SPEAKERS CONTENTS INSERTS Tables
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65–062
2000
BOUNTY HUNTER RESPONSIBILITY ACT OF 1999
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 2964
MARCH 30, 2000
Serial No. 107
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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 S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
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CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
March 30, 2000
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TEXT OF BILL
H.R. 2964
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress From the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Babb, Theresa, Wilmington, NC
Drimmer, Jonathan, Chevy Chase, MD
Deutsch, Hon. Peter, a Representative in Congress From the State of Florida
Hirsch, Milton, attorney at law, Miami, FL
Hutchinson, Hon. Asa, a Representative in Congress From the State of Arkansas
Moore, Chinelle, Laurel, MD
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Moore, Roger, attorney at law, Roger Moore, P.C.
Nahmod, Sheldon, professor of law, Chicago-Kent Law School
Nickolich, Tom, AAA Bailbond Company
Reed, Pamela, Coventry, RI
Roche, Armando O., president, Professional Bail Agents of the United States
Stanford, Russell, Detective, Fraternal Order of Police
Stein, John, National Organization for Victim Assistance
Watson, Jerry, general counsel, National Association of Bail Insurance Companies
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Babb, Theresa, Wilmington, NC: Prepared statement
Drimmer, Jonathan, Chevy Chase, MD: Prepared statement
Hirsch, Milton, attorney at law, Miami, FL: Prepared statement
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Moore, Chinelle, Laurel, MD: Prepared statement
Moore, Roger, attorney at law, Roger Moore, P.C.: Prepared statement
Nahmod, Sheldon, professor of law, Chicago-Kent Law School: Prepared statement
Nickolich, Tom, AAA Bailbond Company: Prepared statement
Reed, Pamela, Coventry, RI: Prepared statement
Roche, Armando O., president, Professional Bail Agents of the United States: Prepared statement
Stanford, Russell, Detective, Fraternal Order of Police: Prepared statement
Stein, John, National Organization for Victim Assistance: Prepared statement
Watson, Jerry, general counsel, National Association of Bail Insurance Companies: Prepared statement
APPENDIX
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Material submitted for the record
BOUNTY HUNTER RESPONSIBILITY ACT OF 1999
THURSDAY, MARCH 30, 2000
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 2:35 p.m., in Room 2237, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles T. Canady, Asa Hutchinson, and Melvin L. Watt.
Staff present: Cathleen Cleaver, chief counsel; Paul B. Taylor, counsel; Susana Gutierrez, clerk; Anthony Foxx, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order. This afternoon the subcommittee convenes to consider H.R. 2964, the Bounty Hunter Responsibility Act of 1999. This is legislation introduced by a member of our subcommittee, Representative Hutchinson, legislation which addresses what I believe to be an important gap in the law concerning bounty hunters. I believe there is an anomaly in the law now under which bounty hunters are not treated as persons who are acting under color of State law for purposes of the civil rights laws, and this legislation is aimed to correct that anomaly in the law.
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[The bill, H.R. 2964, follows:]
106TH CONGRESS
1ST SESSION
H. R. 2964
To clarify that bail bond sureties and bounty hunters are subject to both civil and criminal liability for violations of Federal rights under existing Federal civil rights law, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 28, 1999
Mr. HUTCHINSON (for himself, Mr. CANADY of Florida, Ms. LOFGREN, Mr. SHADEGG, Mr. ALLEN, Mr. HASTINGS of Florida, Mrs. NORTHUP, and Mr. PICKETT) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To clarify that bail bond sureties and bounty hunters are subject to both civil and criminal liability for violations of Federal rights under existing Federal civil rights law, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
This Act may be cited as the ''Bounty Hunter Responsibility Act of 1999''.
SEC. 2. CLARIFICATION OF APPLICATION OF CIVIL RIGHTS LAWS.
(a) IN GENERAL.—For purposes of section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), section 242 of title 18, United States Code, and other Acts of Congress providing civil or criminal liability for the deprivation of Federally protected rights under color of any statute, ordinance, regulation, custom, or usage, of a State—
(1) a surety on a bail bond;
(2) an agent of such surety; or
(3) any bounty hunter;
seeking to obtain or exercise custody over a person admitted to bail under the laws of a State is acting under color of a statute, ordinance, regulation, custom, or usage of that State.
(b) AGENCY RELATIONSHIP.—
(1) GENERALLY.—For the purposes of subsection (a), a bounty hunter, if acting as an independent contractor or an employee of a surety, is an agent of that surety.
(2) EXCEPTIONS.—A surety or agent is not responsible for the conduct of the bounty hunter if the surety or agent takes all reasonable steps to assure that the bounty hunter is licensed in a State that requires licenses for bounty hunters, or is licensed as a private investigator in a State requiring such licenses.
(c) ATTORNEY FEES.—If the court finds that a civil action under this section based on the conduct of a bounty hunter is frivolous or has been brought in bad faith, the court shall order the plaintiff to pay the defendant's reasonable attorneys' fees and other litigation costs.
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SEC. 3. NOTIFICATION TO LAW ENFORCEMENT.
It shall be the duty of each surety on a bail bond, each agent of such surety, and each bounty hunter, who, in a State, personally seeks to obtain or exercise custody over a person admitted to bail outside that State, before commencing activities in that State, to inform the local law enforcement agency of the presence of such surety, agent, or bounty hunter, and of the intention of that surety, agent, or bounty hunter to seek to obtain or exercise custody over that person. This requirement does not preempt any additional requirements imposed on any such surety, agent, or bounty hunter by such State.
SEC. 4. MODEL GUIDELINES.
(a) IN GENERAL.—Not later than 180 days after the date of enactment of this Act, the Attorney General shall publish in the Federal Register model guidelines for the State control and regulation of persons employed or applying for employment as bounty hunters. In developing such guidelines, the Attorney General shall consult with organizations representing—
(1) State and local law enforcement officers;
(2) State and local prosecutors;
(3) the criminal defense bar;
(4) bail bond agents;
(5) bounty hunters; and
(6) corporate sureties.
(b) RECOMMENDATIONS.—The guidelines published under subsection (a) shall include recommendations of the Attorney General regarding whether a person seeking employment as a bounty hunter should be—
(1) allowed to obtain such employment if that person has been convicted of a felony offense or an offense of moral turpitude under Federal law, or of any offense under State law that would be a felony or an offense of moral turpitude if charged under Federal law;
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(2) required to obtain adequate liability insurance for actions taken in the course of performing duties pursuant to employment as a bounty hunter;
(3) prohibited from obtaining employment as a bounty hunter if the individual has been declared mentally incompetent by a court;
(4) required to complete successfully a State approved basic certification course in the criminal justice system;
(5) required to complete successfully a handgun training course; or
(6) required to submit to a fingerprint-based criminal background check prior to entering into performance of duties pursuant to employment as a bounty hunter.
SEC. 5. DEFINITIONS.
As used in this Act—
(1) the term ''bounty hunter'' means a person, other than a public official engaging in official duties, who, for compensation or a reward from a surety on a bail bond or an agent of such a surety, seeks to obtain or exercise custody over another person for purposes of criminal judicial proceedings; and
(2) the term ''State'' includes any territory or possession of the United States and the District of Columbia.
Mr. CANADY. I am going to dispense with an extended opening statement given the lateness of the hour and the fact that we have a very full complement of witnesses for the hearing this afternoon. So I will now recognize Mr. Watt.
Mr. WATT. And following your lead, Mr. Chairman, I will do the exactly the same and just submit my statement for the record.
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Mr. CANADY. Thank you, Mr. Watt. On our first panel today, we will hear from two Members of Congress. First, we will hear from Congressman Asa Hutchinson of Arkansas' Third Congressional District, who as I have already indicated is the original sponsor of H.R. 2964 and who is a member of our subcommittee.
We will also hear from my colleague from Florida, Congressman Peter Deutsch, who represents the 12th Congressional District of Florida. I want to thank both of you for being with us and testifying this afternoon. Do your best to confine your remarks to 5 minutes as illuminated and we will then proceed with the rest of the hearing. Representative Hutchinson, you are recognized.
STATEMENT OF HON. ASA HUTCHINSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS
Mr. HUTCHINSON. Thank you, Mr. Chairman, and Mr. Watt. 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 Bounty Hunter Responsibility Act. In fact, I have a compilation of recent bounty hunter abuses, and I would like to have them admitted into the record. Mr. Chairman, they indicate these abuses occurred in the States of Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maryland—I could go on through the entire list, but it clearly indicates this problem is a national problem and I would ask that this be entered into the record.
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Mr. CANADY. Without objection, that will be entered into the record along with your full written statement, as well as the full written statement of Representative Deutsch and the other witnesses this afternoon.
Mr. HUTCHINSON. Mr. Chairman, 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 to provide whatever information is required under that State's laws.
A number of States have adopted similar notification requirements and believe it is appropriate to enforce these at the Federal level when interstate travel is involved. The Bounty Hunter Responsibility Act fulfills an important public safety goal, namely, keeping innocent citizens safe from the abusive actions of rogue bounty hunters and it does so, very importantly, without creating a new Federal bureaucracy or imposing any mandates on the States.
It is important to note that 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. 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.
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As the chairman and Mr. Watt know, a similar bill was introduced in the 105th Congress and passed out of this subcommittee. After listening carefully to concerns expressed in the last Congress I have made some changes to the bill. First of all, there is an exemption that has been added to the vicarious liability provision to exempt a surety on a bail bond from liability for the actions of a bounty hunter if the surety has taken all reasonable steps to assure that the bounty hunter is licensed by a State.
This protects responsible bail agents and yet encourages the States to take appropriate regulatory steps to license bounty hunters. The provision was added at the request of a bail agent in my State. Secondly, I have added a provision to discourage frivolous lawsuits against bail agents. The language provides that in such cases the individual bringing a frivolous action will bear all of the costs associated with the case. This provision discourages and penalizes frivolous lawsuits.
Third, and finally, I have added a provision specifically at the request of the bail industry asking the Attorney General to design model guidelines for States to use if they choose to regulate bounty hunters within their borders. Mr. Chairman, this legislation has been endorsed by the Fraternal Order of Police, the National Sheriffs Association, the National Troopers Coalition, the Police Executive Research Forum, the National Center for Law Enforcement, and very importantly, the National Organization for Victim Assistance as well as the National Association of Criminal Defense Lawyers.
With the changes I have outlined, I am confident the legislation strikes a good balance between the need to protect innocent parties and the need to rein in abusive bounty hunters. I want to thank you for holding this hearing and I look forward to the continued testimony today.
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Mr. CANADY. Thank you, Representative Hutchinson. Representative Deutsch.
STATEMENT OF HON. PETER DEUTSCH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. DEUTSCH. Thank you, Mr. Chairman. Thank you for the courtesy of inviting me to testify today. As the chairman I am sure recalls, I had the distinction of serving in the State legislature as chairman of the insurance committee in better days when the chairman was the member of a different party so they were clearly better days for many people in many ways. But within our jurisdiction was the regulation of bail bonds industry in Florida, which came under the jurisdiction of the insurance commission.
And I am here today really to talk about really from a Florida perspective what this legislation would do. Florida has extensively investigated, regulated, had bail bonds study commissions regarding the system that exists in Florida. Florida is one of the 45 States that has a commercial bail system which along within the Federal system as well exists today. And, I think, from a Florida perspective, it is a system which works very efficiently in the State of Florida.
And if we talk about State's rights as a concept this is a piece of legislation if it were to pass would fundamentally change what the State of Florida has chosen to do, and the reason why I believe that to be accurate is that in 1983 as a requirement—first of all, Florida doesn't allow independent bounty hunters period. But besides that, this legislation would effect bail agents and would in fact increase insurance costs somewhat. I mean predictions are, and there will be other testimony by other panels exactly what the cost factors are but there is no question that it will dramatically drive up the cost of doing business as a bail agent in Florida.
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And the availability of the commercial bail industry would fundamentally change in Florida. Now how the Florida legislature will respond to that, I am not sure, but it will in fact change a system that the State of Florida from a bipartisan basis over a relatively long period of time is in fact relatively accurate. The legislature has the ability to change it and has changed it on occasion what has happened with the existing system.
If this legislation were to become law, that system would have to change because just of the effects in the marketplace. The cases that Mr. Hutchinson talked about, whether they are bail bondsmen, those egregious situations or for that matter bounty hunters are clearly egregious situations so indefensible period. But in Florida at least when things like that occur there is an existing tort system which is used to penalize people within the State court system for those abuses outside of a normal standard of care, a reasonable bounty hunter or reasonable bail bondsman activity.
And in fact there are cases that occur on a regular basis, obviously a very infinitesimal percentage of the actual incidents, probably in fact I have been told, and again there will be testimony to this effect in another panel, dramatically less than police officers. That doesn't make two wrongs make a right but it is not a system that is perfect. The human condition is not perfect. But there is an existing system that affects—let me on the positive side though say that Mr. Hutchinson's bill does include several, I think, very positive things.
One is a notification provision, which does seem to be an appropriate Federal action to require local notification when bail bondsmen or for that matter bounty hunters are within jurisdiction and also the knock and announce provision, which is also, I think, an appropriate provision that should be included in the legislation. Finally, the legislation besides unintended consequences changed in the law in Florida could in fact, I think, potentially lead to even worse result because of the idea of giving liability effectively to situations in terms of the relationship between the bail bonds and actually the actual agent that is out there.
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In Florida that has eliminated bounty hunters. My sense with the industry in Florida would in fact go back to the existence of bounty hunters because once there were bounty hunters if they complied with the provisions of his legislation would now receive effective immunity in terms of 1983 actions. So one of the unattended consequences of this legislation, I think, would in fact be reintroducing a system that Florida has chosen because of a variety of abuses to eliminate in previous years. I yield back the short balance of my time.
Mr. CANADY. Thank you, Representative Deutsch. I want to thank both Representative Hutchinson and Representative Deutsch for their testimony. We appreciate your being here and now Representative Hutchinson will join us at the desk. And we will move to the second panel of witnesses. If the witnesses who are to appear on the second panel will come forward to take your seats, we are going to distribute the name cards so you will know where to be seated, but I will proceed now with the introduction of the witnesses.
On the second panel this afternoon we will hear from three victims of bounty hunter abuse. First, we will hear from Chinelle Moore of Laurel, Maryland. After Ms. Moore we will hear from Theresa Babb of Wilmington, North Carolina. The third and final witness on this panel will be Pamela Reed of Coventry, Rhode Island. I want to thank all of you for taking the time to be with us this afternoon. We look forward to hearing of your personal experiences with the sorts of abuses that this legislation is aimed at. So now we will proceed with the testimony of Ms. Moore.
STATEMENT OF CHINELLE MOORE, LAUREL, MD
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Ms. MOORE. Hi. On July 19, 1998, I heard a loud bang at my door saying open up, police. I got some clothes on and I ran to the door and I opened up the door, and with the chain slightly on the door the men forced their way into my home. They flashed a badge and started going through my kitchen drawers, going through the closets, throwing furniture around. Then they started to draw their guns and started to enter the second floor.
At that time I had not awakened my 5-year-old daughter or my mother, who was in the house at the time. Then after that the men told my mom—my mother had woke up and heard the noise and told us to stay in the room and sit on the bed. And they held us there at gun point. They then proceeded on the third floor where my daughter's room is, and started calling us names, yelling at us, started slapping us around, pushing us into furniture, back on the bed.
Finally, I made my way off of the bed and tried to make my way up on the third floor and one of the men who had the gun was getting ready to enter my daughter's room. I asked him please to allow me to get my daughter. He did not do so, so I then jumped in front of the guy who had the gun and then he struck me in the face knocking me down a flight of stairs.
I jumped up and I heard a loud scream and it was coming from my daughter's room, and by the time I could make it to my daughter's room, he had already drawn the gun out on my 5-year-old daughter. I then grabbed my daughter, and my mom was still on the second floor and we then left the home. And as we were leaving, there were some other bounty hunters stationed outside of the home. A lady came from behind the bushes and another lady came, there were two women, and started pulling me and kicking me and trying to choke me and knocked me down to the ground, punching me in my head, just beating me, kicking on me.
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And after that we heard police sirens and then as I tried to get up off the ground, I was pepper sprayed several times at close range. I then screamed for help and the police came on the scene and I was transported to Laurel Regional Hospital. Since the incident has taken place, I have lost my job for excessive absenteeism. My daughter and I are suffering from post-traumatic stress disorder.
I have had to be put on antidepressants. Before this incident, I was a single parent and I had began my life in Washington, DC working at a major university trying to obtain a degree. At this point I am with a low paying job. I have no health benefits because of my excessive absenteeism needing to take care of my daughter who is very distraught over the whole incident. She has to repeat the second grade. Her reading comprehension is not up to second grade level. We suffer from paranoia. My whole life is just up in shambles right now. The dreams of my being able to go on to college is on hold right now. Our neighbors don't speak to us. We are threatened. And I think that the bill is very important that this bill is passed so that the behavior of the bounty hunters could be monitored because at this point you have people who are losing their lives, and we can't continue to allow the civil rights of innocent people to be violated.
My daughter, I hope you look at my daughter. My daughter is only 7 now and she says, ''Mommy, we need to go and we need to get a gun so that this doesn't happen again.'' I don't want to send that kind of message out to my 7-year-old girl that we need to have a gun to sleep in our own home to be safe in America.
[The prepared statement of Ms. Moore follows:]
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PREPARED STATEMENT OF CHINELLE MOORE, LAUREL, MD
On July 19, 1998, I was beaten down by a group of bounty hunters. I heard a loud bang at my door early in the morning around 5 o'clock a.m. I heard yelling and banging on my door telling me to open up police, and one of the men flashed a badge. I asked them to please let me get some clothes on. I then went to the door, and I left the chain lock on the door. The men then forced their way into my home. Pushing me aside, they started going through my kitchen drawers and closets. They were calling me obscene names. They were throwing my dining room chairs around on the floor. I asked them to please allow me to get my daughter, who was only five years old at the time, and alert my mother, but the men ignored me and proceeded to the second level of my home.
I then ran to the phone, and I dialed 911 for the first time. With guns drawn, they proceeded to enter my daughter's room. I asked them not to enter her room with the gun, and they refused. I then stood in front of them, and I was beaten in my face and knocked down a flight of stairs. We attempted to call 911 again and decided to flee our home for safety. As we were leaving the front entrance, another group was stationed outside my door. One of the women who was hiding behind the bushes began to attack me by beating me in the head and face and knocking me to the ground. Another woman started kicking me and pulling my hair. While doing this, they were using racial slurs. Another man came and pepper sprayed me at close range several times. Because they heard the sirens from the ambulance and police cars, they proceeded to run, stating that we should get used to it because they'd be back tonight.
After my release from the hospital, I went to the local Commissioner's Office to file a complaint. He was not cooperative, as he assured me that the bounty hunters had more authority than the police. He had already been made aware of the incident and had attempted to delay the process by refusing to send the paperwork to the district attorney's office to see if charges could be filed. I had to call the local police department myself to file a report. After questioning local officials regarding the situation, the district attorney's office did eventually get a copy of the complaint. I have never gone to visit my brother in Prince George's County jail, nor at the time did I know the whereabouts of my brother. He was later arrested in Pennsylvania. To date, the bounty hunters were never questioned, and we don't know if an investigation ever really took place because Sergeant Hardester of the DA's office in Upper Marlboro, Maryland reported that in the middle of his investigation, the case was referred back to the City of Laurel for reasons ''unknown.''
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Since the incident, some of the hardships that I have suffered include losing my job at a major university because of the obsessive absenteeism for medical care for myself and my daughter. It was my dream to be able to finish my education there. My daughter's college education would've been paid for, as well as my own. I have suffered from a broken nose, eye disease and post traumatic-stress disorder and had to receive antidepressants. My daughter suffered from a damaged cornea. She has psychological problems and has never slept in her bedroom since the incident. My daughter, my mother and myself all now suffer from paranoia and post-traumatic stress disorder. I am now forced to survive on a lower paying job with no medical benefits.
My daughter is in special education now, whereas previously she was not. She's had speech and reading comprehension problems, such as stuttering, and she continues to struggle with reading comprehension. She has problems focusing on her school work. I have to gather the pieces of my life and try to continue on while the bounty hunters continue to victimize other families and innocent children. My daughter had never seen a real gun before this violent episode, and she had never been sprayed with pepper spray before, nor had she ever seen her mother get beaten to a pulp before. And now as a child, she has the worries of an adult because she needs a weapon to defend her home, herself, and her mother. All she had to worry about before was just being a five year old child. I never feel safe at home. I feel as though I'm constantly being watched by whomever.
I pray that I will some day be free of these ill-feelings. And so, I beg you to use my daughter as an example for other children across the country and help to stop these malicious gang-like acts. My family and I were lucky because no one was killed, but people across the country are getting killed. A bounty hunter made a statement that they had more authority than the police officers. Well, how could that be when they receive their licensing from a mail order service. Even as I speak to you here today, there are families somewhere in the U.S. getting terrorized and victimized by bounty hunters. This bill is desperately needed because these bounty hunters' actions should be closely monitored, and it will save lives and also protect the civil rights of innocent people.
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Ms. CANADY. Thank you very much, Ms. Moore. Ms. Babb.
STATEMENT OF THERESA BABB, WILMINGTON, NC
Ms. BABB. Mr. Chairman and members of the committee, in January of this year a younger brother of mine hired a bonds company. He was to appear in court in March of this year but due to unseen circumstances that would arise, he did not. His bond was forfeited. At the time my brother was supposed to appear in court, my father had been in a tragic automobile accident. Instead of being in court, he was at the hospital with the rest of my family awaiting to hear of my father's progress.
Approximately 2 weeks after my father's accident, I was walking down the hall of the hospital when I saw a young man dressed in blue jeans, a tee shirt, a pair of cowboy boots with a gun on his hip. He was exiting my father's intensive care trauma unit. I questioned one of my sisters outside the door and she told me he was a bounty hunter. His name was Thomas Hoefler and was there looking for my younger brother. I, along with my other family members, were terrified.
We went into the intensive care unit to find out he had been there. He did not talk with any medical personnel, he just went into the unit searching with the gun on his hip. The nurse was terrified. We all were. I couldn't imagine what he was doing in such a place with a gun. He not only put my father's life in danger, he put the other patients that were there in danger.
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My family and I contacted the special police force and security department for the hospital. We were told that no firearms were permitted on the property and it was clearly posted. We filed a report with the hospital and contacted the bounty hunter's employer. The bounty hunter returned to the hospital and spoke with my family and me. On his return, he did not carry his gun but I gather that was because we notified his employer of the rules and regulations of the hospital.
In speaking with the bounty hunter, I told him that his behavior was out of place and he was not to ever come back. I asked him to call his employer and let him know I was willing to pay whatever money was owed to them and to let our local law enforcement officers handle whatever business was left to be handled with my brother. The bounty hunter made a call to his employer and told me the amount of the bond but informed me that he did not want the bond. He didn't want the money, he wanted to catch my brother.
My sisters, my brothers and myself tried to explain to him that this was a very hard time for us. We were going through a lot with our dad and we wanted our privacy. We told him it wasn't the time or the place for such behavior, that we thought it was wrong. He seemed to find this very amusing. The police at the hospital escorted him out that night and I didn't see him again for 2 weeks.
