, to any of you who wish to respond. And if you could do that relatively soon, like tomorrow, or as soon thereafter as possible, that would be very helpful.
Mr. SCOTT. Or informally after the hearing is over.
Mr. CANADY. Yes, or we may have an opportunity, informally. Again, I don't want to cut this short but we have been here for quite a while there are other things. But the last word is going to go to the gentleman from Arkansas, although I think the best word was from Hemingway, and he's already used that. [Laughter.]
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The gentleman from Arkansas is recognized.
Mr. HUTCHINSON. I just want to thank the chairman for this hearing. This has been a good format, particularly hearing the earlier panel with the victims, the people who have suffered under this. But this panel, and we've had a wide-ranging discussion and debate, and I just think it's been terrifically helpful.
Mr. Scott has raised some questions that we need to look at very closely, and some of you all have commented on those.
The intent of the bill is simple, and I think it is correct. The idea was that whoever hires that bounty hunter has some responsibility. That's the idea and I hope that we can eliminate some of the snafues or the difficulties. For a surety that's mentioned in the legislation, a surety, at least my view of it, is that somebody has to sign that bond, and when they do that affirmative act, they accept some responsibilities, and we don't want the mom who signs for the son, because she didn't hire that bounty hunter. If she hires a bounty hunter, that's a different matter. But that's the goal of this legislation and I'm convinced after hearing it that we're going in the right direction, but that we need to do some fine-tuning.
But I just want to thank the panel, thank the chairman. I'll yield back whatever time.
Mr. CANADY. Thank you, Mr. Hutchinson. And, again, I want to commend you for your leadership on this issue. Mr. Scott, we appreciate your involvement in this.
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And, finally, I want to thank all of you. Your contribution, as I said at the outset, is very important to us and we want to carefully consider all of the perspectives that you brought to the table today. We thank you for taking the time to be with us, and waiting around while we were over there voting. And we may be in further contact with you on matters related to this issue.
The subcommittee will stand adjourned.
[Whereupon, at 12:56 p.m., the subcommittee adjourned subject to the call of the Chair.]
(Footnote 1 return)
It should also be noted that the remedy created by §1983 is supplemental to any other common-law or statutory remedies, and it is very common for a §1983 plaintiff to join with his or her federal claim several state common-law claims as well. Moreover, a plaintiff who fails to prevail on his or her §1983 claims (because, for example, he or she cannot establish the existence of state action as discussed below) might still prevail upon the related state-law claims.
(Footnote 2 return)
See Coastal Bail Bonds, Inc. v. Cope, 697 So.2d 48, 53 (Ala. Ct. App. 1996) (Crawley, J., dissenting) (bounty hunters ''have generally been considered independent contractors under the common law''); Division of Employment Security v. Hatfield, 831 S.W.2d 216 (Mo. Ct. App. 1992) (bounty hunter independent contractor); see also Ruiz v. Herrera, 745 F. Supp. 940 (C.D.N.Y. 1990) (allowing discovery into whether bounty hunter was independent contractor or agent, and thus whether bondsman could be liable).
(Footnote 3 return)
Although a recent judicial ruling in Ohio states that henceforth bondsmen and bounty hunters will be jointly liable for a bounty hunter's misconduct, that ruling has not been in effect for a sufficient period of time to gauge its impact on the bonding industry in that state. See Hayes v. Jeff Goldstein/ABC Bail Bonds, No. 70791, 1997 Ohio App. Lexis 703 (Ohio Ct. App. Feb. 27, 1997).
(Footnote 4 return)
According to the Department of Insurance, the legislation enacted by Florida had little impact on the rate of increase in the number of licensed bail agents in the state. In 1978, there were approximately 350 such agents. Ten years later, in 1988, there were about 700. In 1994, when Florida created the joint liability scheme, there were 1100 licensed agents. Today, there are almost 1400.
(Footnote 5 return)
See Bureau of Justice Statistics, Pretrial Release of Felony Defendants, 1990, at 2–3 (1992) (stating that approximately 60 percent of persons freed before trial on bail posted a surety bond).
(Footnote 6 return)
Pannell v. United States, 320 F.2d 698, 699 (D.C. Cir. 1962) (Wright, J., concurring).
(Footnote 7 return)
According to one study, 99.2 percent of all suspects committed to the custody of bondsmen are returned to court. See Charles Oliver, National Issues, Investor's Bus. Daily, May 12, 1994, at 1 (the private bail system has a 0.8% fugitive rate); 2 Aggies Devise Plan to Curb Crime, Houston Chron., Jan. 2, 1993, at 26. A 1990 study by the Burean of Justice Statistics states that, among the nation's 75 most populous counties, the figure is 3 percent. See Bureau of Justice Statistics, Pretrial Release of Criminal Defendants, 1990 8–9 (1992).
(Footnote 8 return)
See Malcolm M. Feeley, The Process is the Punishment 96–108 (Russell Sage ed., 1992); Paul B. Wice, Freedom for Sale 55 (1974).
(Footnote 9 return)
Unfortunately, at present, only seven states have such licensing schemes.