On March 11 of this year, Michael John Marchese died. My sisters, my brothers and I lost our father. His funeral would be on March 14 of this year, so we were told. My sisters, my brothers and I went to great lengths to plan my father's funeral. I went to the funeral home and dyed his hair. We got all his grandchildren together. One of my oldest brothers was supposed to stand vigil over his grave until he was lowered into the ground. That was my father's last request.
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The afternoon of the 14th, my family and our friends met at Saint Mary's Catholic Church for a beautiful and sacred ceremony. We left the church and went to the cemetery for grave-side services. We arrived at the cemetery where Father Drew Perry led the service. Each one of us placed a rose on my father's casket and that is when the ceremony ended for my father, my family and everyone else there.
In an instant, there were people running all over. Graves were trampled, flowers were all over the place. People were running and screaming. I stood there. I didn't know what was going on. I couldn't figure it out until I saw him, the bounty hunter. The last memories I have of my father's funeral was of chasing a bounty hunter and begging him to stop. I remember hearing my brothers and sisters yelling about how wrong it was.
I went after one of my brothers who was walking behind the bounty hunter trying to convince him of how wrong he was. I saw the bounty hunter raise his hand with a can in it. I yelled to my brother to raise his shirt because I knew the bounty hunter was going to spray him with mace. To my amazement that is not what happened at all. The bounty hunter lunged toward me. He sprayed me. I fell to the ground. I couldn't breathe. I couldn't see. I was paralyzed.
My husband took me away to wash out my eyes and by the time I got back they were dumping dirt on top of my father's grave. His grave site looked as though a battle had been fought here, which I guess in essence it was. Everyone was leaving. Children were crying. People were talking about how they were held at gun point and cars were searched. In the middle of all this stood the bounty hunter, Thomas Hoefler.
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I walked up to him and asked him if his parents were alive. He said yes, both of them. He grinned. I told him one day he would stand where we would and he would regret it. But there he stood with a gun on both sides of his chest and a can of mace and very proud. He said his only regret was not catching Pete.
The following day my family with to our local law enforcement office. We wanted to know why he had been at a funeral and been able to desecrate it and have our local law enforcement there with him. We were told that a bounty hunter has more authority than law enforcement. We were told the bounty hunter called for backup and they had to answer. We got a very nice apology and were told that was all they could do. No laws had been broken. I went to court with my brother on March 27, the one who all this revolved around. The charges were misdemeanors and they were all dropped.
You would have thought that the bounty hunter was chasing someone that was a threat to society, someone that was a danger to have on the streets for the briefest of moments, but that wasn't the case. It was just someone facing misdemeanor charges that were thrown out of court anyway. Because of a simple misdemeanor an entire group of people were subjected to a horrific experience and a family was forced to miss a loved one's funeral and have to live forever with the memories of an unforgettable experience, and the fact that we can never reclaim that day. We cannot go back and fulfill Michael Marchese's wishes, and he was our dad.
Bounty hunters shouldn't be able to do whatever, whenever. They shouldn't have more authority than the law. Unless bounty hunters are held responsible for their actions there are always going to be innocent people hurt or worse. They have to be expected to act in a professional, responsible manner. Thank you.
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[The prepared statement of Ms. Babb follows:]
PREPARED STATEMENT OF THERESA BABB, WILMINGTON, NC
In January of this year a younger brother of mine hired a bonds company. He was to appear in court in March of this year but do to unseen circumstances that would arise he did not appear in court on the day he was suppose to. His bond was forfeited. At the time my brother was supposed to appear in court my father had been in a tragic automobile accident. Instead of appearing in court my brother along with the rest of my family was awaiting news at the hospital of our father's progress.
Approximately two weeks after my father's accident I was walking down the hall of the hospital when I saw a young man dressed in blue jeans, a green tee shirt, a pair of black cowboy boots, and a gun on his hip exiting my father's intensive care trauma unit. I questioned one of my sisters who was outside the door of the unit about the young man and I was told he was a bounty hunter. His name was Thomas Hoefler and he was their looking for my younger brother. I along with my other family members were terrified. I went into the intensive care unit to find that yes he had been there. He did not talk with any of the medical personnel, he just went into the unit searching, gun on hip. The nurse on duty said ''I was scared to death''. We all were. The thought of what he was doing in such a place with a gun was inconceivable. He not only put my father's life at risk but the other patients as well.
My family and I contacted the special police force and the security department for the hospital at once. We were told that no firearms were permitted on the property and it was clearly posted at all entrances. We filed a report with the hospital and immediately contacted the bounty hunter's employer. The bounty hunter returned to the hospital and spoke with my family and I . On his return he did not carry his gun in with him but I gather that was because we notified his employer about the rules and regulations of the hospital.
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In speaking with the bounty hunter I told him that his behavior was out of place and he was not to ever come back to the hospital asked him to call his employer and let him know I was willing to pay whatever money was owed to them and that our local law enforcement officers could handle whatever business was left to be handled with my younger brother.
The bounty hunter made a call to his employer and told me the bond amount but informed me that they didn't want the money they wanted to catch my younger brother.
My sister, my brothers and myself tried to explain to the bounty hunter that this was a time in our lives that was very hard for us, we were all going through a lot with our father and we really wanted our privacy. We explained that it was neither the time nor place for such behavior. We explained to him that we found his behavior to be extremely out of the way and all his actions that night could only be explained as wrong. The bounty hunter seemed to find us amusing. The police at the hospital escorted him out that night and I didn't see him again for approximately two weeks.
On March 11th this year Michael John Marchese died. My sisters, my brothers and myself had lost our father. His funeral was March14th of this year, so we are told. My sisters, my brothers and myself went to great lengths to plan my fathers funeral. From myself going to a funeral home to dye his hair for him, to getting all his grandchildren together, to planning on one of my oldest brothers standing vigil over his grave until he was lowered into the ground. This was my father's last request.
The afternoon of the 14th, my family, and our friends met at Saint Mary's Catholic Church for a very beautiful, sacred and very solemn ceremony. We left the church and went to the cemetery for the grave side services. We arrived at the cemetery where Father Drew Perry led the service. Each one of us placed a rose on my father's casket and that's when the ceremony ended for my father, my family and everyone else there. In an instant there were people running in all directions, graves trampled, flowers all over the place. People running and screaming I just stood there in shock not being able to figure out what was going on until I saw him, the bounty hunter. The last memories I have of my fathers funeral were of chasing after the bounty hunter and begging him to stop. I remember hearing my brothers and sisters yelling about how wrong all of this was. I went after one of my brothers who was walking behind the bounty hunter trying to convince him of how wrong he was when the bounty hunter turned towards him. I saw him raise his hand with a can in it. I yelled to my brother to raise his shirt because I knew the bounty hunter was going to spray him with mace. To my amazement that's not what happened at all. The bounty hunter lunged towards me and he sprayed me. I fell to the ground. I couldn't breathe, I couldn't see. I was paralyzed. My husband took me away to wash out my eyes and by the time I got back the first thing I see was a back hoe dumping dirt on top of my father's grave. His grave site looked as though a battle had been fought there, which I guess in essence it was.
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Everyone was leaving, children were crying, people were talking about how they were held at gun point and cars were searched. In the middle of all this stood the bounty hunter Thomas Hoefler. I walked up to him and asked if his parents were alive. He said ''yes, both of them'' he grinned I told him that one day he would stand where we were and he would regret what he had done. But there he stood a gun on both sides of his chest, a can of mace and very proud of what he had done. He said his only regret was not catching who he had come for.
The following day my family went to our local law enforcement office. We wanted to know why the bounty hunter had been able to come to a funeral, desecrate it and have our local law enforcement there with him as if they worked for him. We were told that a bounty hunter has more authority then law enforcement. We were told the bounty hunter had called for backup and they had to answer his call. We got a really nice apology from them and were told that's all they could do. There hands were tied. No laws had been broken.
On March 27th, I went to court with my younger brother. The one who all this revolved around. I was amazed to find out that the charges were misdemeanor and they were all dropped.
You would of thought that the bounty hunter was chasing someone that was a threat to society, someone that was a danger to have on the streets for the briefest of moments, but no that wasn't the case it was just someone facing misdemeanor charges that were thrown out of court anyway. And because of a simple misdemeanor an entire group of people were subjected to a horrific experience and a family was forced to miss a loved ones funeral and have to live forever with the memories of an unforgettable experience, and the fact that they can never reclaim the day, cannot go back and fulfill Michael Marchese's wishes. Our dad.
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Bounty hunters shouldn't be able to do whatever, whenever. They shouldn't have more authority than the law. Unless bounty hunters are held responsible for their actions there are always going to be innocent people hurt or worse. They have to be expected to act in a professional, responsible manner. Thank You.
Mr. CANADY. Thank you, Ms. Babb. Ms. Reed.
STATEMENT OF PAMELA REED, COVENTRY, RI
Ms. REED. This is just recalling the events of a vacation that happened with my husband, my two children and myself in October 1994. We had gone out to California to spend a week with relatives and visiting the different sites out on the West Coast. We had a really great vacation up until the day before we were coming home. We had rented a condo for a week and moved out of the condo the day before we were to arrive back in Rhode Island so we could be closer to the airport.
We had taken a room at a Motel 6. After my husband, myself and the children went into the office of the motel to check in, we went and found our room, unpacked the car, and the kids walked around the pool and checked out to see what else the hotel had to offer for them to do during our stay there. We left the hotel, went out to dinner, and we took a ride to a mall after that, spent a couple hours out at the mall.
We came back to the motel room. The children fell asleep between 8:00, 8:30, 9. My husband had fallen asleep and I was watching TV. I woke my husband up and told him to get into bed rather than just sleeping on top of the bed. Shortly after that there was pounding and swearing and yelling going on outside our door. My husband got up out of bed, went to look out the peephole of the door and looked out the window of our hotel room to find two men flanking the door with guns drawn.
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My husband was asking them who they were. They said they were Rescue personnel, to open the door, and we didn't call Rescue personnel. And I work with Rescue personnel and I know we don't go to people's doors with guns drawn like that. I got on the phone and I called the front desk to tell them someone is trying to get in our room. I hung up the phone. The man was still yelling at us to open the door, pounding on the door. My husband was telling them we were a family from Rhode Island. We had children in the room.
That didn't seem to make any difference to them. One of them had left and started walking toward the office, and he came back with the motel manager. In the meantime, I had got on the phone and called 911 and was on the phone with the operator and she said she thought she might know who was at the door, that it might be a bail recovery person, to ask them who they were.
While I was on the phone with her, I asked them again who they were. You could hear on the 911 tape them using profanity telling us to open the door. They still did not tell us who they were. The motel manager was talking to them and evidently they talked the motel manager into handing over the motel room key which they unlocked the motel room door. We had the dead bolt on the door so the door wouldn't open up. They eventually kicked it open. Two men came barging in the room.
One man held my two children, ages 5 and 18 at the time, in bed at gun point. The other one came over to the bed where my husband and I were, took me by the arm out of the bed with the gun drawn and cocked in my face, told my husband to get on the bed with the children, asking who I was, what I was doing there. I told them repeatedly who I was, what we were all doing there, told them where my identification was. He went in to my pocketbook to find out who I was trying to tell them who I was, found out that they were wrong, that I wasn't who they were looking for.
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The man went and got on the telephone because the 911 operator was still on it. I hadn't hung up. I just dropped the phone. He had me standing in the room with my arms up over my head like I was the bad guy. So the 911 operator asked them if they had guns drawn on us people and he said yes because I had told her previously that they did and they weren't licensed to carry concealed weapons.
The police came because I had called 911. There was a helicopter over our room with the light shining in. By this time everybody is out at the motel looking to see what is going on. The bounty hunters walked out of the room when they realized that I wasn't who they were looking for, told us to stay put. My husband followed the bounty hunters out of the room. I was completely shaken up. I had chest pains. I was scared to death. I thought we all were going to be shot. I thought I was going to be shot or raped or something in front of my husband and my children. We had no idea what was going on.
After we all filed reports with the police department, we asked them if we could have them arrested for what they had done and they said if we did, we would have to remain in California to appear in court the following morning and if the judge ruled that we had falsely arrested the bounty hunters we could get charged with false arrest and end up in trouble with the law for doing so.
So we decided that we would go home and file criminal charges against them from the State of Rhode Island, which we eventually did. We finally got a hold of a lawyer in California who flew out to Rhode Island to hear the story, took on our case, hired another attorney. We had to fly out to California a couple of times to testify against them. Orange County, California pressed charges against them for false imprisonment and assault with a deadly weapon. They were put on probation.
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We had to go back to court in 1996 for our suit against them and the motel. A jury found the motel to be 70 percent at fault and the bounty hunters to be 30 percent at fault of which the bounty hunters did not follow up on their point. They claimed bankruptcy and got away with absolutely nothing. I feel that laws should be changed. I found all the people within the State where I live since this has happened to me that bounty hunters have gone into their house, threatened them, physically abused them.
My children suffer from post-traumatic stress disorder as well as I do. My husband still gets headaches. We still have fear of going away. I still have fear of being by myself. Things need to be governed a little bit better. They have more run than the police departments, local police departments, do where we live. Things need to be changed.
[The prepared statement of Ms. Reed follows:]
PREPARED STATEMENT OF PAMELA REED, COVENTRY, RI
This is a written statement recalling the events of my vacation in California during October 1, 1994 and October 10, 1994.
My husband, our two children, and myself ages 18 years and 5 years set out to California on October1, 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.
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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.
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 banging on the door and yelling for us to open up! We asked them who they were. They said they were ''Rescue.'' We did not call for rescue, and they had guns drawn. I am part of a rescue team, and 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 a lot 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 that gave directions on how to call for help if needed. I had to dial 9 for an outside line, then 911.
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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 we 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 and toward the office of the motel. The other stayed at the door yelling at us. Th other guy came back with the manager. I was still on the phone with the 911 operator, and she kept telling me to find our who they were. But the guys would not tell us who they were. Meanwhile, outside the manger was talking to these guys, and then we saw 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 then 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 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 was 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 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 that 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 that we 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 called 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 lawyer's office and explained what had 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 bar association and get back to us. We didn't get much information from him. A friend of mine heard what had happened to us and referred us to an attorney in California. We called him and told him what had 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 pressed charges against the guys, and the attorney general's 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 the 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 California. All four of us had to testify. The case started on August 5th and continued until August 14th. The jury found the motel to be 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, headaches, 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 my husband and me under his pillow for one and a half years. He would not go out to play with his friends. He always had to be with us. He was upset for a long time. My husband and I 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, Ms. Reed. Mr. Watt.
Mr. WATT. I was just unclear, Ms. Moore, from your testimony, who the bounty hunters were looking for.
Ms. MOORE. Well, they didn't specify who they were looking for when they came in. They told us a Jerome Davis and we didn't know a Jerome Davis. Later on we found out that they were looking for my brother, who did not reside at the residence.
Mr. WATT. And, Ms. Reed, it was unclear to me who they were looking for in your case too.
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Ms. REED. They were looking for a prostitute that had jumped bail.
Mr. WATT. So no connection at all——
Ms. REED. No, sir.
Mr. WATT [continuing]. With your family or anything.
Ms. REED. No.
Mr. WATT. All right. I think that is all. I think the stories are profound and I appreciate you all being here to share them with us but I don't think there are any questions that I have about the stories other than those two. Thank you.
Mr. CANADY. Thank you, Mr. Watt. Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman. I want to express my appreciation to each of you for taking the time and trouble to come and tell your story. It is certainly very compelling and really heart wrenching whenever we see children involved and families going through a time of grief and then having to struggle with this side issue that is absolutely no making of your own. And so thank you for sharing that today.
I want to emphasize the point that Ms. Reed stated that the bounty hunters were sued but they declared bankruptcy. There was not anyone who had any stability that could give you any recourse, is that correct?
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Ms. REED. That is correct.
Mr. HUTCHINSON. And for each of you though, did anyone apply for crime victims' compensation?
Ms. MOORE. No, sir.
Ms. BABB. No.
Ms. REED. No.
Mr. HUTCHINSON. We have a gentleman here from the National Organization of Victim Assistance and he wanted to make the point that you certainly might qualify under different programs for crime victims' assistance because you are certainly a victim of a crime. I just wanted to mention that. But thank you for your testimony today and I yield back, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Hutchinson. I want to join with my colleagues in expressing my gratitude to you for taking the time to be here. I know it is not pleasant to have to recount experiences that are as painful as the experiences that you have gone through. I am sorry that these things happen and hopefully this committee will be able to act to help provide more meaningful remedies for those who suffer the same sorts of wrongs that you have suffered. Again, my thanks goes out to you for your participation and helping the committee carry out its responsibilities. Thank you very much.
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The subcommittee will now move to the testimony of the third panel of witnesses this afternoon. I might ask the witnesses who will appear on the third panel to come forward and be seated. I will proceed with the introductions.
The first witness on this third panel will be Jerry Watson. Mr. Watson is General Counsel for the National Association of Bail Insurance Companies.
The next witness will be Jonathan Drimmer of Chevy Chase, Maryland. Mr. Drimmer has written one of the most comprehensive law review articles on bounty hunting, and he is appearing today as a scholar of the laws and regulations governing bounty hunting in the United States.
Following Mr. Drimmer will be Roger Moore, an attorney from San Antonio, who specializes in the area of bail bond licensing and litigation. Mr. Moore is also an adjunct professor at Nova Southeastern University Law School and a vice chair of the Federal local rules committee for the Southern District of Florida.
The final witness on this panel is Sheldon Nahmod.
Mr. Nahmod is a professor of law at Chicago-Kent Law School. He is an expert on section 1983 litigation and the author of a leading treatise on the subject.
I want to thank all of you for being here. We would ask that you do your best to confine your remarks to 5 minutes, which will expire when the red light is illuminated, although I don't think we are going to find that anyone will insist on strict adherence to the 5-minute rule.
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As I have indicated earlier, without objection your full written statements will be made a part of the record of the hearing today. We will begin with Mr. Watson.
STATEMENT OF JERRY WATSON, GENERAL COUNSEL, NATIONAL ASSOCIATION OF BAIL INSURANCE COMPANIES
Mr. WATSON. Thank you, Mr. Chairman. Mr. Chairman and Congressman Watt and Congressman Hutchinson, let me thank each of you for the privilege of appearing before you this afternoon. The stories we have heard from Ms. Moore and Ms. Babb and Ms. Reed certainly are stories that should never have to be told again by anybody. And there is not any question but that the men who caused those stories to have to be told in the first place and men like those men should be controlled. That is not the question. The question to us is who should do the controlling.
These are State court cases. These are people acting pursuant to State law and our position is simply that the States should control them. When we were here before you on this same issue 2 years ago we asked that you give the States at least one session to see what actions they might take to exercise their right of control in this given area. And I am pleased to report to you this afternoon that in 26 States since then bounty hunter specific legislation has been introduced.
Nine of those bills have passed. Thirteen of them are presently pending and that leaves only by my count 10 States that still require and really need some bounty hunter specific legislation. And our industry is working with those States to try to bring that about now. I took the opportunity to just do a quick review of the sampling of recent bounty hunter abuses that Congressman Hutchinson mentioned in his testimony.
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I counted there 91 cases. They range back over 15 years. Seventy-one of those cases occurred in States which have now passed remedial legislation in this area. The other 20 are in 5 States where legislation is either pending or where we are working with legislators to try and get corrective legislation passed. That, however, is not the most troubling thing about this bill. I believe the most troubling thing about the bill is the fact that it in itself, should it be enacted, poses a real public safety danger.
Last year the insurance companies who underwrote criminal court appearance bonds in State cases in this country wrote about 4 million of those bonds. That industry did a very, very good job of getting those people monitored and back to court. Over 98 percent of them ultimately stood before the bench for the disposition of their criminal cases. Those people, those 4 million people, are going to have to get out of jail some way each year because the jails won't hold them. The jails are already overcrowded.
There is only one other way out for those people if the commercial surety field is not available to take them out and that is by their own promise to reappear, their own recognizance, if you will. This bill will have the effect of taking out of the arena the insurance companies that underwrite the criminal court appearance bonds in this country. We cannot survive under this legislation.
We know something about people who get out of pre-trial custody on their own recognizance. We know, for example, that 40 percent of them never reappear. We know also that 15 percent of them commit other crimes and are arrested for committing other crimes during their pre-trial release. We also know that of persons released on a commercial surety bond only 9 percent are rearrested for the commission of other crimes while on release.
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This 6 percent differential of those 4 million people will create 240,000 new crimes that would not be committed were this bill not passed. We believe that the bill is enormously dangerous, very unnecessary and in all due respect, we would ask that it be defeated. Thank you, sir.
[The prepared statement of Mr. Watson follows:]
PREPARED STATEMENT OF JERRY WATSON, GENERAL COUNSEL, NATIONAL ASSOCIATION OF BAIL INSURANCE COMPANIES
Let me thank the Chair and all Committee Members for the opportunity to be heard.
My name is Jerry Watson, and I am General Legal Counsel to the National Association of Bail Insurance Companies.
I am opposed to H.R. 2964.
While this measure is apparently borne of good intentions (promoting public safety), it is misguided in at least the following respects:
I. IT ATTACKS THE WRONG TARGET.
In its proposed impositions of severe financial and criminal penalties it lumps together ''bail bond sureties and bounty hunters.''
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The folly of this improper grouping is demonstrated by the fact not only that there exits absolutely no privity between these two parties, but the insurance companies (sureties) who write most of America's bail have actively encouraged passage of state laws making bounty hunters illegal.
This bill, unfortunately, does not seek to determine actual responsibility for improper actions by a bounty hunter at all. It seeks, rather, to cast about for someone, somewhere in the vicinity, who has the wherewithal to respond financially for a bounty hunter's wrongful acts.
One should realize that not only is there no connection whatsoever between the insurance company surety and the bounty hunter, the company is not even aware that: (1) a bounty hunter is engaged or (2) a fugitive is even at large.
The companies' only ''fault'', and the sole reason they are made a part of H.R. 2964, is that they are not judgment proof.
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. 2964 chooses to ignore the fact that the surety does not hire the bounty hunter and has no control over the person who does hire the bounty hunters.
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Yet, H.R. 2964 makes the surety, automatically and fully, vicariously liable for the acts of the bounty hunter.
This is, at best, tort reform in reverse.
II. IT WOULD ESTABLISH AN ERRONEOUS CLASS OF ''STATE ACTORS'' JUST TO CREATE NEW FEDERAL JURISDICTION.
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. 2964 runs clearly counter to all this law.
The law H.R. 2964 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.
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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. 2964 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.
H.R. 2964 runs clearly counter to all this law.
III. IT WOULD REVERSE THE RESOLVE TO LET THE STATES MANAGES THEIR OWN AFFAIRS.
H.R. 2964 might make more sense if the states were silent or irresponsible in addressing the need for reforms in the bail fugitive recovery arena.
But this is definitely not the case.
Since this same measure was before the Committee just two years ago, 26 states have introduced legislation regarding this subject.
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Of these, 9 states have enacted bounty hunter specific laws with 14 others pending in the 2000 Session.
This is a state-related issue. The states are handling it. Why take this away from them and give it over to the federal government when there is no need to do so?
IV. IT WILL DESTROY ONE OF OUR JUSTICE SYSTEM'S MOST EFFECTIVE INSTALLATIONS.
Some four million criminal court appearance bonds were underwritten last year by America's commercial surety companies.
The benefits to local government are too great to count. Not only does this practice reduce jail overcrowding, monitor and return to court the vast majority of these defendants, but it does all of this at absolutely no cost to government.
H.R. 2964 will create such a virtual deluge of new litigation as to render these service providers incapable of continuing. Already chief executives of these underwriters are advising that the ensuing costs of litigation in the wake of H.R. 2964 will financially decimate their companies.
One does not need a crystal ball to foresee the myriad of H.R. 2964 lawsuits coming upon the apprehension of bail fugitives. Every person, so incarcerated, will be promptly visited by an aggressive member of the plaintiff's bar ''advising'' him of how his civil rights could have been violated, and of the treble damages windfall forthcoming.
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This has H.R. 2964 taking a strange turn away from more responsible recent legislation discouraging undue litigiousness; witness in the class action arena, Private Securities Litigation Reform Act of 1995—Presidential veto overridden, and Uniform Class Action Act of 1997.
CONCLUSION: H.R. 2964 should not become law.
Mr. CANADY. Mr. Drimmer.
STATEMENT OF JONATHAN DRIMMER, CHEVY CHASE, MD
Mr. DRIMMER. Thank you, Mr. Chairman. Thank you for inviting me here today. As you know, I have been invited here as a private citizen so any views I express can't be attributed in any way to the government or the Department of Justice for which I work.
Mr. Chairman, the broad search and arrest rights of bounty hunters is not disputed. I don't think anybody up here is going to dispute the fact that they do have very broad search and arrest rights.
They have the right to break into a defendant's home without a warrant, make arrests using all necessary force including deadly force if needed. They can temporarily imprison defendants. They can carry defendants over State lines in nearly every jurisdiction in this country. And I think it is also not going to be disputed that bounty hunters generally are unlicensed, often untrained, that ex-felons enter the profession or that injuries occur at their hands to innocent victims like we have heard from today.
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And I am almost certain that nobody up on this panel is going to object to my statement that bounty hunters should be trained professionals if this profession should continue to exist at all. The only serious points of dispute that we have are, number one, whether the Federal Government should have any role in protecting the American public from the abuses caused by bounty hunters, and, number two, whether this bill provides those protections without unduly hindering bondsmen or bounty hunters in the important activities that they engage in.
My testimony to both of these questions is yes, and I will explain why. First, I do believe that the Federal Government should have a role in protecting the American public. I say this primarily for two reasons. Number one, bounty hunting is an inherently interstate practice. Bounty hunters often must cross State lines to look for and catch bail jumpers and it is fundamental that the framers of the Constitution gave Congress plenary power over interstate conduct to regulate just this type of interstate activity.
It is also fundamental that legislation addressing inherently interstate rights belongs with the Federal Government alone. A second reason that, I think, Federal legislation is necessary is that this bill does provide an important clarification under existing Federal law. Essentially who better than Congress to define the actors that fall within the scope of laws Congress itself enacts. And contrary to what Mr. Watson said, right now we only have 13 States out there that have licensing requirements for bounty hunters, so I think a Federal response is clearly necessary.
The second question pertains to specific provisions of this bill. In my view this bill addresses the three primary problems that are unaddressed by the current system and it does so with a free market approach that allows States—it respects the rights of States as the primary regulators of conduct within their own borders. The first major problem, and my testimony is this is the most important problem, comes from the lack of true incentives, two economic incentives for bondsmen to closely monitor the conduct of the bounty hunters that they hire.
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Bounty hunters can be and often are hired as independent contractors. Any harm they inflict on the public then cannot be imputed to the bondsman. There is no respondeat of superior liability for independent contractors. Bonding agents, therefore, gain the benefit of bounty hunters' broad search and arrest rights but without liability potential. They have no serious impetus to guarantee that the bounty hunters they hire are trained professionals free from a criminal past.
This is a classic market failure. It allows bondsmen to engage in rent seeking, the economic term applied to actors who minimize public welfare by seeking individual gain from improper or illegitimate sources by creating respondeat superior liability between bondsmen and bounty hunters. The bill places accountability with the bondsmen, the lowest cost avoider. The economic term for the actor who can most easily discover and correct market inefficiency.
At the same time, the bill does protect compliant bondsmen. It makes them immune from liability when they hire license bounty hunters so the bill therefore both encourages and rewards responsible behavior. The second major problem is that bounty hunters are critical State actors and yet tend not to be subjected to the same laws that govern similar types of critical actors. As you heard, bounty hunters and bondsmen are crucial to the pre-trial criminal process. It is all throughout the written testimony and you heard a lot about that during the last hearings.
They assure that defendants are released from jail before trial as Mr. Watson says and bounty hunters of course assure that they reappear for their trial dates. This bill simply recognizes that they engage in a symbiotic relationship with the State and makes them subject to the same types of restrictions as other critical State personnel are subject to.
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Finally, bounty hunters currently are not required to notify local law enforcement when they make arrests, cross State lines to make arrests. This bill recognizes the inherently interstate aspect of bounty hunting and seeks to correct that problem. And I should just note as an aside last time you did hear from Police Commissioner Gil Kerokowski from Buffalo, New York, who said the absence of exactly this kind of a notification provision did lead to the death of one of his officers and has also led, of course, to injuries to defendants and third parties as well.
Mr. Chairman, I do thank you again for inviting me here to speak on this important bill and I commend Mr. Hutchinson for his admiral proposal to solve this national problem. Thank you.
[The prepared statement of Mr. Drimmer follows:]
PREPARED STATEMENT OF JONATHAN DRIMMER, CHEVY CHASE, MD
Because of this Bill's substantial similarity to H.R. 3168, the Citizen Protection Act of 1998, I also have included my written testimony regarding that Bill, attachments to that testimony (including 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), and a letter responding to written questions posed by Rep. Bobby Scott at the conclusion of the hearings for H.R. 3168. 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.
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I express my full support for the Bounty Hunter Responsibility Act. Bounty hunters cause recurring, frequent, and often tragic abuses that endanger the lives of American citizens nationwide. Having comprehensively studied the legal landscape regarding bounty hunters for several years, I believe H.R. 2964 employs an admirable free market, federalist solution to the problem.
My previous written testimony for H.R. 3168 (attached hereto) addresses in depth the three main provisions of H.R. 2964, and my letter to Rep. Scott (also attached) answers many related questions naturally arising from its provisions. In brief, the Bill does not unduly hamper the important ability of bonding agents to post bail, or of bounty hunters to seek and arrest fugitives. Rather, the Bill seeks only to create accountability for negligent bondsmen, forcing them to act responsibly in hiring licensed bounty hunters or face potential legal liability when abuses occur.
It does so through a market-based approach that internalizes the external costs derelict bondsmen and bounty hunters currently impose on the American public. In nearly every state, bounty hunters enjoy unusually broad rights of search and arrest. They have the right to break into a suspect's home, conduct searches without obtaining warrants, and use all reasonable force in making arrests, and can carry fugitives over state lines without resorting to official extradition procedures. Despite these extensive powers, in most states, there is little public oversight or regulation of bounty hunters—only 13 states have licensing requirements (as the attached chart shows). In the majority of states, bounty hunters need not be licensed, trained, bonded, or insured, or even pass a background check to perform their hazardous activities.
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In conjunction with this lack of public oversight, little incentive exists for bondsmen to exercise rigorous control over the bounty hunters they hire. Typically, bondsmen hire bounty hunters as independent contractors. The torts of independent contractors, under the law of agency, are not attributable to the employer; there thus is no respondeat superior liability. Bonding agents accordingly receive the benefit of the broad search and arrest rights enjoyed by bounty hunters acting on their behalf, without assuming any of the responsibility for the bounty hunters' conduct. Absent any liability potential, bondsmen have no serious impetus to guarantee that the bounty hunters they retain are trained, licensed (either as bounty hunters or private detectives), and free from a criminal past.
The synergy of bounty hunters' broad rights and lack of sincere public or private oversight is, in my view, the primary cause of the abuses that continue to be inflicted on the American people. These ongoing problems require Congressional action. Congress is without doubt the most appropriate entity to declare whether bounty hunters' police-like activities fall within the scope of existing laws that Congress itself enacted. In addition, as bounty hunters commonly must travel between states in search of bail skips, fugitive search and recapture is an inherently interstate profession—precisely the type of conduct the Constitution's Framers envisioned when they granted Congress plenary power over interstate commerce.
While Congressional action is thus necessary, Section 2(b) of H.R. 2964 seeks to correct the nationwide problem of bounty hunter abuse through an innovative free market approach that is highly deferential to the rights of individual states to serve as the primary regulators of bounty hunter conduct. A more traditional solution might involve detailed requirements that precisely define permitted and proscribed behavior, as exists for other debt collectors under the comprehensive Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (''FDCPA''). Such a traditional approach also might include a comprehensive administrative scheme, with its attendant layers of bureaucracy, such as through a national bounty hunter licensure or registration program.
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Instead, this Bill is premised on a philosophy of basic economics and limited federal intervention. It merely adjusts a market inefficiency by placing responsibility and accountability with bondsmen, the ''lowest cost avoiders,'' a fundamental economics concept used in assigning legal responsibilities to the actor who could most easily discover and inexpensively remediate the presented hazard. By declaring bounty hunters agents of the bondsmen who hire them, the Bill creates respondeat superior liability and the bondsmen's attendant economic incentive to monitor their employees to avoid potential legal liability.(see footnote 1) The Bill thus avoids a conventional and cumbersome legislative approach to a nationwide problem by employing simple market correction theory.
The means utilized by the Bill—declaring an agency relationship between bondsmen and bounty hunters—is in complete accordance with the logic of the Ohio Court of Appeals. In Hayes v. Goldstein, 697 N.E.2d 224, 226 (Ct. App. Ohio 1997), the court rejected a bondsman's attempt to avoid liability by claiming that a bounty hunter was hired as an independent contractor. The court ruled that, ''as a matter of policy, we believe that employers should be required to carefully select and intelligently supervise their agents, or face liability for failing to do so.'' Id. This Bill adopts that prudent policy in eliminating the independent contractor defense for bondsmen, a policy shared by state legislatures in Iowa, as well as in Florida, North Carolina, and South Carolina (which, as the attached chart shows, have abolished free lance bounty hunting).
While this Bill thus attempts to correct a market irregularity, the Bill (unlike H.R. 3168) also rewards responsible bondsmen by immunizing them from liability when the bounty hunters they employ are properly licensed. When a bondsman seeks to ensure that his bounty hunters are trained professionals, providing a modicum of protection to the American public, he can avoid the risk of financial penalty that the Bill otherwise imposes. Accordingly, the Bill intelligently cures an economic inefficiency by forcing bondsmen to monitor the bounty hunters they hire, but protects such bondsmen from suit when they comply with the Bill's terms.
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In so doing, the Bill respects the individual states as the primary regulators of bondsmen and bounty hunters. Section 4 of the Bill allows some guidance to be provided to states interested in enacting regulations, but not mandates. The sole declared conduct requirement, appearing in Section 3, is that bounty hunters must notify local authorities when they cross state lines—thereby engaging in the type of interstate activity that Congress should regulate—to avoid the potential confusion and dangers that have led to the deaths of victims, bounty hunters, and police officers. (Indeed, as Gil Kirlikowske, Commissioner of Police in Buffalo, New York and President of the Police Executive Research Forum, testified in the prior hearings, an unlicensed Maryland bounty hunter who traveled to Buffalo in search of a bail jumper without alerting the local police as to his activities caused the death of one of Kirlikowske's officers.)
Section 2(a) of the Bill defines bondsmen and bounty hunters as subject to 42 U.S.C. §1983, which represents a Congressional determination that specified classes of actors—in addition to those already defined by Congress and the courts—fall within the scope of pre-existing federally enacted laws. That determination is one Congress, and not the individual states, must make.
That §1983 will be applicable to bondsmen and bounty hunters is a highly justified and long overdue declaration. Bondsmen and bounty hunters play quasi-judicial roles as vital participants in the criminal justice system, and exercise police-like rights in forcibly entering defendant's homes, making arrests using necessary force, and temporarily imprisoning defendants until custody can be transferred back to the state. Recognizing bondsmen and bounty hunters as state actors is thus both legally correct and a matter of common sense. See Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir. 1987).(see footnote 2)
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Abiding by the laws governing state actors will be vastly less burdensome for bounty hunters than the federal conduct requirements for other debt collectors under the FDCPA. For bondsmen, so long as they hire licensed bounty hunters, liability for misconduct under §1983 will not accrue to them and this provision in the Bill becomes moot.
Thus, the Bill will guarantee basic protections to the public in those many states where local regulations are absent by encouraging bondsmen only to hire trained bounty hunters; in those states where regulations do exist, the Bill's modest requirements will hardly usurp the states' authority, but will merely correct a market failure and complement the more detailed licensing and behavioral requirements that are the hallmark of a true regulatory scheme. Based on its correction of a prototypical market inefficiency, and its innovative approach to solving an inherently interstate and nationwide problem, I express my complete support for H.R. 2964, and urge its rapid passage into law.
SUMMARY
WHEN MAN HUNTS MAN: THE RIGHTS AND DUTIES OF BOUNTY HUNTERS IN 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.
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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.
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.
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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.
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.
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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.
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.
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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.
LIST OF BOUNTY HUNTER LAWS
A. States outlawing commercial bonding, utilizing public bail systems, or banning bounty hunting
1. Wisconsin
Wis. Stat. §969.12 provides that no surety can be compensated for serving as a surety, effectively eliminating the commercial bond market. See Kahn v. McCormack, 299 N.W.2d 279 (Ct. App. 1980)(upholding constitutionality of statute and stating that purpose of the law is to eliminate the commercial bond industry).
2. Oregon
In Oregon, a defendant only can be released from prison on conditional release, deposit bond, or on his own recognizance (i.e., no surety bonds). Or. Rev. Stat. §135.255, .260, .265. In State v. Epps, 585 P.2d 425 (Or. 1978), the Oregon Supreme court abolished the broad common law rights of bounty hunters and bond agents. The court also applied the Uniform Criminal Extradition Act to bounty hunters seeking to take defendants over state lines, thus requiring bounty hunters to go through official extradition procedures before taking Defendants over state lines.
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3. Illinois
Illinois enacted a statute in 1963 that was designed to eliminate commercial bail bond industry. See Schilb v. Kuebel, 264 N.E.2d 377, 380 (Ill. 1970), aff'd 404 U.S. 357 (1971); Ill. Stat. Ch. 725 §5/110–7, 5/110–8. In addition, a state statute prohibits out-of-state bounty hunters from entering Illinois and forcibly removing unwilling fugitives. The statute provides, ''No bail bondsman from any state may seize or transport unwillingly any person found in this State who is allegedly in violation of a bail bond posted in some other state.'' Ill. Stat. Ch. 725 §5/103–9.
4. Kentucky
Kentucky expressly outlaws the commercial bail bond industry. Ky. Stat. §431.510 (outlawing commercial bail bond industry); see Stephens v. Bonding Assoc. of Kentucky, 538 S.W.2d 580 (Ky 1976) (upholding statute). An out-of-state bond agent seeking to arrest a fugitive who has fled to Kentucky must get a warrant. Ky. Rev. Stat. §440.270.
B. States eliminating free lance bounty hunters, but allowing full time ''runners'' who work for 1 bond agent at a time (3 states)
1. Florida
In Florida, all bail runners must be licensed, and work only for one bond agent (i.e., eliminating free lance bounty hunters), be over 18, a resident of the state, have no criminal record, and pass a certification course, Fla. Stat. §648.37. For fugitives from other states who enter Florida, only persons licensed in Florida or the state where the bail bond was written can make an arrest. Fla. Stat. §648.30.
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2. North Carolina
All bail runners must be licensed. N.C. Gen. Stat. §58–71–40. A runner must be over 18, have no felony convictions, be a resident of the state, and have necessary training and experience., N.C. Gen. Stat. 58–71–50. The runner must take 20 hours of education for a license. N.C. Gen. Stat. §58–71–71. The runner also must take an examination. N.C. Gen. Stat. §58–71–70. Runners only can work for one bonding company (same as Florida). N.C. Gen. Stat. §58–71–65 (1996). Bondsmen and runners cannot forcibly enter the homes of third parties. State v. Mathis, 509 S.E.2d 155 (N.C. 1998).
3. South Carolina
All bail runners are required to be licensed (S.C. Stat 38–53–80), can have no criminal record for the past ten years, must be a resident of the state, be over 18 (S.C. Stat. 38–53–90), must take a 20 hour class and pass an examination (S.C. Stat. 38–53–80) and can only work for one bond agent who will supervise and be responsible for their conduct (S.C. Stat. 38–53–120). All bond agents must supply a list of their runners to the clerk of court in the county where the agents operate. (S.C. Stat. 38–53–120).
C. States Requiring Licensing (10 states)
1. Indiana
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Recovery agents must be licensed. Ind. Code Ann. §27–10–3–1 (1997). To obtain a license, recovery agents must be at least 18 years old, be a citizen of the U.S., be a resident of Indiana for at least 6 months, have no felony convictions for at least 10 years (5 years for misdemeanor), Ind. Code Ann. §27–10–3–5, and they must pass an examination given by the State, Ind. Code Ann. §27–10–3–6. Recovery agents must notify the local sheriff of the locale in which the recovery agent resides, Ind. Code Ann. §27–10–3–17, and bonds agents must give the state a list of recovery agents they employ. Ind. Code Ann. §27–10–3–14. A bond agent and recovery agent cannot forcibly enter the home of a third party. Mishler v. State, 660 N.E.2d 343 (Ind. App.1996).
2. Nevada
All bond agents and bail enforcement agents must be licensed. Nev. Code §697.090, 697.180. To obtain a license, a bail enforcement agent must be at least 21 years old, be a U.S. citizen, have a high school diploma or equivalent, have no felony record, pass a psychological examination, pass a written examination, and pass a drug test. Nev. Code §697.173, 697.200 (written examination), 697.186 (letter from police saying no criminal record). A bail enforcement agent also must take a training class within nine months of being hired to catch fugitives. Nev. Code §697.177. After making an arrest, the bail enforcement agent must the local law enforcement agency of the jurisdiction in which the defendant was apprehended, providing the bail enforcement agent's identity, the identity of the defendant, and where the defendant is being taken to surrender him into custody. Before forcibly entering an inhabited dwelling, a bail enforcement agent must notify the local law enforcement. Nev. Code. §697.325.
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3. Mississippi
Bail enforcement agents must be licensed. To obtain a license, agents must be at least 21 years of age, be a resident of the state at least 1 year, and have no felony record. Miss. Stat. Ann. §83–39–3.
4. South Dakota
A bail runner must be licensed, and have no felony record. S.D.C.L. §58–22–12, 58–22–13 (must submit fingerprints), 58–22–16 (must pass a written examination). Bond agent must notify the state of the runners they employ. S.D.C.L. §58–22–27, 58–22–52. An out-of-state bond agent or runner seeking to arrest a fugitive who flees to South Dakota must notify local law enforcement in the jurisdiction for which he intends to conduct activities, and present evidence of an out of state license. If he has no such license, he cannot conduct search and arrest activities. §58–22–51.
5. Connecticut
Bounty hunters must be licensed, trained (20 hours of study), and pass a background check (no felony record). Police officers are forbidden from being bounty hunters. Bounty hunters must notify the local police before making an arrest, and cannot carry wear clothes or carry badges suggesting they are agents of the state or federal government. C.G.S.A. §29–152e through §29–152l.
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6. Arizona
Bounty hunters must be licensed (Ariz. Rev. Stat. §13–3885), pass a background check (Ariz. Rev. Stat. §20–323), and complete a training class (Ariz. Rev. Stat. §20–3001 through 3005). Bounty hunters only can enter a home with the consent of the occupants present at the time of entry, and cannot wear clothes indicating that the bounty hunter is a state or federal official. Bond agents must notify the state that they are utilizing particular bounty hunters. Once a year, bond agents also must notify the state of all bounty hunters they have used during that year. Out of state bounty hunters seeking to arrest fugitives who flee to Arizona must contract with licensed in state recovery agents. Ariz. Rev. Stat. §13–3885.
7. Utah
Bounty hunters must be licensed (Utah Code Ann. §53–11–107), be 21 years of age, be a citizen or legal resident of United States, complete a state background check, take a training class, and perform minimum time in the field as an apprentice, bond agent, or law enforcement officer (Utah Code Ann. §53–11–108, et. seq.). The local police must be notified before a bounty hunter makes an arrest. (Utah Code Ann. §53–11–122, 123).
8. Iowa
Bounty hunters must be licensed and notify the local police of a defendant's location before making an arrest. Iowa Code §80A.3. A victim can sue a bail bond agent as well as the bounty hunter for misconduct. Iowa Code §80A.16A. A bounty hunter cannot enter the home of or use force against an innocent third party. State v. McFarland, 598 N.W.2d 318 (Iowa Ct. App. 1999).
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9. Louisiana
A law passed July 9, 1999, states that commissioner of insurance is authorized to enact regulations regarding bounty hunters, and shall adopt regulations governing prelicensing and continuing education, out of state bounty hunters searching for fugitives who enter Louisiana, notification requirements for local police, and penalties for non-compliance. Bail enforcement agents are to be subject to the same licensing requirements as bail bondsmen. La. Rev. Stat. 22:1514–17.
10. California
Bail fugitive recovery agents must be 18 years old, have no felony convictions, complete a specified training courses, and notify local law enforcement of their intent to apprehend a bail fugitive no more than 6 hours before doing so. They must have written authorization from the bond agent when making an arrest, and cannot forcibly enter any premises, except pursuant to certain existing provisions of law governing arrest by a private person. Bounty hunters cannot represent themselves as law officers, or wear badges or uniforms that a reasonable person might mistake for a government agency. All bounty hunters must carry with them a certification of completion of required courses and training programs. Out of state bounty hunters must be licensed in their home states, or be licensed bond agents. Private detectives need not obtain a separate bounty hunter license to operate in the state. This law will remain in effect only until January 1, 2005. Cal. Penal Code §1299. In addition, bounty hunter or bond agent who captures defendant in California must go through official extradition procedures to transport him interstate. Cal. Penal Code §847.5 (1995 West); Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547 (9th Cir.1974). After an arrest of a defendant on bail, the surety must deliver him to the court or police within 48 hours of the arrest if it occurs within California; if the arrest occurs out of state, the surety must deliver the defendant within 48 hours of their entering California. Cal. Penal Code §1301.
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D. Other State Laws
1. New Hampshire
Recovery agents must be trained and certified through a program approved by the Professional Bail Agents of the United States, and register with the Secretary of State (who will issue proof of registration). Bail agency must have at least $300,000 in liability insurance for recovery activities, and recovery agents acting as independent contractors must have liability insurance of at least $300,000. Bail agents and recovery agents must inform the chief of police of the relevant municipality when searching for bail jumper. N.H. Stat. §597:7–b.
2. Georgia
Bounty hunter must be at least 25 years old, must be a United States citizen, must obtain a gun permit, and must notify the local police of the intended arrest. Bondsmen must register with the sheriff of the county in which the bondsman is a resident all bail recovery agents that he employs. A bounty hunter must carry identification cards issued by bondsman, which describe the bounty hunter's physical appearance, and contains the bondsman's signature. Bounty hunter cannot wear clothing or carry badges suggesting that he is a public employee. An out-of-state recovery agent seeking to arrest a fugitive in Georgia must be able to prove that he is licensed in his home state, or hire a Georgia bounty hunter if there is no licensing law in his home state. Ga. Code §17–6–56 through 17–6–58.
3. Colorado
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Bond agents must a take class in bail recovery, and a bond agent who wants to hire anyone other than another licensed bond agent to perform recovery work must submit to the state a certificate showing that such person has received training from a bail recovery training program, and submit his fingerprints for a background check (the person cannot have a criminal record). Col. Rev. Stat. §12–7–105.5.
4. Tennessee
A bounty hunter cannot have criminal record, must notify local police of the defendant's location, and present to the police a copy of the warrant, a copy of the bond, and evidence that bounty hunter has been hired by bond agent. Tenn. Code Ann. §40–11–3.
5. Arkansas
Under H.B. 1163, enacted April 15, 1999, only licensed bond agents, private investigators, or law enforcement officers, or people who have 2 years of actual work as a licensed investigator, bond agent, or law enforcement officer can seek and arrest fugitives. Such person must be at least 21 years of age, have no felony record, and must notify the local police of his presence and provide them with the defendant's name, the charges filed against him, and his suspected location.
6. Texas
Tex. Code Crim. P. 17.19 states that a bond agent can obtain a warrant from court before seeking to arrest defendant, and a judicial warrant is required to arrest with force, Tex. Code Crim. Proc Art 17.19 (Vernon 1977); see Austin v. State, 541 S.W.2d 162 (Tex. Cr. App. 1976). The Uniform Criminal Extradition Act has been interpreted to apply to Texas, thus requiring that bounty hunters take defendant before magistrate before transporting him over state lines. See Landry v. A-Able Bonding, Inc., 75 F.2d 200 (5th Cir. 1996).
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7. Oklahoma
An out-of-state bounty hunter or bond agent seeking to arrest a fugitive who enters Oklahoma must be accompanied by a peace officer or a licensed Oklahoma bond agent. Okl. Stat. §1750.14.
| Washington, DC, March 19, 1998. |
Representative ROBERT SCOTT,
House of Representatives, Washington, DC.
Re: Questions Concerning HR 3168: The Citizen Protection Act
DEAR CONGRESSMAN SCOTT: I very much enjoyed testifying before the Subcommittee on the Constitution last week regarding HR 3168. I particularly enjoyed the engaging (and difficult) questions you asked. I have spent several years studying the laws (or lack thereof) regarding bondsmen and bounty hunters, and expended a great deal of time thinking about proposed solutions. But I still greatly appreciate being forced to examine the relevant issues from a new perspective.
I continue to support HR 3168. I believe it is an intelligent, moderate proposal that will help to curb many of the abuses that currently prevail. It also will not unduly hinder individual bondsmen or prevent defendants from access to pretrial release. However, I agree with your suggestion that clarification regarding the terms ''surety on a bail bond'' and ''bounty hunter'' would be helpful.
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Attached are my answers to the remainder of your questions, some of which were unanswered during the hearing itself. If you or any member of your staff would like to discuss these answers, or any other area related to bounty hunters or the proposed legislation, please do not hesitate to call.
Very truly yours,
Attachment
1. What is the significance of ''color of state law''?
a) Is the relationship between the state and its interest in the bail jumper and that of the bondsman and the bounty hunter a ''symbiotic relationship'' such that all three are acting in concert for purposes of liability?
b) If a judgment is entered, who pays?
The ''color of state law'' requirement in HR 3168 simply mandates that bondsmen and bounty hunters abide by similar restrictions that govern other public and private entities performing core law enforcement functions. These include refraining from subjecting the citizenry to unreasonable searches and seizures, excessive force, and coercive interrogations. And these restrictions also include following official extradition procedures when arresting defendants in a state different from the court of origin. In essence, the color of state law provision does not alter the legal powers of bounty hunters, but mandates that bounty hunters do not abuse those unique rights or their position of public trust.
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a) The alliance between bondsmen, bounty hunters, and the state is a classic legal ''symbiotic relationship.'' This relationship is explored in depth in my law review article, When Man Hunts Man: The Rights of Duties in the American Criminal Justice System, which is part of the hearing's written record. As explained there, every relevant factor courts use to determine whether a symbiotic relationship exists between a private party and the state is found in the case of bondsmen and bounty hunters.
Most significantly, bondsmen and bounty hunters are indispensable to state bail systems. Bondsmen largely determine whether a defendant will be released before trial. Indeed, 40 percent of all defendants utilize the services of bail bond agents in the pretrial context. Bounty hunters, in turn, are critical in ensuring that these defendants reappear in court.
In addition, bondsmen, bounty hunters, and the state all profit from their joint relationship. While bondsmen and bounty hunters earn their livings from state bail systems, the state saves substantial expenses associated with housing defendants before trial, and in searching for, arresting, and transporting these defendants back to court. States also benefit from evidence uncovered by bounty hunters during searches and arrests.
Bondsmen and bounty hunters often work closely with the police and the courts. Defendants frequently are referred by court personnel to specific bondsmen, and bondsmen typically ply their trade in and around courthouses. In return, bondsmen help the police by bailing out informants, and provide information to the police and the courts on the locations and movements of specific defendants. Bounty hunters also often trade information on fugitives with the police, and based on their unique expertise, even help the police find and arrest particularly elusive defendants before an initial trial date.
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It is based on these close contacts and joint interests that the United States Court of Appeals for the Fourth Circuit, in Jackson v. Pantazes, 810 F.2d 426 (4th Cir. 1987), held that a bondsman was a state actor. The Court ruled,
[T]he symbiotic relationship between bail bondsmen and the Maryland Criminal Court system suffices to render Pantazes' conduct state action. Bondsmen depend, for their livelihood, upon the judicial use of a bail bond system . . . In return, bondsmen facilitate the pretrial release of accused persons, monitor their whereabouts and return them for trial.
Id. at 430. HR 3168 clarifies that this ruling is the correct analysis of the law, properly describing the unique position bondsmen and their recovery agents hold in the justice system.
b) At present, because bounty hunters often are considered ''independent contractors,'' only they face liability for their misconduct.(see footnote 3) However, where bounty hunters are employees or agents of bondsmen, both the bounty hunter and the bondsman can be held liable for bounty hunter abuses. See Mason v. City of New York, 949 F. Supp. 1068, 1072 (S.D.N.Y. 1996); Coastal Bail Bonds, Inc. v. Cope, 697 So.2d 48 (Ala. Ct. App. 1996).
Under HR 3168, bondsmen and the bounty hunters they hire would be jointly liable for a bounty hunter's actions. However, as explained in the findings of the Congressional Research Service, discussed during the hearings on HR 3168, under well-established civil rights cases, the state would not be face potential liability under the Bill for bounty hunter misdeeds.
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2. Are there other instances where private entities have been made subject to liability for ''deprivation of Federally protected rights''?
The concept of a private entity assuming the cloak of the state, and thus being subjected to liability for deprivations of Federally protected rights, has long existed. As the Supreme Court has stated, ''If an individual is possessed of state authority and purports to act under that authority, his action is state action.'' West v. Atkins, 487 U.S. 42, 56 n.15 (1988); see also Evans v. Newton, 382 U.S. 296, 299 (1966)(''When private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.'').
Over the years, there have been countless examples of private entities being treated as state actors. These include many circumstances involving private parties exercising law enforcement functions. See, e.g., Skinner v. Railway Labor, Executive Association, 489 U.S. 609, 614 (1989) (railroad state actor for Fourth Amendment purposes when, in obeying a federal regulation, it drug tests its employees); Griffin v. Maryland, 378 U.S. 130 (1964)(deputized security guard state actor); Williams v. United States, 341 U.S. 97, 99–100 (1951)(private guards with police-like powers state actors); NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 429–40 (1947)(deputized security guards state actors); Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir.), cert. denied, 503 U.S. 989 (1992) (private prison state actor); United States v. Hoffman, 498 F.2d 879, 881 (7th Cir. 1974) (railroad police with same powers as police are state actors).
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Indeed, as noted above, the United States Court of Appeals for the Fourth Circuit found that a bondsman can be subjected to liability for a deprivation of federally protected rights in Jackson v. Pantazes, 810 F.2d 426 (4th Cir. 1987).
While Congress itself has never expressly declared the conduct of a private entity to be under ''color of state law,'' it has, on numerous occasions, created legal protections for the citizenry against private deprivations of federally protected rights. Examples include the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Freedom of Access to Clinic Entrances Act, the Violence Against Women Act, and similar laws protecting the civil rights of individuals from private abuse.
HR 3168, by safeguarding federal civil rights against abuse by bondsmen and bounty hunters ''possessed of state authority'' and acting ''under that authority,'' West, 487 U.S. at 56 n.15, is in a similar vein to these laws. It simply deploys the short-hand terminology for its basis, the same basis underlying these other exemplary statutes. And as these other statutes make clear, Congress has the legal power to use civil rights legislation to increase the constitutional protections of citizens; however, it could not enact laws that reduce protections below the minimal constitutional standards delineated by the judiciary.
3. How much will this cause bail bond costs to go up?
This will not impact the cost of bonds to defendants. In every state across the nation, laws restrict the maximum a bonding agent can charge a defendant to between 7% and 10% of the total bail amount.
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4. Will this change have a ''chilling effect'' on the willingness of bondsmen to issue bonds and will this disproportionately affect the ability of ''the usual suspects'' (minorities, poor people) to get a bond?
I believe that the answer to both portions of the question are ''no.'' It appears to be conclusively demonstrated by examining the three states that have a joint liability scheme approximating the proposed legislation: South Carolina, Florida, and North Carolina. See S.C. Code §38–53–120; Fla. Stat. 648.37(c); N.C. Gen. Stat. §58–71–65.(see footnote 4) In none of these states are criminal defendants denied access to bail in significantly greater numbers than in 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 approximately 1000 licensed bail agents, a number that continues to grow each year. Indeed, the Department of Insurance reports that they are ''deluged'' with bonding agents. 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 joint and several liability legislation.(see footnote 5) 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 10 new licenses every month.
I think the experiment of these states prove that enacting a joint liability scheme will not significantly diminish the profits available to bonding agents or their desire to write bonds. Nor will it significantly diminish the ability of criminal defendants—most of whom are poor, if not indigent—to make bail.
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5. Would claims of ''excessive force'' or claims for negligent injuries or property damages, etc., be included under the liability provision of the bill even for the bail violator?
The Bill is not limited to innocent victims, but protects the civil rights of citizens accused. However, the Bill only governs unreasonable conduct by bounty hunters. That standard is high, and will be met in only egregious cases of abuse—which unfortunately occur with some degree of regularity. But bounty hunters have wide authority to use necessary and reasonable force in making arrests of defendants, similar to a police officer. See Bennett v. State, 311 S.E.2d 513, 515 (Ga. Ct. App. 1983) (allowing bondsmen powers of arrest equivalent to those of law enforcement officers). They also can break into a defendant's home.(see footnote 6) Only if they substantially exceed the scope of their rights might liability accrue under this legislation.
Nonetheless, societal norms and basic due process principles dictate that even criminal defendants have the right to be free from unreasonable, excessive force. The law recognizes that bail violators, who still are presumed innocent of the underlying charges levied against them, should not be subject to summary torture or even death at the hands of reckless bounty hunters.
6. Could the definition of ''bounty hunter'' be construed to include someone who is not in the business, but who makes a ''citizen's arrest'' to receive a reward in a state that allows ''citizen's arrests''? Or someone with no relation with the accused who reviews the records of fugitives and just goes out on his own and apprehends someone?
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While a strict interpretation of the term ''bounty hunter'' as now defined in HR 3168 might include individuals acting to receive a reward by a state,(see footnote 7) as a practical matter, it is unlikely that a court would apply such an interpretation, given the clear intent of the Bill to regulate individuals hired by bail bondsmen. If the Committee wishes to fully exclude reward seekers from the Bill, I recommend clarifying the definition of ''bounty hunter'' to include only a person who seeks, ''for compensation or to receive a reward by a bail bondsman or surety, to obtain or exercise custody over another person for purposes of criminal judicial proceedings.''
The definition of ''bounty hunter'' would not include a good samaritan who apprehends a fugitive, because they would not be acting with the intent to obtain a reward or other financial remuneration.
However, if a bounty hunter reviews the records of fugitives, captures one, and then informs the bondsman, hoping to receive a reward, the bounty hunter falls within the definition of the Bill. Because the bounty hunter is seeking to obtain custody of the defendant for purposes of financial compensation, the Bill's first provision applies and the bounty hunter is acting under ''color of state law.''
7. Could the phrase ''surety on a bail bond'' be interpreted to include ''Mamma'' who puts up her home on a property bond for the accused?
I believe the answer is ''no.'' By its current terms, the Bill only applies to ''bail'' or ''surety'' bonds. The Bill does not refer anywhere to any other type of bond, such as property bonds, full cash bonds, or deposit bonds that defendants utilize to obtain pretrial release. Unlike surety bonds, these and other types bonds are paid directly to the court and do not require the services of a bonding agent. Thus, the Bill's restricting coverage to surety or bail bonds renders ''Mamma's'' house safe. As a practical matter, in my years of studying this field, I have never seen a case where a friend or relative who posts collateral for a defendant's release actually hires a bounty hunter to retrieve an itinerant defendant.
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It might be prudent, however, as you have wisely suggested, for the Committee to include in the Bill a definition of ''surety on a bail bond.'' This definition should indicate that the Bill covers only companies or individuals licensed by a state agency to write surety or bail bonds, thereby clearly excluding ''Mamma'' and any other friend or relative of the defendant.
8. Does the language ''whether acting as an independent contractor'' affect the definition of ''independent contractor'' for purposes of the effort by the IRS to define many of today's ''independent contractors'' as employees or agents for income tax withholding, social security withholding and other employee/employer responsibilities?
Not directly. The language of the Bill indicates that the agency relationship between the bondsmen and bounty hunter is only for a limited purpose, namely ''for purposes of [civil or criminal] liability'' based on a ''deprivation of Federally protected rights'' under 42 U.S.C. §1983, 18 U.S.C. §242, and similar statutes. Congress merely has declared that, with regard to civil rights laws, whether a bounty hunter otherwise falls within the legal category of ''independent contractor,'' he and the bondsmen will be treated as if they have entered an agency relationship. The Bill does not create an agency relationship between bondsman and bounty hunters for any other provisions of federal law. See, e.g., Division of Employment Security v. Hatfield, 831 S.W.2d 216 (Mo. Ct. App. 1992) (bounty hunters are independent contractors for purposes of filing 1099 tax forms, and not W–2 forms).
The most likely outcome of the Bill in this regard will be consistent with the efforts of the IRS. By creating a financial incentive for bondsmen to closely monitor their bounty hunters, bondsmen will most likely employ the bounty hunters they trust on at least a semi-permanent basis. This will create a standard employment relationship, and thus help to eliminate the present independent contractor status for tax and employee benefits purposes.
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If you remain concerned that the Bill will thwart the efforts of the IRS, I recommend making clear in the legislative history that the Bill is limited to civil rights laws, and should not otherwise be construed to implicate tax or employee benefits laws.
9. Will there be any significant cost impacts for local law enforcement authorities in responding to the required reports by bounty hunters of their intent to arrest a bail jumper?
a) What are the law enforcement officials supposed to do with, and in response to, these reports?
b) As the local sheriff or police chief, or prosecutor, knowing how some of these situations can go (and have gone) ''sour,'' are you likely to feel comfortable in acquiescing in the report by the bounty hunter that he is going to an apartment in some roughneck area to take someone into custody?
i) And if it does go sour with the bail jumper or others being shot or killed, how are you going to feel answering the call and the questions from the press that you acquiesced in the bounty hunter's intentions?
ii) And does your acquiescence or tacit approval of the bounty hunter's expressed intent make you directly and politically (for sure) liable for the bounty hunter's action?
I think this series of questions may misunderstand the nature and terms of the notification provision. Section 2(b) of the Bill does not contain an independent federal notice provision, obligating bounty hunters to converse with local police in the absence of any state law or local ordinance containing such a requirement. The provision only codifies what is already the law of the states—it requires bounty hunters or bondsmen who seek to make an arrest in a foreign jurisdiction (i.e., a State other than the State where bail is granted), ''before commencing activities in that [foreign] State, to inform the local law enforcement agency of such information pertaining to the surety or bounty hunter as is required under the law of that State.''
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This provision sensitively recognizes the inherently interstate nature of fugitive recapture, but also makes clear that it is not preempting any state attempt to regulate local or foreign bounty hunters who operate within a state's jurisdiction. It intentionally avoids creating a federal mandate in the individual states regarding police notification.
The answers to your more specific inquiries contained in question nine will be determined on a state-by-state, case-by-case basis, depending on the laws and practices of the individual locale at issue.
10. Should bounty hunters be required to obtain arrest warrants?
As a practical matter, bounty hunters and bondsmen possess bail contracts, which fulfill many of the same functions as an arrest warrant in guaranteeing that bounty huners have authority to capture defendants. Nonetheless, a bounty hunter's obtaining an official document from the state to show a defendant that, in fact, he possesses state sanctioned authority to make an arrest would further help to prevent resistance by a defendant otherwise believing he was being kidnapped by an armed stranger. Such a requirement thus would, potentially, prevent injuries to innocent parties, defendants, and bounty hunters alike.
HR 3168 does not itself create such a requirement. Although the Bill would force bounty hunters to obey the standards of the local police, few rules of federal jurisprudence are more clear or well-established than the principle that regardless of the means by which a defendant is captured, he is subject to prosecution. As the Supreme Court has made clear, a defendant ''is not himself a suppressible 'fruit' '' of an improper search. United States v. Crews, 445 U.S. 463, 473 (1980); see United States v. Alvarez-Machain, 504 U.S. 655 (1992); Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (although warrant for arrest was defective, Court adhered to ''the established rule that illegal arrest or detention does not void a subsequent conviction''); Frisbie v. Collins, 342 U.S. 519, 522 (1952) (''This Court has never departed from the rule . . . that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.''); Ker v. Illinois, 119 U.S. 436, 444 (1886).
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Thus, if a police officer fails to obtain an arrest or search warrant before entering a defendant's home to make an arrest, the defendant still is subject to prosecution.(see footnote 8) The same rule applies, and would continue to apply under the Bill as currently drafted, for bounty hunters.
However, individual states would remain free to enact any warrant requirements they deemed appropriate to protect their citizenry. Bounty hunters who cross state lines to make arrests would be compelled to know and obey such laws, just as they must obey any local notice provision under the Bill. The Committee might consider making this point explicit in either the legislative history, or even in the Bill's terms. Amending the Bill itself would merely require adding at the end of paragraph 2(b) a sentence that states, ''The bounty hunter or surety must obey any and all State laws then in existence while conducting a search or making an arrest in such State.''
11. Can individuals with criminal records be bounty hunters?
Under the present system, the answer is ''yes'' in nearly every jurisdiction. HR 3168, as currently drafted, would not alter that answer. It would remain within the province of the various states to determine the precise rules and regulations governing the qualifications of bounty hunters.
Under the Bill, and absent such state regulations, individual bondsmen, who would face liability for the bounty hunter's misconduct, would have discretion to determine whether to use a bounty hunter with a criminal past. The Bill ensures that bondsmen have an economic incentive to guarantee that, at a minimum, if a hired bounty hunter has a criminal record, the crime would be very old (i.e., at least 10 years) or of a minor nature (i.e., littering). Otherwise, the bondsmen will increase their risk of liability based on the greater likelihood of misconduct by their bounty hunter agents.
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12. Is illegally obtained evidence from bounty hunters admissible?
Under the present law, yes. Because bounty hunters usually are deemed purely ''private actors,'' a court is entitled to admit coerced confessions and any evidence that, if obtained by a state actor, would not be admissible. See United States v. Rose, 731 F.2d 1337, 1344–45 (8th Cir.), cert. denied, 469 U.S. 931 (1984) (Fourth and Fifth Amendments do not apply, and no Miranda requirement, and confession and evidence admissible against defendant); United States v. Rhodes, 713 F.2d 463, 467 (9th Cir. 1983), cert. denied, 464 U.S. 1012 (1983), 465 U.S. 1038 (1984) (no Fourth Amendment requirement, despite cooperation between bounty hunter and police); People v. Houle, 91 Cal. Rptr. 974, 975 (Cal. Ct. App. 1970)(evidence collected by bondsman admissible, even if it would have been an illegal search and seizure if conducted by police); State v. Perry, 274 S.E.2d 261, 262 (N.C. Ct. App.).
HR 3168 would constrain the conduct of bounty hunters to essentially the same Fourth and Fifth Amendment standards that apply to law enforcement officials performing the same, core police functions. In so doing, it would render inadmissible most evidence seized by a bounty hunter which would be illegal if gathered by a police officer. The Bill does, however, recognize several important distinctions between the police and bounty hunters.
Under the Bill as currently drafted, bounty hunters would not be required as a matter of federal law to obtain search warrants from state and local authorities. The bail contract is their warrant.
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By the same token, bounty hunters are not evidence gatherers for the police. While they may search for evidence of a fugitive's location, they have no need to search for proof of criminal wrongdoing. Their job is limited to retrieving a bail skipper and returning him to the court of jurisdiction. Accordingly, when they undertake warrantless searches after entering a private residence by virtue of their broad powers, any evidence they seize (outside of evidence on the fugitive's person or in plain view) would be rendered inadmissible.
Similarly, bounty hunters have no reason, in their function of catching bail skippers, to conduct any interrogations—much less coercive interrogations—of citizens accused. Yet no valid reason exists why voluntary confessions by fugitives should not be admitted in court. The best means of assuring that a suspect's confession truly is voluntary after being arrested by a bounty hunter is to require the bounty hunter to offer a modified form of the Miranda warning that the police must offer a suspect of custody.
Such a requirement is an easy to apply, bright-line rule that bounty hunters should have little trouble following. It already is mandated for other types of debt collectors. Under Federal Debt Collection Procedures Act (''FDCPA''), 15 U.S.C. 1692–1692o, debt collectors must offer a ''mini-Miranda'' warning when confronting a debtor. This warning 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).
Enforcing a similar requirement for bounty hunters, who themselves are seeking to collect debts owed by defendants to bondsmen, would not be taxing. Before capturing a suspect, the bounty hunter simply would warn the defendant that he is under arrest for skipping bail, and that any information told by the suspect to the bounty hunter can be admitted in court. A failure to administer such warnings would render any statement by the suspect inadmissible, under the same rules currently governing the police. Such rules would help ensure against abuse by bounty hunters in their unique roles and position of public trust.
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Of course, the individual states have the authority to add supplemental protections for their citizens beyond those contained within HR 3168. Accordingly, states could, if they chose, require bounty hunters to obtain warrants, and exclude from trial any and all incriminating evidence found by a bounty hunter if the bounty hunter failed to acquire such a warrant. States could also exclude from trial any statements made by defendants to bounty hunters. If the Committee felt the need to do so, it could clearly state within the Bill's legislative history that the Bill is not infringing in any regard on the power of the states to require warrants or other individual safeguards to guarantee against abuses by bounty hunters.
Mr. CANADY. Thank you, Mr. Drimmer. Mr. Moore.
STATEMENT OF ROGER MOORE, ATTORNEY AT LAW, ROGER MOORE, P.C.
Mr. MOORE. Thank you, Mr. Chairman, Mr. Watt,
Mr. Hutchinson. I appreciate the opportunity to address the subcommittee on this issue. I bring to the table here sort of a peculiar background in having for the last 12 years extensive litigation in civil rights claims, particularly in 1983 claims while at the same time another area of my practice representing bail bondsmen in virtually every aspect of their business. I am very familiar with their business and how it is conducted as well as the current state of the law.
As I indicated in my written remarks, my major problem with this bill is the radical expansion of liability under 42 U.S.C. section 1983 that this bill works and the singling out of this industry and only this industry for that radical expansion of liability. It does so in two ways. First, by defining a priority that any bondsman or surety or agent of the surety is acting under color of State law and secondly by imposing a respondeat superior liability in this area.
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Approximately 130 years of litigation of 1983 claims and repeated threats to the Supreme Court have a well-defined body of law under current 1983 jurisprudence that does not permit either of those approaches to liability. There is no a priori under color of State law with respect to any private industry that might be sued under 1983 nor is there any respondeat superior liability permitted.
Now if this were an area where injured parties were simply without remedy but for action by the Congress, I might well be sympathetic to this kind of approach, but it is clear that we are not in that kind of area. In the list of injured parties, for example, the list that Mr. Hutchinson presented today some 70 or so cases of abuse. It is absolutely clear to me that virtually every one of those cases could be prosecuted under the criminal law of that State. And it is difficult for me to understand why there could not be liability imposed under an existing tort law in every one of those States.
And in fact in some of those examples there were prosecutions and convictions. And in fact in the case of one of the three witnesses present here today, there was both a criminal prosecution and a civil finding of liability on the State tort claim. So this isn't a situation where there is no remedy. What we have, however, is a situation where this bill would impose widely expanded Federal liability in this area, and that is the major problem that we have.
I can give you examples from Texas now. Texas law for some 25 years has not even permitted bounty hunters to operate within the State and for more than 25 years bounty hunters who have violated that situation have, in fact, been prosecuted and convicted and have had civil liability imposed upon them. Just last session a bill was adopted that we supported that requires only private investigators licensed by the State to execute warrants on bail skips other than, of course, a police officer.
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And there are lots of restrictions in that law, even about how they can act under those circumstances. Many, many other States are considering similar bills to greatly tighten the situation so that we do not have unregulated bounty hunters out there. If a bounty hunter in one of those States were to act in a way that was contrary to State law, for example, in Texas it is a felony. It is a State jail felony for someone to violate the provisions of that State law and, of course, civil liability can also flow from that.
Moreover, under current law claimants can, in fact, recover under section 1983 under some facts, under some circumstances, and many of the situations described in that list that Mr. Hutchinson presented appear to fall within the category of cases where they could have brought 1983 claims under the present stated law. For example, if a bounty hunter has a warrant and seeks out the assistance of local law enforcement and works closely with those local law enforcement people and violates the rights of someone during that arrest cases have held that that actor is acting under color of State law because they have gotten so closely intertwined with those State actors, those other genuine governmental actors, and therefore, a 1983 claim can be brought under those circumstances.
So, again, this is not a situation where plaintiffs are wholly without remedy under either State law or under Federal law, but the wholesale expansion of liability for the industry as a whole. And it singles out only this industry for that sort of wholesale expansion. So for those reasons I would suggest that the bill ought to be opposed.
[The prepared statement of Mr. Moore follows:]
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PREPARED STATEMENT OF ROGER MOORE, ATTORNEY AT LAW, ROGER MOORE, P.C.
Mr. Chairman and members of the Subcommittee,
My name is Roger Moore. I am a private attorney in Austin, Texas, and I appear before the Subcommittee today in opposition to the passage of H.R. 2964. I have attached to these remarks a copy of my curriculum vitae. During the past two years neither I nor any entity I represent at this hearing has been the recipient of any federal grant, contract or subcontract.
Since 1988 a major part of my law practice has been litigation arising under state and federal civil rights statutes, including litigation under 42 U.S.C. §1983. My opposition to H.R. 2964 primarily concerns what I view as its unwarranted expansion of that statute and its singling out of one private industry for that expansion.
In order to understand the nature of the changes that H.R. 2964 proposes to make to 42 U.S.C. §1983, 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 rights. Rather, it 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 9)
Sec. 1983, however, is not a remedy that is available whenever a person's federally protected rights have been violated. Court 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 at the time that he violated the plaintiff's federally protected right. 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, but only for a single private industry.
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.
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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 actor 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.
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).
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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.
It must also be emphasized that the plaintiff in a §1983 action has the burden of proof on this issue. Because the requirement that the defendant was acting ''under color of state law'' is an element of the cause of action, the plaintiff has the burden to plead and prove this element by a preponderance of the evidence, and when he fails to do so the defendant is entitled to judgment in his favor.
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The proposed legislation would abandon this well-established fact specific, 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. In other words, the bill would entirely remove from the plaintiff any burden to show that a private bondsman was so clothed with the authority of the state that he should be treated as if he were an instrumentality of the state.
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, and that the official policy was the actual moving force for the wrongful conduct. 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 in 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 at all in the wrongful 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 LIABILITY
As I mentioned at the outset, §1983 was originally 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 and the bail bondsmen who hire them. 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, as I discussed above, under present law and under appropriate facts, a person wronged by a bounty hunter can already bring a claim under §1983.
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There also is no justification for treating the bail bond industry differently than any other private industry with respect to claims brought under §1983. A brief look at the annotation to 42 U.S.C. §1983 reveals the wide variety of private actor defendants who have been sued under that statute. These private actor defendants have included accountants, attorneys, bank officials, cemetery owners, child care institutions, credit reporting services, detectives, engineers, hotel owners, insurers, land developers, landlords, nurses, physicians, radio station owners, restaurant owners, store owners, towing service owners and warehouse owners. In some of the cases the defendants were found to have been acting under color of state law, and in others they were not. However, in every one of the cases, the courts analyzed the specific facts of the case to make that determination. Not one of these professions and commercial enterprises have been subjected to an a priori rule that deems them to be state actors regardless of what the facts might show.
In summary, H.R. 2964 abandons well-established jurisprudence under 42 U.S.C. §1983 in order to significantly expand potential liability for a single private industry. It does so without any justification. For this reason, I urge the subcommittee to vote in opposition to the bill.
Thank you for your consideration.
Mr. CANADY. Thank you, Mr. Moore. Professor Nahmod.
STATEMENT OF SHELDON NAHMOD, PROFESSOR OF LAW, CHICAGO-KENT LAW SCHOOL
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Mr. NAHMOD. Mr. Chairman, members of the subcommittee, I am Sheldon Nahmod and I want to thank you for inviting me here to speak with you. I will say a few things in general about section 1983 and then talk specifically about those aspects of section 1983 that the act proposes to amend. Section 1983 is a 130-year-old Federal civil rights statute enacted in 1871, which is designed to enforce the 14th amendment. It provides a damages remedy against State and local government officials as well as local governments themselves whenever the 14th amendment rights of citizens and others are violated.
I want to emphasize that States are not suable for damages under section 1983. I also want to emphasize that section 1983 is enforced by the Federal judiciary because it is in fact enforcing the 14th amendment through section 1983. I want to distinguish between two aspects of section 1983, each of which is important for purposes of looking at and assessing the act. First, I want to point out that section 1983 involves constitutional issues because by definition it involves enforcement of the 14th amendment. That is constitutional. It also has implicated in it certain statutory issues which relate specifically to respondeat superior liability about which more in a moment.
Section 1983 on its face refers to color of law. The act proposes to amend section 1983 to include sureties, their agents and bounty hunters but what is important to remember is that amending color of law standing alone does not take us very far because what we really need to be concerned about is the 14th amendment and the 14th amendment has a State action requirement.
Most of us here know that the 14th amendment doesn't apply to private conduct. It only applies to State and local government conduct. So when you have private people, bounty hunters, sureties and the like who may be sued under section 1983 a threshold question always is whether they are State actors, and if they are State actors does their conduct automatically become conduct under color of law? There are several tests for State action, which are set out in my prepared statement but two of them come to mind particularly in connection with sureties, perhaps their agents and specifically bounty hunters, one is the symbiotic relationship test, where private entities, private parties and governments are so intertwined financially and otherwise so interdependent that you cannot tell where one ends and the other begins.
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The other State action test is one in which the government delegates what would ordinarily be considered a governmental function to the private sector. I think either or both of those tests would cover most situations involving bounty hunters, sureties and the like. However, Congress probably cannot declare definitively that certain kinds of conduct are State action. That would ultimately be the role of the Federal judiciary in each and every section 1983 case.
Nevertheless, a congressional declaration to that effect, as the act proposes, that bounty hunters, sureties and their agents are in fact acting under color of law would it seems to me, have a real impact on the way in which the Federal judiciary would approach the question of State action and color of law.
The second general issue, has technical nature that is actually easier to deal with. Under section 1983 there is no respondeat superior liability. Supervisors are not liable under section 1983 for the unconstitutional conduct of their subordinates. Local governments are not liable under section 1983 for the unconstitutional conduct of their officials or employees. That is the current law, which is based upon Supreme Court interpretations of the language of section 1983. But what I want to emphasize is that, unlike State action and color of law, this is statutory in nature and therefore Congress if it wishes—this is what the act proposes to do—can impose respondeat superior liability without any constitutional problem whatever on sureties, their agents and on bounty hunters (assuming there is a State action). So the difference between the constitutional State action issue and the statutory respondeat superior issue is very significant. With respect to respondeat superior, what the act does is provide certain economic and other incentives for sureties and the like to monitor their employees, their agents and bounty hunters.
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I want to point out one other item or two very briefly and then I will conclude. First of all, the Supreme Court has told us that when private persons are sued successfully under section 1983, and that is what we are proposing with respect to this act, they have a kind of affirmative defense of good faith and probable cause.
The act does not say anything about that, but probably as a matter of fairness it is appropriate to say that bounty hunters, sureties and the like who end up acting in good faith and with probable cause for their conduct should be protected from damages liability.
My last point is much more minor but it relates to the attorney's fees provision here. I am far from an expert on attorney's fees but I notice that there is a reference to having plaintiffs who file frivolous lawsuits pay attorney's fees to the defendants and that is entirely appropriate. That is, in fact, consistent with the Civil Rights Attorney's Fees Awards Act of 1976.
But I have a problem with the bad faith provision. If the bad faith provision is solely subjective, that gives rise to the possibility of relitigating a case, when in fact the lawsuit itself was not objectively frivolous. And with that, I thank you again.
[The prepared statement of Mr. Nahmod follows:]
PREPARED STATEMENT OF SHELDON NAHMOD, PROFESSOR OF LAW, CHICAGO-KENT LAW SCHOOL
Good afternoon. My name is Sheldon Nahmod and I am Distinguished Professor of Law at Chicago-Kent College of Law, Illinois Institute of Technology. I write and teach extensively in the areas of civil rights and constitutional law and am the author of a leading and much-cited two-volume treatise on section 1983, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 1997) (''CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION''), and of many law review articles. I lecture regularly on section 1983 to plaintiffs' and defense lawyers across the county as well as to federal judges under the auspices of the Federal Judicial Center, the educational arm of the federal judiciary. In addition, I frequently consult with lawyers and with state and local governments regarding section 1983.
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What I would like to do is make a few introductory remarks about the purposes and present scope of section 1983, and then move directly into an assessment of several aspects of the Bounty Hunter Responsibility Act of 1999 (''Act'').
SOME FUNDAMENTALS OF SECTION 1983
Section 1983, enacted by the 42nd Congress in 1871 pursuant to its powers under section 5 of the Fourteenth Amendment, creates a Fourteenth Amendment damages action against state and local government officials, as well as local governments, who violate the Fourteenth Amendment rights of citizens and others. The statute does not cover states as such because they are not ''persons'' under Will v. Michigan Dept. of Police, 491 U.S. 58 (1989). Section 1983 is expressly intended to enforce the Fourteenth Amendment by compensating for constitutional harm caused and thereby deterring unconstitutional conduct. Compensatory and punitive damages are available against individuals successfully sued under section 1983, while only compensatory damages are available against local governments. State and local legislators, judges and prosecutors are protected from damages liability by absolute immunity, while all other government officials are protected by qualified immunity only. As I will discuss briefly later, private parties who are successfully sued for damages under section 1983 are not protected by either kind of immunity.
For the purposes of evaluating the Act, two things are worth noting. First, inasmuch as section 1983 is intended to enforce the Fourteenth Amendment, and the Fourteenth Amendment has a state action requirement (that is, the Fourteenth Amendment does not apply to purely private conduct), section 1983 damages actions are available only where the challenged conduct of individual defendants constitutes state action. Once the state action requirement is satisfied, though, section 1983's statutory color of law requirement is also satisfied. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).
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Second, the Supreme Court's current interpretation of section 1983 makes abundantly clear that respondeat superior liability does not apply under section 1983 either with regard to to local governments or supervisors. Monell v. Dept. of Social Services, 436 U.S. 658 (1978). What is currently required for supervisory liability is that the supervisor have acted personally in an unconstitutional manner or with deliberate indifference with respect to the unconstitutional conduct of his or her subordinates. See CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION sec. 3:90. And what is currently required for local government liability is that the unconstitutional conduct have been engaged in pursuant to an official policy or custom of the local government. This includes liability for a local government's deliberately indifferent failure to train. City of Canton v. Harris, 489 U.S. 378 (1989). See generally CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION ch. 6.
THE ACT: STATE ACTION AND COLOR OF LAW
The Act, which amends section 1983, provides in relevant part that a surety on a bail bond, an agent of such a surety or any bounty hunter ''seeking to obtain or exercise custody over a person admitted to bail under the laws of a State is acting under color of a statute, ordinance, regulation, custom, or usage of that State.''
The obvious purpose of this part of the Act is to subject sureties, their agents and bounty hunters to the constraints of section 1983 by characterizing their conduct as color of law. However, even though color of law is statutory in nature and thus theoretically amendable by Congress, what really matters is that the underlying state action requirement is constitutional in nature and thus not amendable by Congress except insofar as Congress is acting within its powers under section 5 of the Fourteenth Amendment. It is seriously questionable whether Congress can expand the scope of section 1983's color of law requirement to include purely private conduct that is not covered by the Fourteenth Amendment's state action requirement. City of Boerne v. Flores, 117 S. Ct. 2157 (1997). In my view, what this means is that those whom Congress seeks to cover in the Act—sureties, agents and bounty hunters—can only be held liable under section 1983 if their conduct is state action, a determination that must be made judicially on a case by case basis. However, a Congressional declaration that such conduct is under color of law might assist courts in making that determination.
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There are four somewhat technical tests for determining when nominally private conduct can be considered state action and thus covered by the Fourteenth Amendment and section 1983. See generally CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION ch. 2. The first test, symbiotic relationship, is that category of cases in which government and the private actor are so closely related and interdependent that it is difficult to ascertain where the government stops and the private conduct begins. The leading case is Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Indeed, this test was one of those used by the Fourth Circuit in Jackson v. Pantazes, 810 F.2d 426 (1987), to find that the challenged conduct of the bounty hunter sued there was state action. The Fourth Circuit relied on the symbiotic relationship between bail bondsmen and the Maryland criminal court system. Although this approach was rejected by the Eighth Circuit in Dean v. Olibas, 129 F.3d 1001 (8th Cir. 1997), the argument that sureties, their agents and bounty hunters are interdependent with the state both financially and with regard to the operation of the criminal justice system is, in my view, a powerful one.
The second test, nexus, under which the question is whether the government was significantly involved in the nominally private conduct. Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). The easiest case in which to find a nexus is where the government compels the challenged conduct. However, it is not enough under this test that government simply permits the challenged conduct. Flagg Bros. v. Brooks, 436 U.S. 149 (1978). Since sureties, their agents and bounty hunters are ordinarily not compelled by the state to seek to obtain or exercise custody, it is not likely that their allegedly unconstitutional conduct would constitute state action under the nexus test. Compare Landry v. A-Able Bonding, Inc., 75 F.3d 200 (5th Cir. 1996)(the mere possession by a bail bondsman of an arrest warrant, without his using it to arrest the plaintiff and without the participation of law enforcement authorities, not state action) and Ouzts v. Md. National Insurance Co., 505 F.2d 547 (9th Cir. 1974)(citizen's arrest by bail bondsman not state action).
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The third test is the government function test, with the classic case being Marsh v. Alabama, 326 U.S. 501 (1946), the ''company town'' case. Under this test, where government delegates a government function to a private party, the private party's conduct in exercising that function is considered state action. This test was found by the Fourth Circuit in Jackson v Pantezes to be satisfied because the bounty hunter there ''was exercising powers conferred on him by state law'' which included the right to arrest and to enter private property in order to effect the arrest. Although the Supreme Court has narrowly construed this test and applied it only in circumstances where the delegated government function is both a traditional and exclusive government function, see Rendell-Baker v. Kohn, 457 U.S. 830 (1982), it is my view that this test furnishes the soundest basis for finding the challenged conduct of sureties, their agents and bounty hunters to be state action.
Finally, the fourth test, closely related to nexus, covers those situations in which the private actor acts jointly, conspiratorially or otherwise, with a government official. See Adickes v. Kress, 398 U.S. 144 (1970)(private restaurant and police) and Dennis v. Sparks, 449 U.S. 24 (1980). Since it is often the case that bounty hunters have the cooperation of government law enforcement officers, as was the case in the Fourth Circuit's Jackson v. Pantazes case, state action can sometimes be found on this basis.
Because the Supreme Court has declared that ''the under color of state law requirement does not add anything not already included within the state action requirement of the Fourteenth Amendment,'' Lugar, 457 U.S. at 935 n.18, the Act must be understood as reflecting Congressional intent to have section 1983 cover sureties, their agents and bounty hunters only insofar as the Fourteenth Amendment does so. Although the symbiotic relationship test is helpful, the firmest grounding for such a general determination is probably the government function test for state action because sureties, their agents and bounty hunters are delegated police powers. Of course, in individual cases it will also be helpful for plaintiffs to show that a surety, agent or bounty hunter has received assistance from law enforcement officials.
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THE ACT: BASIS OF LIABILITY AND RESPONDEAT SUPERIOR
In contrast to the state action issue which is a matter of Fourteenth Amendment law, the basis of liability under section 1983 is purely an issue of statutory interpretation and can be changed by Congress if it wishes to do so. Along these lines, the Act not only renders liable in damages a surety or bounty hunter who personally acts against a citizen or another in an allegedly unconstitutional manner. It also appears to render a surety liable in damages for the allegedly unconstitutional conduct of its agent through respondeat superior.
As noted earlier, this is currently not the law under section 1983: respondeat superior liability is not available. The Act changes that in part and allows respondeat superior liability in connection with the unconstitutional conduct of agents of sureties, but not that of other potential section 1983 defendants such as local governments and supervisors. Such a change is obviously intended to encourage sureties to exercise greater control over their agents, including bounty hunters, in connection with Fourteenth Amendment compliance by providing a financial incentive to do so.
AN OBSERVATION ABOUT DEFENSES
Under current law, private section 1983 defendants acting under color of law are not entitled either to absolute immunity or qualified immunity protection, both of which are limited to government officials. However, the Supreme Court has indicated that they may be entitled to an affirmative defense of good faith and probable cause. See Wyatt v. Cole, 504 U.S. 158 (1992) and 994 F.2d 1113 (5th Cir. 1993)(on remand from Supreme Court). Thus, even if a surety, agent or bounty hunter is sued for damages under 1983 and a constitutional violation made out, it is still possible that the defendant could avoid damages liability on this basis, which does not seem unfair.
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Mr. CANADY. Thank you, Professor. Representative Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman. Let me start with Mr. Moore. You outlined the scenario where section 1983 claims can presently be brought if a bounty hunter is working closely with law enforcement, which would trigger the color of State law. Is that a correct summary?
Mr. MOORE. Correct.
Mr. HUTCHINSON. Now I guess my question to you is you don't have any problem with that, do you?
Mr. MOORE. No. That is the current state of the law.
Mr. HUTCHINSON. Why should some bounty hunter be subject to 1983 action if they are working closely with the law and the police when another bounty hunter does not work closely with the police and is not subject to 1983 action?
Mr. MOORE. Because that is the state of the law with respect——
Mr. HUTCHINSON. I understand that is the state of the law.
Mr. MOORE [continuing]. With respect to every private industry. It is not singled out for bounty hunters. If, for example, a landlord——
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Mr. HUTCHINSON. I understand, but the question is does that make sense? Under this scenario, the police would never want to work with a bounty hunter and a bounty hunter would never want to work with the police if they are going to get sued under section 1983 so it is a disincentive under the present law for anyone to work with the police and it is an imbalance because you are telling folks if you work with the police you are going to get sued under 1983. I think it is a disincentive. Would you agree with that, Mr. Moore?
Mr. MOORE. I would not, based upon my experience with the industry. In fact, my bail bond clients would much prefer not to have to go out and make an arrest and in fact notify the local law enforcement as to where those people are and have the local enforcement people make that arrest.
Mr. HUTCHINSON. Mr. Drimmer, do you want to comment on that?
Mr. DRIMMER. Yes. I am also a little bit confused. On the one hand it is in opposition to section 1983 by Mr. Moore and others and at the same time then we have testimony that it is their preference to actually utilize the police to make arrests and I think it is absolutely fair statement that most responsible bounty hunters would prefer to have police backup, that they do want the police there when they make an arrest. I think any responsible bounty hunter would say that but I do think there is something of an inconsistent position to say we shouldn't have section 1983 applied globally. At the same time we should have it applied only to responsible bounty hunters.
Mr. HUTCHINSON. Mr. Drimmer, you have done a lot of research in this area and Mr. Moore was talking about the current state of the law that liability can be imposed under existing tort law. Is existing tort law sufficient as a remedy for victims?
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Mr. DRIMMER. I think the answer to that question is absolutely not and that is the main thrust of—certainly the main thrust of my testimony. Last time, and I think if you were to ask Pamela Reed how much she recovered in her civil case against the bounty hunters my point would be fairly well taken. Bounty hunters tend not to have liability insurance. I know that ANABIA, which is the main entity that is trying to professionalize the industry is helping professional bounty hunters get insurance but a lot of bounty hunters out there don't have insurance without respondeat superior liability. A civil remedy is basically hollow.
Mr. HUTCHINSON. I am going to go to Mr. Watson because you said something that certainly troubled me which was that if we pass this legislation we are going to increase crime in America.
Mr. WATSON. Yes, sir.
Mr. HUTCHINSON. And I think it is a theory that somehow there is going to be a disincentive for bondsmen or bounty hunters to go retrieve bail skips and therefore they are going to be committing crimes.
Mr. WATSON. No, sir, that is not it, Congressman. That is not it at all.
Mr. HUTCHINSON. How is this legislation going to encourage crime in America?
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Mr. WATSON. Well, Congressman, it is going to cause those insurance companies who today underwrite criminal court appearance bonds to the tune of about 4 million of those bonds a year, it is going to cause them to no longer be engaged in this business. So consequently those 4 million defendants are still going to have to be released from pre-trial State custody in some manner. Now there is only one other manner for them to be released under and that is on their own recognizance.
Mr. HUTCHINSON. All right. Let me follow up on that so I understand your point a little bit more clearly. First of all, I think that whether you are talking about this or different kinds of legislation, the fear of the unknown is greatly exaggerated and I know in the bonding community there is concern that there is going to be litigation running rampant in America, that this is going to make it difficult for you to get insurance and it is going to raise your costs.
First of all, I would question whether that in fact is going to be the case because we are not trying to encourage litigation, but encourage the States to take action. I think this bill will do that. But, secondly, if there is a cost to the insurance company, is that not reflected in an increase in premium? It is a simple question.
Mr. WATSON. Well, actually you pose two questions.
Mr. HUTCHINSON. I am asking one question, does that possibility increase the premium?
Mr. WATSON. Okay. Well, to answer the second question, the answer to the second question is no.
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Mr. HUTCHINSON. You would not raise premiums?
Mr. WATSON. No. Premiums are set by State statute so we got to go get legislation passed in all the States. In the meantime what happens to us?
Mr. HUTCHINSON. Well, obviously then the States can remedy that by adjusting the premium but if the premium goes up then it is the consumer, in this case it is the person who is in jail wanting to get out who is going to pay a higher premium cost. I think you have to be careful because I don't want that to happen, but I think that is a result of it, not in people pulling out of the insurance business. I think there is certainly going to be ample coverage there.
I don't agree with your conclusion, Mr. Watson, that this is going to increase crime in America. I see my red light is on so, Mr. Chairman, I yield back and thank you.
Mr. CANADY. Thank you.
Mr. HUTCHINSON. I want to thank the gentlemen, if I might, also for your testimony today. I'll try to be quick in my questions because we run out of time but I do thank you for testifying.
Mr. WATSON. Mr. Chairman, was that a question about whether it will increase crime in America? We do have numbers.
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Mr. HUTCHINSON. Mr. Chairman, that was a statement I made in conclusion.
Mr. WATSON. Thank you, sir.
Mr. CANADY. Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. Mr. Drimmer, there was part of your testimony that indicated that you believe that this activity, bounty hunting, is inherently interstate commerce, and I was trying to thumb through the bill quickly to see whether this applied in all bounty hunter cases, whether there was interstate search or whether it applies only in interstate—clarify how the bill is written on that point.
Mr. DRIMMER. The nature of my testimony is the specific provision of this bill that deals with notification to local law enforcement applies when a bounty hunter crosses State lines to make an arrest. I think that this is important for two reasons, both the substance of it——
Mr. WATT. Does the bill in its totality apply only when you are dealing with interstate situations or does it apply—would this bill apply as it is written to arrest and releases and pursuits all within the same State?
Mr. DRIMMER. I guess there is a part of it that would apply only to interstate conduct and that would be the local notification provision. The section 3, the notification, only applies, as the bill is written anyway, only applies when a bounty hunter crosses State line. Section 2, which is the agency relationship and the section 1983 provision, would be applied also to in State captures.
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Mr. WATT. Now how is that inherently interstate, as you see it?
Mr. DRIMMER. The nature of my testimony, certainly what I meant to convey, was the bill does recognize that bail jumpers frequently travel over State lines and that is the portion that I am referring to as a inherently interstate element. You frequently find fugitives when they run will cross State lines and this bill does take clear cognizance of that fact. Now whether under the—which is a slightly different question then on the Interstate Commerce Clause in United States v. Lopez and those issues but——
Mr. WATT. But in the standard under which we are operating, would we have the authority because—if it were the case all car thefts or most car thefts result in carrying a car across State lines, would that in and of itself give the Federal Government jurisdiction over all car thefts?
Mr. DRIMMER. To be completely honest with you, Mr. Watt, I am not an expert on the Federal requirements.
Mr. WATT. The professor is so he is going to clarify it.
Mr. DRIMMER. Absolutely.
Mr. NAHMOD. Let me make a preliminary comment, Congressman.
Mr. WATT. Absolutely.
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Mr. NAHMOD. So far as I understand this act, it is proposed pursuant to congressional power under section 5 of the 14th amendment and therefore it doesn't implicate interstate commerce, local commerce as such at all.
Mr. WATT. So we are not proceeding under the Commerce Clause at all then?
Mr. NAHMOD. That is correct.
Mr. WATT. Okay.
Mr. NAHMOD. So far as I understand the act, it is based on section 5 of the 14th amendment.
Mr. WATT. Okay. All right. Let me ask another question. I am just inquiring here academically. I don't know that I have a position on the bill yet. That is the beauty of having these hearings before one etches themselves into a position on a bill. I am just trying to understand. If I read the section 3 requirement, notification to law enforcement, and I were going only after interstate situations even though now we know this is not based on Interstate Commerce Clause—on the Commerce Clause. It is based on something else.
Would the notification that is required under section 3 in interstate cases be sufficient to create what Mr. Moore testified about as cooperation with local law enforcement officials or would there be a requirement of something else to create a cooperation with local law enforcement officials to get the State action that you testified about, Mr. Moore?
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Mr. MOORE. I think it is likely that a requirement of notification would lead to a finding of State action by the bounty hunter making that notification under existing case law.
Mr. WATT. Do you agree with that, Professor?
Mr. NAHMOD. It seems to me that in that kind of situation it would help on the State action issue. I am not sure if it would be determinative, standing alone. Does that help?
Mr. WATT. Well, it helps to confuse me. I am trying to figure out whether this notification in and of itself would get you State action, sufficient State action, so that maybe for interstate cases at least you wouldn't even need the rest of the bill.
Mr. NAHMOD. Congressman, it is my view that under the government function approach to State action, the notification would not be significant. There would be State action irrespective.
Mr. WATT. You would need notification plus some kind of more close relationship, some other involvement with local police officials.
Mr. CANADY. The gentleman's time has expired. The gentleman will have three additional minutes.
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Mr. DRIMMER. I just have a very quick factual point that may help. In the States that do have licensing requirements, and as I say there are about 13 of them, local notification is—it tends to be one of the dominant approaches that people have, States have, so even in States that do have existing laws, a local notification provision does tend to exist where you do have to notify——
Mr. WATT. But this law is going to preempt all of those, as I take it, right?
Mr. DRIMMER. I believe it won't. I think there is a preemption clause at the end of the bill, at least I thought so.
Mr. WATSON. Congressman, under section 3 of the act it specifically says that that requirement does not preempt any additional requirements that a State might have so this is clearly supplementary to whatever local requirements already exist.
Mr. WATT. Okay. I am still confused but I will get over it, I guess. It won't be the first time. It probably won't be the last time I will be confused. I think this his helpful and I appreciate it. Thank you. I yield back.
Mr. CANADY. Thank you, Mr. Watt. I will recognize myself now for some questions. Again, I want to thank all of you for being here. I think your testimony has helped illuminate some of the important issues here. As I look at this bill, I think it does address a real problem but it does it in a pretty measured and narrow way actually, and particularly I point to the provision of exceptions in section 2 on page 2 beginning on line 22.
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While the bill does establish the principal that the surety or agent will be responsible for the activities of the bounty hunter there is a very big exception in here for that because it says that a surety agent is not responsible for the conduct of the bounty hunter if the surety or agent takes all reasonable steps to assure that the bounty hunter is licensed in a State that requires licenses for bounty hunters or is licensed as a private investigator in a State requiring such licenses.
Now I guess one question that I would have is how many, if there is someone on this panel who knows, how many States actually require licenses for bounty hunters and how many States require licenses as a private investigator for bounty hunters. I think that is what it is referring to there.
Mr. DRIMMER. I can tell you that there are 13 States that have licensing requirements for bounty hunters. There are four States that completely ban the practice entirely and then in terms of additional requirements I know that Arkansas recently, I think, last year enacted a law that said you have to be a private investigator or a licensed bail agent. I think Texas may also have that law but I am——
Mr. CANADY. Mr. Watson, can you answer that?
Mr. WATSON. Yes, Mr. Chairman. Yes. If you include those States that have private investigator licensing requirements before you can serve a fugitive warrant. By my last count that leaves 10 States that do not have either bail fugitive recovery licensing requirements or that the person picking up the skip must either be a bona fide law officer or a licensed private investigator.
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As Mr. Drimmer has said, that includes those several States where no commercial bail is written so consequently you wouldn't have the activity anyway.
Mr. HUTCHINSON. Will the gentleman yield?
Mr. CANADY. Yes, I would be happy to.
Mr. HUTCHINSON. I would just ask Mr. Watson if he could provide the committee, and me particularly, with a summary of what you see as the State laws on that, and, Mr. Drimmer, if you could as well. That would be very helpful.
Mr. WATSON. Congressman, I was just looking through my packet. I thought I had that with me. I still think I do, I just don't find it, but I will get it right up to you and I will get it to each member of the subcommittee.
Mr. CANADY. That would be very helpful and without objection the record will be kept open and that will be made a part of the record. Maybe I am missing something but I think in those 40 States you are talking about you are going to have a problem under this law, right?
Mr. WATSON. No, sir, I will have a problem with this law.
Mr. CANADY. Well, I know you got a problem with the bill but as a practical matter I don't see why you would have a problem representing the surety companies, the insurance companies, why you would have a problem in those 40 States if those licensing provisions are there. If you do what you are supposed to do in those 40 States the liability is not going to flow through to you. If you can explain to me why it will then I will understand why you have a problem in those States.
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Mr. WATSON. Mr. Chairman, I think that the thrust of what you are saying in terms of legal liability is correct. I think we will win all of the lawsuits, but I think there are going to be an awful lot of lawsuits. For example, the licensee who goes out to pick up the bail skip never goes alone so some aggressive plaintiff lawyer says, well, was everybody that was out there, was everybody that touched my client, was everybody that said anything to him threateningly, was he licensed?
We are going to maintain that he didn't have to be but under the language in the bill that creates a fact issue. We don't even get out on summary judgment. We are going to go to the directed verdict stage of the legal proceedings. That is going to cost us $20,000 so we are going to buy out of the case for nuisance value and pay the man $10,000 and go on to the next case, and there are going to be a lot of cases.
Mr. CANADY. Would any of the rest of you like to address that point?
Mr. DRIMMER. The only point I would like to make is on my right Mr. Moore is saying that section 1983 already exists in a lot of circumstances, and I don't believe that there has been this parade of horribles in terms of an influx of Federal cases. And on my left we have a fear that with section 1983 there will be this kind of——
Mr. CANADY. Let me ask Mr. Watson this. Do the people that you represent ordinarily encourage that the bounty hunters cooperate with local law enforcement in executing the warrants?
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Mr. WATSON. The people that I represent, Mr. Chairman, don't deal with bounty hunters at all. We have encouraged legislation to make bounty hunting illegal. Now you will hear some people on the next panel who——
Mr. CANADY. What about your agents, do you encourage your agents to cooperate with the local police?
Mr. WATSON. Absolutely. Any producer contract that we have with a retail seller of bail bonds, he signs an agreement with us that he will abide by all local rules, regulations, laws, etc., of the State in which he operates. Absolutely.
Mr. CANADY. Has it been your experience that your agents are currently being subjected to a flood of litigation under section 1983 when they cooperate with local law enforcement?
Mr. WATSON. No, sir, but there isn't any law in the books that makes them automatically liable either and this one will.
Mr. CANADY. Nobody is automatically liable. There has got to be misconduct.
Mr. WATSON. Well, there will be misconduct on the part of the bounty hunter but there won't be any misconduct on the part of the insurance company and yet this reaches all the way to the insurance company.
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Mr. CANADY. I think the one thing you said is that there will be misconduct on the part of the bounty hunters. We have seen a pattern of that and that is why we are here trying to figure out a way we can create a system which will reduce the likelihood of that misconduct and create the right kind of incentives for all the people that are responsible for what goes on in the system to avoid that. That is why we have this legislation. Well, my time has expired. Do you want any more time, Representative Hutchinson?
Mr. HUTCHINSON. No, I will look forward to the next panel.
Mr. CANADY. Mr. Watt.
Mr. DRIMMER. Can I make one—I have just one very small——
Mr. CANADY. Without objection, I will give myself an additional 2 minutes.
Mr. DRIMMER [continuing]. Change that I hope will alleviate my friend, Mr. Watson's, concerns. I think one of his concerns is that you have an insurance company that will underwrite a bond agent, who then hires a bounty hunter, and I think one of his concerns is that the insurance company is going to be liable even though they are not a party to the interaction between the bond agent and the bounty hunter.
And I think that in the definition section under (2)(b)(1) that were simply to say that the bounty hunter is the agent of the surety who directly retains him or something to that effect. The insurance company that isn't actually privy or isn't a party to the arrangement between the bond agent and the bounty hunter would remain immune.
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Mr. WATT. Now wait a minute. Would the gentleman yield?
Mr. CANADY. Sure.
Mr. WATT. You are saying that the insurance company would not have any responsibility for the acts of the agent even though they insured the bonding company? They would be responsible for the agent's actions too, wouldn't they? Your policy gets you out of that arrangement?
Mr. WATSON. Yes, Congressman Watt. The agent, the person who is called the agent is not the agent of the insurance company in the traditional legal concept of respondeat superior. He is truly an independent contractor to the insurance company. If this committee said to me right now then you go tell your insurance company clients that we are going to revise this bill so that only that independent contractor retail seller of the bail bond is locked into this respondeat superior relationship automatically and mandated to pay for whatever the bounty hunter does, I would still object to the bill because I think the States need to handle this.
Mr. CANADY. So you wouldn't support that kind of change in the bill?
Mr. WATSON. No, sir. It wouldn't be fair of those people.
Mr. WATT. But the question I am asking is right now are you saying that your insurance policy wouldn't cover—wouldn't be responsible where a bounty hunter was hired by one of your insured bond companies?
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Mr. WATSON. No. Congressman Watt, there is a major, major misunderstanding here. We do not insure the seller of the bail bond. The seller of the bail bond uses our financial credits to write his bonds with.
Mr. WATT. Oh, okay. I got you.
Mr. WATSON. We are not a liability insurer.
Mr. WATT. I got you. I got you.
Mr. CANADY. Again, I want to thank all of you for being here. We will now move to our next panel. If the members of the next panel would come forward to take your seats.
The first witness on this fourth and final panel at today's hearing will be Detective Russell Stanford of the Fraternal Order of Police. Following Mr. Stanford, we will hear from Milton Hirsch, an attorney in Miami, Florida.
Our third witness on the panel will be Tom Nickolich. Mr. Nicholich has been a professional bail bondsman since 1980 and is the founder of AAA Bailbond Company. He is also currently serving as chairman of the Arkansas Bail Bond Licensing Board. Next we will hear from Armando Roche, president of the Professional Bail Agents of the United States.
And the final witness on this panel and for this hearing will be John Stein of the National Organization for Victim Assistance, and I want to thank all of you for taking the time to be here today. Please do your best to confine your remarks to 5 minutes as indicated by the light. Your full written statements will be made a part of the record. Mr. Stanford.
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STATEMENT OF RUSSELL STANFORD, DETECTIVE, FRATERNAL ORDER OF POLICE
Mr. STANFORD. Good afternoon, Mr. Chairman, and members of the subcommittee, I am Russell Sanford, a detective with the Metropolitan Police Department. In February of this year, I retired after 21 years with the police department. I currently serve as elected second Vice President for the District of Columbia Jerrard F. Young Memorial Lodge #1, of the Fraternal Order of Police. The Fraternal Order of Police is the largest rank-and-file organization of law enforcement professionals in the Nation, representing over 285,000 men and women in law enforcement.
I am here this afternoon at the request of Gilbert Gallegos, National President of the Fraternal Order of Police, to discuss our support for H.R. 2964, the Bounty Hunter Responsibility Act. Because of my experience as a member of the Metropolitan Police Repeat Offenders Unit, I can tell you that bounty hunters occupy a unique and supplemental role in the criminal justice system.
It is important, however, to recognize that bounty hunters are not law enforcement officers. In States where they can lawfully operate, the Fraternal Order of Police agrees that they need to be subject to the same type of criminal and civil liability that State actors, such as police officers, are subject to when violations of an individual's constitutional rights occur.
The legislation being discussed here today would consider a bail bondsman or a bounty hunter who seeks custody over a defendant released on bond as acting under color of State law under title 42, section 1983 of the United States Code. Moreover, the purpose of civil and criminal liability, 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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Additionally, we also strongly support the provision which requires that a surety or bounty hunter who seeks physical custody over a defendant in a different State from where the defendant is bonded is required to alert local law enforcement. This is an important point from our perspective as bounty hunter activities may not always be in sync with law enforcement.
A tragic example from Buffalo, New York, illustrates the dangers associated with irresponsible bounty hunting and the damage it can inflict on local law enforcement efforts. On February 25, 1998, Buffalo police officers answered a call about an individual who was wanted in the State of Maryland. Officers were told by the caller, a bounty hunter pursuing that suspect, that the man was possibly armed and riding a city bus.
The officers met the bus and the wanted person fled on foot across an expressway. During the pursuit, one of the officers was struck and killed by a car. The wanted individual was eventually arrested, but in researching the Maryland warrant, it was determined that extradition applied only to surrounding States. In other words, the suspect would not have otherwise been arrested.
This bill addresses our concerns that bounty hunters notify local law enforcement of their presence and plan. We 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 insure that tragedies like the one in Buffalo do not repeat themselves.
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We believe this bill smartly addresses the aim that abuses by some sureties and the bounty hunters in their employ will be curtailed. While the bounty hunter is not a law enforcement officer, he does occupy an important role in our criminal justice system and ought to not be immune from laws protecting the civil rights of all Americans. Thank you.
[The prepared statement of Mr. Stanford follows:]
PREPARED STATEMENT OF RUSSELL STANFORD, DETECTIVE, FRATERNAL ORDER OF POLICE
Good afternoon, Mr. Chairman and distinguished Members of the House Subcommittee on the Constitution. My name is Detective Russell Stanford and I am a retired 21-year veteran of the Metropolitan Police Department in Washington, D.C. I currently serve as the elected second Vice President for the District of Columbia Jerrard F. Young Memorial Lodge #1, of the Fraternal Order of Police. The F.O.P. is the largest rank-and-file organization of law enforcement professionals in the nation, representing over 285,000 men and women.
I am here this afternoon at the request of Gilbert G. Gallegos, National President of the Fraternal Order of Police, to discuss our support for H.R. 2964, the ''Bounty Hunter Responsibility Act.''
Because of my experience as a member of MPD's Repeat Offenders Unit, I can tell you that bounty hunters occupy a unique, supplemental role in our criminal justice system.
It is important, however, to recognize that bounty hunters are not law enforcement officers. In States where they can lawfully operate, the F.O.P. agrees that they need to be subject to the same type of criminal and civil liability that State actors, such as police officers, are subject to when violations of an individual constitutional's rights occurs. The legislation being discussed here today would consider a bail bondsman or a bounty hunter who seeks custody over a defendant released on bond as acting under color of State law under Title 42, Section 1983 of the United States Code.
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Moreover, for purposes of civil or criminal liability, 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.
Additionally, we also strongly support the provision which requires that a surety or bounty hunter who seeks physical custody over a defendant in a different State from where the defendant is bonded is required to alert local law enforcement.
This is an important point from our perspective as bounty hunter activities may not always be in sync with law enforcement's. A tragic example from Buffalo, New York, illustrates the dangers associated with irresponsible bounty hunting and the damage it can inflict on local law enforcement efforts. On 25 February 1998, Buffalo police officers answered a call about an individual who was wanted in Maryland. Officers were told by the caller, a bounty hunter pursuing the suspect, that the man was possibly armed and riding on a city bus.
The officers met the bus and the wanted person fled on foot across an expressway. While pursuing the suspect, one officer was struck and killed by a car. The wanted individual was eventually arrested, but in researching the Maryland warrant, it was determined that extradition applied only to surrounding States. In other words, the suspect would not otherwise have been arrested.
This bill addresses our concern that bounty hunters notify local law enforcement of their presence and plan. We 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 ensure that tragedies like the one in Buffalo do not repeat themselves.
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We believe this bill smartly addresses the aim that abuses by some sureties and the bounty hunters in their employ will be curtailed. While the bounty hunter is not a law enforcement officer, he does occupy an important role in our criminal justice system and ought not to be immune from laws protecting the civil rights of all Americans.
Mr. CANADY. Thank you, Mr. Stanford. Mr. Hirsch.
STATEMENT OF MILTON HIRSCH, ATTORNEY AT LAW, MIAMI, FL
Mr. HIRSCH. Mr. Chairman, thank you. I very much appreciate the opportunity to appear before you this afternoon on behalf of the criminal justice system's faithful handmaiden, the bail bondsman. The concerns that have been expressed before and by this committee are of concern to the bail industry. The stories that we heard today are profoundly troubling. Although the bail industry enjoys a safety record that would be the envy of any police department in America inevitably claims have been brought, and will be brought, sounding in tort arising out of the nature of bail activities.
The courts in this country, State and Federal, have demonstrated no difficulty whatsoever in adjudicating those claims and where appropriate rendering judgment on those claims. Now, any time a judgment is uncollectible that is wrong and that is an injustice. I suspect that it is the uncollectibility of judgments, not the difficulty in litigating cases, that animates Congressman Hutchinson and prompts him to bring this bill. If indeed, as I suspect, that is his concern, this bill is not the way to remedy that concern.
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We, the bail industry, would be delighted to work with this body toward the goal of guaranteeing that there is never a judgment against a bail bondsman or bounty hunter that is not fully collectible; but taking what are essentially garden variety tort claims and federalizing them, subjecting them to the logarithmically greater costs and expenses of Federal litigation, simply drains the resources of the bail industry rendering it less likely, not more, than a defendant will be able to meet a judgment rather than become an insolvent judgment debtor.
We can do better than this bill, much better. Now I am sorry Congressman Hutchinson left because apart from that very important issue there is an anomaly in this bill that bears upon the questions Mr. Watt was asking earlier. Section 3 of this bill apparently proceeds upon the assumption that a bounty hunter or bail bondsman can cross interstate lines to take custody of a fugitive. My friend, Jonathan Drimmer, appears to have misspoken and I will have to talk to him later.
In point of fact, neither a bail bondsman nor a bounty hunter can cross interstate lines. Interstate rendition of fugitives can only be accomplished in this country pursuant to the terms of the Uniform Criminal Extradition Act. That is a proposition that has been carefully evaluated by courts from Massachusetts, Minnesota, New Mexico, Hawaii, the U.S. Court of Appeals for the 5th Circuit, American courts from coast to coast, and all in the past 13 or 14 years have uniformly come to the conclusion that a bail bondsman or a bounty hunter cannot cross State lines to effect the recovery of a fugitive.
That can only be done pursuant to the provisions of the Uniform Criminal Extradition Act. My fear arising from this anomaly is that if this act as drafted becomes law, it will be a basis to argue that it cuts through the terms of the Uniform Criminal Extradition Act and that indeed bail agents and bounty hunters are justified in engaging in the pursuit and transportation of fugitives across interstate lines, something that the bail industry does not want to see.
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Last point: Mr. Chairman, you and I know very well that in our home State of Florida—we were reminded by our fellow Floridian, Congressman Deutsch—in our home State of Florida we have done away with bounty hunting and bounty hunters. Now I am not going to suggest that the Florida model is perfect or that it is a panacea to all the concerns that Mr. Hutchinson has expressed. I know that you, Mr. Chairman, are well familiar with it.
I can assure this body that other States, other large and populous States, are reviewing, studying, adopting and adapting the Florida model and we would be pleased to work with this subcommittee with a view to studying and considering whether it would be appropriate for the Federal Government to adopt such a model. What we have done, Mr. Chairman, as you well know, in Florida is offer a pound of prevention rather than a litigation-based solution, which can never be more than an ounce of cure. Thank you again for the opportunity to address you.
[The prepared statement of Mr. Hirsch follows:]
PREPARED STATEMENT OF MILTON HIRSCH, ATTORNEY AT LAW, MIAMI, FL
Dear Chairman Canady:
The following is my written submission in connection with hearings to be held by the Subcommittee on the Constitution on Thursday, March 30, regarding the above-captioned bill.
The Bounty Hunter Responsibility Act of 1999 proposes to federalize common-law tort claims against bail bondsmen, and against their recovery agents (''bounty hunters''). The bail industry shares the Subcommittee's concern that the operation of the American system of private bail contribute to, and not detract from, the safety of the general public. For reasons that I consider herein below, however, I respectfully suggest that the present version of H.R. 2964 will not foster that laudable goal.
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Commercial bail is perhaps the only truly privately funded component of the American criminal justice system. A bail bondsman is an insurance agent. His responsibility is to take all reasonable steps to assure the presence of a criminal defendant in court. The cost of the commercial bail system is borne entirely by private-sector actors: the criminal defendant and his family, the bail bondsman, and the insurance company whose agent the bail bondsman is. The public incurs no expense whatever.
Because of the private-sector nature of the bail industry, courts have recognized that the provisions of 42 USC 1983—a statute directed at the conduct of those who purport to wield the power of the state, county, or municipality—are inapplicable to bail bondsmen and ''bounty hunters''. Section 1983 has its roots in those constitutional and statutory enactments that followed the Civil War, and that proceeded from a suspicion on the part of federal legislators that state governments would attempt to subvert the enjoyment by citizens (particularly newly-freed African-Americans) of federally guaranteed rights. Suppose, for example, that an African-American were to have brought a claim in the state courts of my home state of Florida in the years immediately following the Civil War. Suppose further that the claim alleged a deprivation of rights by a white police officer. Arguably, an appearance of impropriety would have attended the ensuing trial, in which the county judge would feel (or be perceived as feeling) a natural collegiality with and affinity to the defendant policeman. In order for justice to be done and to be seen to be done, federal legislation provided a vehicle for such a lawsuit to be brought in federal court.
Such concerns are nonexistent when a tort claim is brought against a bail bondsman. There can be no appearance of unfairness arising from an imagined collegiality between the county judge and a bail agent for the very good reason that, unlike the judge and the police officer, the judge and the bail bondsman are not in any sense colleagues. The bail agent is simply one of a number of professionals and tradesmen in the private sector who provides services to the court system. The same could be said of court reporters, computer specialists of various kinds, and the man who refills the vending machine in the courthouse lobby. Section 1983 was never intended to regulate the conduct of such people.
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In the same vein, courts have consistently characterized bail bondsmen as private-sector actors for purposes of §1983 liability. See, e.g., McCoy vs. Johnson, 176 F.R.D. 676, 1997 U.S.Dist.LEXIS 21218 (N.D.Ga. 1997); Mason vs. City of New York, 949 F.Supp. 1068 (S.D.N.Y. 1996); Hunt vs. Steve Dement Bail Bonds, Inc., 914 F.Supp. 1390 (W.D.La. 1996); Harrison vs. Pinsky, 1995 U.S.Dist.LEXIS 20866 (D.Md. 1995); Easley vs. Blossom, 384 F.Supp. 343 (S.D.Fla. 1975); Curtis vs. Peerless Ins. Co., 299 F.Supp. 429 (D.Minn. 1969). Those cases that characterize the conduct of bail bondsmen as state action for purposes of §1983 are the ones in which the bondsman enlists the help of police in taking custody of a criminal defendant. In effect, the bail agent rides into federal court on the coat tails of the police officer. The defendant in Bailey vs. Kenney, 791 F.Supp. 1511 (D.Kan. 1992), for example, was a bail bondsman who, with the assistance of local police, entered plaintiff Bailey's home and arrested Bailey. When it turned out that Bailey was the wrong man, he brought suit under §1983. Kenney sought summary judgment on the theory that he was not a state actor. On the narrow facts of this case, the court rejects that argument:
[T]he undisputed evidence establishes that Kenney and the police officers acted in a concerted manner to enter the house and restrain plaintiff of his liberty. Moreover, there are allegations allowing the inference that the police officers actually acted under the direction of Kenney, who informed [the police officers] that they could enter and search . . . Bailey at 1522.
Even on these facts, however, liability under §1983 proved an unwieldy solution to the problem. Although the court found that the bail agent was a state actor for this purpose, it did not afford him the qualified immunity from suit accorded by the law to police officers whose actions, though wrongful, were reasonable in the circumstances. Thus the court dismissed the case against the police, finding that they reasonably believed that they were authorized to assist Kenney in arresting Bailey; but permitted Bailey's lawsuit against Kenney to proceed.
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What is perhaps most remarkable about the private bail industry in this country is its safety record. One can scarcely pick up a newspaper anywhere in America today without reading allegations of police violence and misconduct. Los Angeles is in the throes of the ''Rampart Division'' corruption scandal involving the alleged planting of evidence and shooting of unarmed suspects. New York City police officers have been convicted of torturing a suspect and covering up the crime, but have been acquitted in the shooting death of an unarmed civilian. State and local law enforcement agencies are accused of using ''racial profiling'' in traffic stops. By contrast, the bail industry's most vehement critics are hard-pressed to conjure up half-a-dozen incidents in the past decade in which bail bondsmen or ''bounty hunters'' engaged in anything remotely resembling such conduct. Of course even one instance of the abuse of the rights of one citizen is intolerable, whether committed by a cop or a private-sector actor. But before this Subcommittee extends the reach of a powerful federal statute, there ought to be a clear need to do so. Here, no such need exists.
On the contrary; state courts are entirely equipped to litigate tort claims brought against bail bondsmen and their ''bounty hunters''. Such a claim—for battery, false imprisonment, trespass, etc.—is conceptually uncomplicated and readily adjudicated in state courts. In this context the expansion of §1983 jurisdiction is a solution in search of a problem.
This is not to say that no problems exist. As noted supra, the bail industry shares this Subcommittee's desire to see that the institution of private bail always contribute to, never detract from, public safety. There are reported instances of plaintiffs bringing claims in state courts against bail bondsmen or ''bounty hunters'', receiving a judgment, and then being unable to collect when the defendants claimed insolvency. Of course uncollectible judgments are part of the civil-litigation landscape, whether in cases involving bail agents or in cases involving rear-end collisions, slip and falls, or breach of contract. For its part, the bail industry is eager to work with this Subcommittee to find regulatory solutions, whether at the state or federal levels, to guarantee that no judgment had against a bail bondsman or ''bounty hunter'' ever go uncollected. But extending §1983 liability to the bail industry will not render insolvent bail bondsmen solvent.
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For the foregoing reasons, I respectfully oppose passage into law of the present version of H.R. 2964. On behalf of America's bail bondsmen, I urge the Subcommittee to consider legislative solutions more likely to provide security to the American public, and less likely to prove destructive of an industry that has served the criminal justice system faithfully and well.
Mr. CANADY. Thank you. Mr. Nickolich.
STATEMENT OF TOM NICKOLICH, AAA BAILBOND COMPANY
Mr. NICKOLICH. I am Tom Nickolich and I want to thank members of the committee. First of all, I support Mr. Hutchinson's bill and its intent. I believe that the bounty hunters need to be regulated and the people that hire them should be held accountable. In Arkansas we just—there are no bounty hunters in Arkansas anymore as of this last legislative session. I don't think there will be any in the near future but I believe that the bail enforcement agents should have to meet certain criteria. They should have no felony convictions. They should have no convictions in misdemeanor crimes that involve violence or any moral turpitude offenses.
And I don't think that this bill is going to affect us in Arkansas in any way. It is not going to affect the bail bond business, to the extent that it is going to make everybody be more careful but I don't see us—we are careful being sued like everybody seems to be afraid of. That will be it. Thank you.
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[The prepared statement of Mr. Nickolich follows:]
PREPARED STATEMENT OF TOM NICKOLICH, AAA BAILBOND COMPANY
I entered the bail bond business in 1980 and formed my own company. Although we provide a major service within the criminal justice system, we usually go unnoticed in that system. We are a silent work force, and few people realize we exist until they need a bail bond OR a bad apple makes the news. Our industry has never received the respect or appreciation it deserves for the extraordinary job it has done.
In researching this situation, I observed that in many ways the attitude was deserved. From the outset, one of my companies' priorities has been to improve the image of bail bondsmen and our industry as a whole. I have been very active in the state association and have tried to bring professionalism to the forefront in its activities. It is a slow process but we are making great strides in the State of Arkansas and becoming more and more professional.
Back in the early 1980's, it was my observation that there was little, if any, regulation of bail bond agents in Arkansas. The majority of bail bond agents in the U. S. work for insurance companies. Those insurance companies are regulated by state insurance departments/commissions. Those state agencies are concerned with the ''insurance'' business, not the bail bond business. Hence, the regulating of the bail bond agents is secondary to the regulating of insurance companies, for the most part. With a little encouragement, our state association initiated and passed legislation which removed the regulation of bail bond agents from the insurance commission and established a bail bond board to do that job.
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With the creation of the Bail Bond Board in 1993, of which I currently serve as Chairman, we now have a regulatory agency which oversees the conduct of bail bond companies and individual agents and which takes swift action against those who are engaging in unethical and/or illegal practices. The Board (which is made up of a judge, a police chief, a sheriff, a citizen-at-large, and three bail bond company owners) has proven to be much more rigid in administering its duties than was previously done by its predecessor. We believe this is because it is made up of people who are intimately familiar with bail bonds and their purpose as well as the laws governing the bondsmen who write them.
I wanted to give you a little of my background and experience, not to boast, but to let you know where I'm coming from in presenting my views here today. I have been involved in getting legislation passed and I know how difficult it can be. I appreciate the opportunity to speak to you and give my views on the pending legislation dealing with bail enforcement agents.
First of all, I do support this bill and its intent. I firmly believe that bail enforcement agents should be licensed and held accountable for their actions. I also believe that individuals or companies should be held accountable for the actions of the persons they hire to apprehend a bail skip.
In order to get a license, I believe ''bail enforcement agents'' should have to meet certain criteria which would include, but not be limited to, the following:
absolutely no prior felony convictions;
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no convictions of misdemeanor crimes of violence (i.e., battery,
domestic abuse, etc.); and
no convictions of offenses involving moral turpitude.
The individual should also meet some minimum requirements to be licensed, such as:
having two years of experience as a certified law enforcement officer;
having a private investigator's license; or
having five years of experience as a licensed bail agent.
I believe the licensing agency should monitor the performance of bail enforcement agents providing an entity to receive any complaints that might be filed against an individual. This agency should set forth specific procedures which must be followed, such as:
checking in with local law enforcement agencies when looking for a fugitive outside of the bail enforcement agent's ''home'' area where the agent is known to law enforcement officers;
always carrying appropriate identification when questioning relatives and acquaintances of the fugitive;
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if the bail enforcement agent has reason to believe a dangerous situation could develop, he should request assistance from local law enforcement.
If an individual fails to perform in compliance with these types of procedural guidelines, his license could be suspended or revoked, depending on the severity of his noncompliance.
These would be positive ways of improving the current situation but leaving the basic structure intact so that good, reputable agents can still do their jobs. Every time a ''bounty hunter'' is involved in any type of incident such as those proffered by Congressman Hutchinson, it causes (in my mind) serious problems for the majority of bail agents who do everything right. I have been to almost every state in this country looking for bail skips, and I have never had a problem with anyone, neither local authorities nor family or friends of the fugitive.
I personally handle all of the out-of-state bond skips on bonds written by the bail agents that work for our company, and our agents take care of the skips that are inside the state. It is standard procedure for me to always check in with the local authorities when I am looking for a fugitive. By checking in with them, they know who I am, who I am looking for, and in most cases, will offer to help if any type of problem arises and I need to call on them.
Bail enforcement agents who get their ''inspiration'' from movies and TV shows are not properly trained and have no experience in law enforcement or even as a bail agent. They have no earthly idea of what to expect or how to react in the various situations that can arise when you are trying to place someone in custody. These are things that must be either learned on the job working with experienced people or learned in schools such as police academies, etc. Training is very important in order to learn the proper ways to handle different situations.
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I am in support of this bill because it is the right thing to do. We want to correct this potential problem before it can get worse. If the estimated number of bail fugitives apprehended (as reported on the various documentaries televised recently) is correct, then the number of incidents reported is extremely small, three-ten thousandths of one percent (.0003%). If we are vigilant now and avoid future problems, we are doing the right thing.
Our criminal justice system is the best in the world. The bail bond is an instrument that has helped to make that system work for 200 years. I am proud to be a part of such an important industry within our country's criminal justice system, and I want to be a part of making it even better. Thank you for your time and attention.
Mr. CANADY. Thank you. Mr. Roche.
STATEMENT OF ARMANDO O. ROCHE, PRESIDENT, PROFESSIONAL BAIL AGENTS OF THE UNITED STATES
Mr. ROCHE. Mr. Chairman, I would like to have entered—thank you first for the opportunity to be here with you today and give you my remarks. I have here a letter articulating their objections to the bill from the Surety Association of America that I would like to enter into the record
Mr. CANADY. Without objection.
[The documents referred to are on file with the House Judiciary Committee's Subcommittee on the Constitution.]
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Mr. ROCHE. There are also 44 companies doing business in the State of Arkansas. I have 42 letters here from each of the owners of those companies in opposition of this bill. In addition to that, I have eight sheriffs, including the president of the Sheriffs Association of Arkansas opposing this bill. Please enter these letters also. You must understand that most agency, bail agency owners, use experienced professionals, many who have previous law enforcement backgrounds to do their recovery work for them.
[The documents referred to are on file with the House Judiciary Committee's Subcommittee on the Constitution.]
Mr. ROCHE. Others choose to handle recovery in house. The problems created by the bounty hunter abuses have produced certain discernible responses. In Florida it has been addressed, the problem of the bounty hunters, by making it a third degree felony to be a bounty hunter in the State of Florida. Since these hearings began in 1998, legislation has been passed in Arizona, Arkansas, California, Colorado, Connecticut, Florida, which already had it, Georgia, Idaho, Kansas, Louisiana, Michigan, Missouri, Mississippi, Nevada, New Hampshire, Oklahoma, Tennessee, Texas and Washington.
The Professional Bail Agents of the United States stand for complete regulation of the bail enforcement recovery process together with severe penalties for its violations. Standards regulating fugitive recovery will continue to be aggressively promoted and lobbied by our membership in those States which have not adopted any standards. We continue to believe the State legislatures are the appropriate forums for corrective legislation.
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The position of the professional bail agents continues to be very clear, regulate bounty hunters at the State level or prohibit them altogether. Mr. Chairman, some 4 million defendants are released yearly on a financially guaranteed appearance bond in this country. In conclusion, the net effect of making bail agents State actors subject to the provisions of 1983 will unquestionably eliminate the bail agent and the surety or insurance companies they work for.
It has been made clear to us by many sureties that they will not remain in the bail bond business if this bill places them under 1983 Civil Rights Act. The reason for this is that the cost of defending Federal civil rights litigation would be prohibited. As the owner and CEO of my own insurance company in Florida, I can tell you that we will get out of the bail bond business if this bill becomes law. We had an agent that was sued under 1983 last year that cost over $20,000 just to have the motions filed to dismiss the case in the Federal court system.
The case later went to the State court where a negotiated plea was made and a settlement was made and it cost $30,000. The indemnor on that bond slapped the defendant in the back of the head and because the agent had told the indemnor who guaranteed the bond to bring him by his office, he was sued. It was a $250 bond that cost over $50,000 to defend. I can sit here today and tell you that if this legislation passes in its current form, we will have to go back to Florida and ask them to make bounty hunters available for use by bail agents and insurance companies so that they will have no liability whatsoever.
I ask you to take careful consideration before you vote on this matter as to the ramifications that it will have in each State. And I can tell you that a lot of good has come from these hearings. We have over 19 or 20 States that already have legislation affecting this. Keep this at the State level. Thank you and thank you for allowing me to be here today.
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[The prepared statement of Mr. Roche follows:]
PREPARED STATEMENT OF ARMANDO O. 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 29 years; and have recently been re-elected President of the Professional Bail Agents of the United States, (PBUS) 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 49% 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.
Second. PBUS has drafted a Model Act for adoption at the state level and is being advocated by our members across the country, this has resulted in legislation being passed in: Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Kansas, Louisiana, Michigan, Missouri, Mississippi, Nevada, New Hampshire, Oklahoma, Tennessee, Texas and Washington.
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The Professional Bail Agents of the United States stand for complete regulation of the bail enforcement recovery process together with severe penalties for violations.
Third. PBUS would like to see state legislation that 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 licensing. 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. PBUS has established a model set of required standards for fugitive recovery on bail enforcement that is supported and adhered to by all of its members. These standards regulating fugitive recovery will continue to be aggressively promoted and lobbied by our membership in those states, which have not adopted any standards. We continue to believe that state legislatures are the appropriate forums for corrective legislation.
The position of professional bail agents continues to be very clear, regulate the bounty hunters at the state level or prohibit bounty hunters altogether.
Mr. Chairman, some four million defendants are released yearly on a financially guaranteed appearance bail bond.
In conclusion, the net effect of making bail agents state actors subject to the provisions of 1983, will unquestionably eliminate the bail agent and the surety or insurance companies they work for. It has been made clear to us by many sureties that they will not remain in the bail business if this bill places them under the 1983 Civil Rights Act. The reason for this is that the cost of defending federal civil rights litigation would be prohibitive.
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Mr. Chairman, I thank you and the Members of the committee for allowing me this opportunity to appear and be heard.
Mr. CANADY. Thank you, Mr. Roche. Mr. Stein.
STATEMENT OF JOHN STEIN, NATIONAL ORGANIZATION FOR VICTIM ASSISTANCE
Mr. STEIN. Thank you, Mr. Chairman, Mr. Watt. I am pleased to be here representing NOVA and 4,500 victim service agencies around the country that it represents. A week from tomorrow in this room we will have a podium right in front of you here where we will be hearing from the Attorney General at our 17th Annual Victim Rights Forum, and then in the chairs in front of you will be seated five or six former victims of crime to describe the awful circumstances they went through and how they tried to make their lives better as a result and to help prevent other victimizations.
That victims panel was preceded today by Ms. Moore, Ms. Babb and Ms. Reed, and I want to underscore the outrage that I think all of us should feel about the criminal violation of these people, their ongoing pain and suffering, and the pattern that Mr. Hutchinson has shown of what I guess are being called rogue bounty hunters. Clearly, what we are seeing here is not people maliciously going up to strangers and saying, gee, there is a warrant out on you and now let me beat you up and terrorize you. No, it is people mistakenly picking somebody out, going to the wrong door and then showing a kind of a rage and stupidity and thuggishness that is criminally repugnant and wrong.
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From our perspective the kind of victimization that we heard about today does not have at this point sufficient remedies in law and from our perspective the very concept of bringing remedies under section 1983 has a magic ring to it. It is, after all, the bulwark of our civil rights amendments and statutes. It is a special sequence of numbers for those of us who come out of the civil rights movement like Mr. Watt, and I think those of us in the victims' movement would think it especially appropriate as a bulwark of protection for future victims.
It is my belief that those in law enforcement who are subject to section 1983, at least the better members of law enforcement, are proud that they are the upholders of civil rights in our Nation and are subject to civil rights violations if they fail in that special duty. We would like to think that those in this industry would also be proud to be subject to the same standards.
I have other points in my written testimony, Mr. Chairman, but I did want to make notice in closing of section 4 of the bill which calls for the development of guidelines that could be held out as perhaps a model statute for the States. I am pleased to hear that the industry here affected supports that. I am pleased to see that they would be statutorily part of the advisory process whereby the Attorney General would put together the guidelines.
I just want to indicate that they are not alone affected by whatever guidelines and, for that matter, whatever legislation you pass, but also the people who have suffered from the misconduct that this is trying to cure. And therefore we strongly urge that a seventh category of representatives, organizational representatives, be added to the list of advisors and that is organizations representing past victims of the misconduct that this law would prescribe. And I thank you very much for your attention.
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[The prepared statement of Mr. Stein follows:]
PREPARED STATEMENT OF JOHN STEIN, NATIONAL ORGANIZATION FOR VICTIM ASSISTANCE
Chairman Canady and Members of the Subcommittee, I am John Stein, Deputy Director of the National Organization for Victim Assistance, or NOVA. Thank you for inviting me to speak in support of H.R. 2964, the Bounty Hunter Responsibility Act of 1999.
I am proud to do so as a representative of the 4,500 agencies and individuals from all across the United States who are our members, and of the Board of Directors whom they have elected to serve as trustees of the victims' movement.
Founded in 1975, NOVA is the oldest and most far-reaching democratic voice of what has become a worldwide movement to bring healing and justice to crime victims. Historically, those elected to our Board represent the true strength and diversity of the victims' movement in America. As an example, among our past Presidents are two clergy members and university professors, a NOVA volunteer who later became Executive Director of the International Association of Chiefs of Police, the founder and operator of a battered women's shelter, the founder and administrator of a rape crisis center, a founding member of the American Professional Society on the Abuse of Children, a state corrections administrator, three elected prosecutors, a state victim services administrator, and a county-based victim assistance director.
I stress the diversity of our leadership to underscore the significance of the unanimity of formal support of our Executive Committee—echoed informally across the whole spectrum of the victims' movement—of the legislation before you. The same extraordinary diversity is, of course, manifested in the September 26, 1997, ''Dear Colleague'' letter seeking support for this legislation from yourself, Chairman Canady, and Representatives Hutchinson, Conyers, and Hastings.
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So to put it plainly, in our view the Bounty Hunter Responsibility Act of 1999 should have been enacted in 1999—if not before.
Normally, in expressing support for legislation that would bring redress to those unjustly victimized, we would recount the anguish that innocent people have endured. We choose not to do so in this case, since Representative Hutchinson has documented not just a handful but scores of such outrages and tragedies, any one of which would justify Congress taking action. We commend him, among other reasons, for giving voice to the victims of these wrongs.
The heart of the bill is found in Section 2, which imposes on private bounty hunters the same liabilities imposed on sworn law enforcement officers when they wrongfully harm innocent people. The fact that, in too many circumstances, current law permits bounty hunters to victimize people with impunity is a disgrace, and we applaud the bill's efforts to make them as responsible for their misconduct as the law requires of others performing law enforcement functions.
We take special gratification in the means by which these ends are sought: to hold bounty hunters and those who employ them to the same standard of conduct we require of state actors under our nation's civil rights laws. Indeed, we would like to believe that responsible members of the bail bonding industry and independent bounty hunters would take professional pride in being governed by the fundamental standards of decency enshrined in those laws—for I know that many in professional law enforcement, performing the very same public services, welcome the scrutiny of our civil rights laws in the performance of their duties.
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By the same token, we would hope that those affected by the legislation would support the common-sense provision of Sections 3. A requirement that out-of-state bounty hunters notify local law enforcement of their efforts to arrest a bail-jumper can only lead to a more peaceable performance of that task, reducing the risks to those being sought, to their would-be captors, and to innocent people who find themselves erroneously targeted by the bounty hunters.
The same holds true of Section 4, mandating the development of model guidelines for the regulation of the profession for the states to consider. The legislation wisely invites affected industries and individuals to advise the Attorney General on the formulation of those guidelines. Those affected by the legislation can and should be part of the consultative process in framing the guidelines.
Which leads to my only recommended change in the bill: ''those affected'' by the legislation include not only those who have committed misconduct in the process of bounty hunting but those who have suffered from that misconduct. We therefore strongly urge that a seventh category of organizations to be consulted be added, one representing past victims of conduct that the act proscribes.
Thank you for the opportunity to present NOVA's views on H.R. 2964. We look forward to its speedy enactment.
Mr. CANADY. Thank you, Mr. Stein. Mr. Watt, you are recognized.
Mr. WATT. Thank you, Mr. Chairman. Mr. Hirsch.
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Mr. HIRSCH. Yes, sir.
Mr. WATT. I felt a shudder go through the room when you said that bounty hunters have no authority to go across State lines now to pursue people.
Mr. HIRSCH. That is the law.
Mr. WATT. That is because of what—tell me again what the uniform——
Mr. HIRSCH. Uniform Criminal Extradition Act, which has been adopted by 46, I want to say, States plus other American jurisdictions, American Samoa, and some of the territorial——
Mr. WATT. I am not arguing with you. I don't know but it surprised me that we were here making a lot of ado about this——
Mr. HIRSCH. You make a good point. It is a shame that a lot of people don't know about that.
Mr. WATT. But let me be clear though. There is a Uniform Extradition Law but once the extradition order is entered, are you saying that a bounty hunter doesn't have the authority to go and pick that person up?
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Mr. HIRSCH. There are three courses of action that a bail bondsman or his designee, the bounty hunter, can take under the Uniform Criminal Extradition Act. If let us say I am admitted to bail in my home State of Florida and I flee and I come here to Maryland and I am located by Mr. Roche, who is the bail bondsman who took me out. There are three things he can do. He can take the court paperwork, the copy of the bail, the docket sheet, the warrant, and what have you, and appear before a judge in Maryland.
That judge will arrange for me to be taken into custody and then transported to the State of Florida, not in Mr. Roche's custody but as a State-to-State type matter. Number two, Mr. Roche can go to the office of the State Attorney in Florida in my home jurisdiction and ask that the State Attorney make a request to his cognate, the State district attorney here in Maryland in the jurisdiction in which I have taken refuge and make essentially the same request that I be taken into custody by the State of Maryland and transported.
The only self help in which he can engage is if it is a felony case, not a misdemeanor, upon which I have been admitted to bail and fled, if he comes to Maryland and finds me, he can take me to the local police department, jail, sheriff, or circuit judge, I don't know if you call them circuit judges here in Maryland, and surrender me. That is the most self help he can engage in. But the common misimpression——
Mr. WATT. Isn't that the point at which they go and kick in somebody's door like Ms. Reed or Ms. Moore, one of the victims earlier. That is the point at which the misconduct that we are trying to address would occur, wouldn't it?
Mr. HIRSCH. I can only tell you that in the past 13 or 14 years when courts have started to construe the Uniform Criminal Extradition Act in that fashion, Congressman, the industry has started to inform itself and adapt its conduct and so that obviously what happened to Ms. Reed is tragic. It should never have happened, not even once, but what we are seeing now is conduct more in conformity with the statute because the cost effective way to do it is not to engage in self help but to go to the local law enforcement authorities and trigger the mechanism of the Uniform Criminal Extradition Act.
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My concern about cases like Ms. Reed's, and these cases trouble me very much, is 1983 is a powerful weapon but it cannot make an insolvent man solvent.
Mr. WATT. You are giving me a speech now and I am just trying to get information.
Mr. HIRSCH. How am I doing?
Mr. WATT. I am just trying to get information because I think you do a disservice if you have us proceeding on the assumption that this Uniform Extradition law solves this problem. I don't think it does and that is. I think, why I felt a shudder go through the room, because what you are saying is a bounty hunter can't go across State lines and bring a fugitive back to another State——
Mr. HIRSCH. Correct.
Mr. WATT [continuing]. But they can still under the extradition laws go across State lines and engage in the same kind of conduct that these three victims who testified on the second panel have described.
Mr. HIRSCH. I see the distinction you are drawing, Congressman. That is a valid distinction.
Mr. WATT. I am not trying to be adversarial about it.
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Mr. HIRSCH. Not at all.
Mr. WATT. I just don't want there to be any misunderstanding about this because if what you were saying were correct, fully correct, we would be making much ado about nothing here.
Mr. HIRSCH. I see the distinction. It is a valid distinction. My concern was that this subcommittee not labor under the misimpression that what happens is a bail agent crosses State lines, grabs somebody, puts them in the trunk of the car, drives across five States and delivers him back where he came from. That can't happen. It is illegal if it happens.
Mr. WATT. Got you. Do you want me to proceed with one more question or yield back and come back?
Mr. CANADY. Sure. Without objection, the gentleman will have three additional minutes.
Mr. WATT. Mr. Stein, some people have raised a concern about a second potential victimization, not only the initial stuff that occurs here but the possibility that this bill could create a second unintended consequence and this is the description that I have. Bounty hunters often locate someone who has skipped bail on their own and then notify the individual who has posted the bail. Here is the hypothetical.
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A grandmother posts a $10,000 bail for her grandson. Bounty hunter goes and finds the grandson, calls the grandmother and says I have got this fellow here, you give me a $1,000 and you save yourself $9,000 because the $10,000 bond you have posted you can get back. It is going to cost you $1,000. I am going to make $1,000. You are going to save $9,000. Would that grandmother have potential liability under this bill if that bounty hunter had engaged in some unconstitutional conduct in grabbing her son or is there something in this bill that you believe would shield the grandmother from liability?
Mr. STEIN. Mr. Watt, in honesty I haven't a clue.
Mr. WATT. Does anybody know the answer to that?
Mr. ROCHE. May I respond to that, Mr. Watt?
Mr. WATT. I asked you because you were here on behalf of victims. What we want to do is address victims but we don't want to re-victimize them.
Mr. ROCHE. I believe we would be victimizing the grandmother in that case, particularly if she had indemnified the agent of that bond. She would be financially responsible for anything that occurred there. I think you have another victim.
Mr. WATT. How would you address that to solve that problem under the bill or is this an easy way to address it?
Mr. ROCHE. I am not sure that there is an easy way to address it. In fact, there probably would be two victims there because the bail agent involved in that transaction would also get sued, I am sure. I don't know. I don't have an answer for that. Maybe our learned counsel would address that.
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Mr. WATT. Can I raise one more question just not necessarily for an answer. Somebody suggested, I guess Mr. Hirsch again, who suggested that we simply follow the Florida lead. I take it that what you were suggesting is outlaw bounty hunters completely?
Mr. HIRSCH. Yes.
Mr. WATT. Would we have the authority to do that at the Federal level? What Federal authority would we have to do that?
Mr. HIRSCH. Well, that is an interesting question. I suppose it would depend on how the statute is structured. As Professor Nahmod pointed out earlier this statute turns on subsection 5, I believe, of the 14th amendment which affords the Congress power to enact statutes to effectuate the remedial purposes of the 14th amendment. My inclination is to say, Mr. Watt, that Congress would have the power to outlaw the conduct. Now whether it would be under commerce clause, under spending power, or under the effectuating power of the 14th amendment is something I haven't considered and I would have to consider.
Mr. WATT. Maybe I could get you to consider that and Professor Nahmod from the prior panel. It would be great if we could get his opinion back at some point. Obviously, these are just questions we are raising today but they are serious questions and we need some help with answering them. I am way over my time. Very generous and I will yield back.
Mr. CANADY. Thank you, Mr. Watt. I think you raised some legitimate questions and have answered some questions that have been raised by others. Let me just refer you in response to one of the questions that you raised concerning grandma and what would happen to grandma in the circumstances you described to an answer that was given by Mr. Drimmer in response to a similar question posed to him by Representative Scott during the consideration of this legislation in the last Congress.
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And I will just read it to you for purposes of the record here. The question there was could the surety on a bail bond be interpreted to include momma or grandma who puts up her home on a property bond for the accused. And this was the answer that Mr. Drimmer gave:
''I believe the answer is no. By its current terms the bill only applies to bail or surety bonds. The bill does not refer anywhere to any other type of bond such as property bonds, full cash bonds or deposit bonds that defendants utilize to obtain pre-trial release. Unlike surety bonds, these and other types of bonds are paid directly to the court and do not require the services of a bonding agent. Thus, the bill's restricting coverage to surety or bail bonds renders momma's house safe. As a practical matter, my years of studying this field, I have never seen a case where a friend or relative who posted collateral for a defendant's release actually hires a bounty hunter to retrieve an itinerant defendant.''
He goes on to say:
''However, it might be prudent, however, as you have wisely suggested, that is, Mr. Scott, for the committee to include in the bill a definition of surety on a bail bond. This definition should indicate that the bill covers only companies or individuals licensed by a State agency to write surety or bail bonds thereby clearly excluding momma and any other friend of relative of the defendant and I think that is a suggestion that the committee should——''
Mr. ROCHE. If that were to happen, sir, you would never have a bond written in this country. That is the reality of the matter. When they indemnify that bond, they indemnify the entire bond, and if it would come to either having grandma pay the bond for her grandson's failure to appear in court or move again for go and pick him up and put him back in jail in which case it wouldn't cost grandma anything, you would see that they would be moving against the indemnification collateral that grandma has put up.
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Mr. CANADY. I really don't understand your point. We are talking here about liability under this bill. We aren't talking about anything that affects whether who is going to issue the bond or whether the bond is going to be issued or not. We are just talking about who is going to be liable under this bill. I don't understand how limiting the liability under this bill would——
Mr. ROCHE. Nobody is more appalled by what has occurred with these victims than we are——
Mr. CANADY. But with all due respect, with all due respect, Mr. Roche, I don't think that has anything to do with the point, and I understand your—all the opponents of this bill are appalled by all these things that have happened but don't want us to do anything about it. I understand that and that is your right. We will move on to some other questions now.
Mr. Hirsch, I think Mr. Watt has clarified the point that you attempted to make. I think that is a very important clarification because we actually heard examples in our hearing last Congress, we heard of a case in New York where the bounty hunter went into New York and they took the person to the local police department and there are things that happened there but the problem, as Mr. Watt points out, is that they go into the State and grab the person and then take them to local law enforcement and the abuse takes place prior to that point, so the fact that this Uniform Criminal Extradition Act is on the books really doesn't solve that problem.
And I don't think that there is anything in the bill that is inconsistent with the Uniform Criminal Extradition Act. I am quite confident that there is nothing in the bill that is inconsistent with it. As a matter of fact, you can simply add an additional requirement of notification prior to taking any action in the State where the out-of-State warrant is being pursued. Also, in the bill in section 3 the provision on notification of law enforcement specifically provides that this requirement does not preempt any additional requirements imposed on any such surety agent or bounty hunter by that State.
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So the argument that somehow this provision of the bill would have an adverse impact on or repeal or override the Uniform Criminal Extradition Act, I just don't see that argument. Let me go to another point that was specifically made about Florida. Mr. Hirsch, Mr. Roche and I think somebody else earlier made the argument—Congressman Deutsch, made the argument that if this bill passed you would have to change the system in Florida.
Just for the record here, in Florida under the current law who can grab a skip——
Mr. HIRSCH. A licensed bail agent.
Mr. CANADY. Okay. A licensed bail agent.
Mr. ROCHE. Right. Or a temporarily licensed bail agent or a licensed bail agent. He has to have one of two licenses, either a temporary license, which is akin to an apprenticeship, or a regular license.
Mr. CANADY. Okay. So the individual who is doing it has to personally be licensed.
Mr. HIRSCH. Yes. And he is also liable for his actions. If he is arrested because he has committed a felonious crime and he is adjudicated guilty he loses the license and the right to practice the profession in Florida.
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Mr. CANADY. And so the argument, if I understood it, is that person who currently or that category of persons who currently can go apprehend someone who has skipped out on his bail when under this—your argument is under this bill we would have to—the State would have an incentive to change the law because the misconduct of that person would result in liability on the person who hired that person.
Mr. HIRSCH. No. Under the present—the proposed change in law insulates from liability the bail bondsman who employs the services of a licensed bounty hunter. In Florida we have no bounty hunters. It is against the law. And so in Florida the only way that we could afford the benefit of that protection to bail bondsmen would be now to bring back bounty hunters so that the bail agents could avail themselves of that protection.
Mr. CANADY. Okay. Well, wouldn't that problem be simply solved just by—part of the problem here goes back to—I think the confusion here results from the fact that the term bounty hunter in this bill has a broader definition than what you would typically think of as a bounty hunter. Bounty hunter in the bill is defined to mean a person other than a public official engaging in official duties who for compensation or award from a surety on a bail bond or an agent for such surety seeks to obtain or exercise custody of another person for purposes of criminal judicial proceedings. I think that is a licensed bail agent.
Mr. ROCHE. No, sir, not in the State of Florida. In the State of—well, you are correct under that definition but in the State of Florida a licensed bail agent is not considered a bounty hunter.
Mr. CANADY. Well, no, no. We are talking about for purposes of this——
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Mr. HIRSCH. I understand.
Mr. CANADY. For purposes of this law a licensed bail agent is a bounty hunter.
Mr. HIRSCH. All right. But a bail bondsman can't hire himself. He doesn't hire himself. It is not clear from the statute that if a bail agent acts himself to recover the fugitive——
Mr. CANADY. That is a legitimate point.
Mr. HIRSCH. He is protected but if he insulates himself by hiring a licensed bounty hunter he is protected. It would be unfair—in Florida we don't have bounty hunters as such. There is no one the bail agent can hire so he can't benefit himself by insulating himself from liability in that fashion. Am I expressing that clearly?
Mr. CANADY. Well, you say that the bail agent—why should the bail agent be able to insulate himself for liability for his personal misconduct. I don't understand that.
Mr. HIRSCH. Because that is what the statute provides. Your statute provides that if a bail agent hires a licensed bounty hunter, that bail agent is not exposed to the respondeat superior liability under 1983. That is what your bill provides.
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Mr. CANADY. That is correct.
Mr. HIRSCH. A Florida agent cannot avail himself of the benefit of that provision because we have no bounty hunters.
Mr. CANADY. But you have licensed bail agents.
Mr. HIRSCH. Well, I suppose bail agents could hire each other to go out and make recoveries to avail themselves of the benefit of the provisions. It makes no sense.
Mr. CANADY. I guess I don't understand your point. Your point that a bail agent should not be personally responsible for his own misconduct?
Mr. HIRSCH. Of course he should be responsible for his own misconduct, Congressman. My concern is the statute creates an anomaly. Take two States, Florida and Georgia. Georgia has bounty hunters. Florida does not. Georgia bail bondsmen who hires a licensed bounty hunter need never concern himself about liability under your 2964, agreed?
Mr. CANADY. That is correct.
Mr. HIRSCH. Okay. In Florida a bail agent is personally responsible for recovering the fugitive. We have no bounty hunters. A system that you and I can agree is better in the sense that it puts responsibility where it belongs but of course it really——
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Mr. CANADY. When you say a bail agent—is your argument here that the bill is going to impose personal responsibility on a bail agent who is guilty of—is personally guilty of misconduct?
Mr. HIRSCH. No. No, of course not.
Mr. CANADY. I don't understand your point.
Mr. HIRSCH. I apologize for not expressing it more clearly. The bill provides in effect a safe harbor position. It says that a bail bondsman who hires a license bounty hunter is in the safe harbor. Yes? Can we agree to that much?
Mr. CANADY. Well, I can read it to you. A surety or agent is not responsible for the conduct of the bounty hunter if the surety or agent takes all reasonable steps to assure that the bounty hunter is licensed in a State that requires licenses for bounty hunters or is licensed as a private investigator in a State requiring such licenses.
Mr. HIRSCH. That would cut off 1983 liability.
Mr. CANADY. That is correct.
Mr. HIRSCH. As to the bail bondsmen. So a bail bondsman who can hire a licensed bounty hunter would be wiser to do so than to make a recovery himself, wouldn't he? If I am in a State that has licensed bounty hunters, Georgia, for example.
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Mr. CANADY. Well, only if the licensed bail agent is going—thinks he is likely to go out and do something and subject himself to liability.
Mr. HIRSCH. Not at all, Congressman. Why take any chances? None of us can guarantee the future. If I am a licensed bail bondsman even though I try always to do good and never to do evil if I know that I can cut off any liability whatever by hiring a licensed bounty hunter and that I can't cut off liability that I take my chances, however good I try to comport myself, if I act on my own behalf I would be very foolish not to hire a licensed bounty hunter in every case, wouldn't I?
Mr. CANADY. I don't know about that but, I think, I understand the point you are making and I see it now but I am skeptical that it would have the impact that you are suggesting. And again your answer, I guess your answer for that is that——
Mr. HIRSCH. Bring back bounty hunters in Florida.
Mr. CANADY. Pardon?
Mr. HIRSCH. Bring back bounty hunters in Florida.
Mr. CANADY. No, that is not your answer. Your answer, if I understand your testimony, is not to have the licensed bail agent responsible for his personal misconduct.
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Mr. HIRSCH. Oh, no, that certainly is not my position. Under present law——
Mr. CANADY. Well, it is your position that he should not be responsible under section 1983 for his personal misconduct.
Mr. HIRSCH. Not as a matter of law if he conducts himself in such a fashion as to bring his conduct within the ambit of 1983, then he must take the consequences.
Mr. CANADY. I guess my idea about this is that when there is a warrant that has been issued, and that is why they go and get these folks, right? Somebody skips.
Mr. HIRSCH. Right.
Mr. CANADY. And a warrant is issued.
Mr. HIRSCH. Typically.
Mr. CANADY. Typically. From my perspective they are acting under color of law, and I understand that there—we wouldn't be having this discussion if the courts had held that.
Mr. HIRSCH. Correct.
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Mr. CANADY. But I think that is a common sense approach to it. They are acting pursuant to that legal authority and I think the anomaly is not in the bill but is in the current state of the law which exempts this class of people who are carrying out an essential State function which is apprehending fugitives from justice. If that is not an essential State function, I don't know what is, which exempts them from liability under the Federal civil rights laws when in the process of carrying out that function they abuse people's civil rights.
That is why we are here today. That is why we are having this discussion. I do understand your point about the impact that this would have on bail agents in Florida. It seems to me that they ought to be responsible under the Federal law. The point I don't think has any force against the bill but obviously that is what is the subject of our discussion here. And I think we are probably going to have to agree to disagree on that subject. Let me ask Mr. Watt if he has any additional questions.
Mr. WATT. I don't think so, Mr. Chairman. It has been a fascinating hearing and I still have some questions about my $10,000 grandma. I think having reread the provisions and what this bill covers, I still have some reservations about whether Mr. Drimmer's response is satisfactory to Mr. Scott's question from 2 years ago. Mr. Scott just walked in the room.
Mr. CANADY. Well, let me just say that I think that Mr. Drimmer's final comment about that was a suggestion to amend the bill to define the terms in the bill so that the grandmother would not necessarily be included.
Mr. WATT. And we may need to do that.
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Mr. CANADY. I agree that that is something that we should consider. Well, let me again thank all of you for taking the time to be here. Your testimony has been very valuable. This is an interesting and complex area of the law and I think that the bail bonds industry is not well understood and I think having a hearing in this Congress following up on the one last year has been helpful to the subcommittee.
If any of you wish to make additional submissions to the committee in response to issues that have been raised here today, that goes for any of the witnesses, you are certainly welcome to do so. We would appreciate any additional input that you may wish to provide to us. We thank you very much. The subcommittee stands adjourned.
[Whereupon, at 4:50 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
| The Saint Mary Parish, |
| Wilmington, NC, March 22, 2000. |
Mr. PAUL TAYLOR, Counsel,
Subcommittee on the Constitution,
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Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. TAYLOR: It was a pleasure to talk with you today and to discover that someone cares about the plight many of our US citizens are being placed in by these ''rogue bounty hunters'', my definition is they are in a power-filled job to make up for other inadequacies in their lives.
I am enclosing copies of letters sent to NC State Representatives, NC State Senators, the NC Attorney General, the Insurance Commissioner, who regulates bail bondsmen, the Wilmington Journal, the Wilmington Star, New Hanover Sheriff Joe McQueen,Wilmington Chief of Police John Cease, Wilmington Mayor Pro-Tem Katherine Moore, TV Channel 3 and 6, and New Hanover County Commissioners Chair Person Bill Caster.
Thanks again for your help and I would be willing to do whatever I am able to help you in this endeavor.
Sincerely,
| Father Drew Perry, Parochial Vicar. |
| The Saint Mary Parish, |
| Wilmington, NC, March 15, 2000. |
Mr. WILLIAM ''BILL'' CASTER, Chair,
New Hanover County Commissioners,
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Wilmington, NC.
DEAR MR. CASTER: I am writing you this letter in hopes that you will be able to do something about the rude, crude and inhuman behavior I saw exhibited on Tuesday, March 14, 2000 in Oleander Memorial Gardens by two bonds bailsmen and a New Hanover County Sheriff. I shall attempt to present this in more detail in the next few paragraphs.
I am a Roman Catholic priest who was conducting a grave side service for adult family members, who had experienced the death of their father and being this is their first experience with the death of a parent, they were having quite a difficult time. Within minutes after we had concluded the services for their deceased father, a N.H. County Sheriff began coming toward the grave site, I thought he was late and wanted to pay his respects, then I saw these two men, later to find out that they are bail bondsmen, advance quickly toward the family, and many of the males members of the family rushed toward these two bondsmen. All were screaming words at each other and evidently one of the males in the funeral party ran away, and the sheriff and bondsmen ran after him with the family in hot pursuit. I was unable to see exactly what happened but a couple of the male family members came back with shirts torn off, one with blood on the side of his neck, and one of the females was arrested by the sheriff. I was also told some male member was sprayed with ''pepper''. Wilmington City police were called and the cars that had just brought the deceased to the cemetery arrived to assist the sheriff, as I understand the sheriff put out a call that he needed assistance. The Wilmington police were unaware of the situation except that a sheriff had called for assistance.
I was also informed by family members that these bondsmen, with pistols drawn, had come into the ICU unit at NHRMC, where their father was in isolation.
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I find this type of behavior, as exhibited by the bail bondsmen and the NH Sheriff, to be typical of those behaviors, developing in our United States of America, which exhibit a lack of concern and a lack of respect for others. Disrespect begets disrespect.
I, for one, was so terribly shocked by the lack of concern for a grieving family and a lack of respect for the deceased that I phoned 911 and was told that they were involved in emergency transmissions at present but that they would inform the NH County Sheriff Department as soon as possible about my concern. A sergeant of the NH County Sheriff's Department later contacted me and I expressed to him my disbelief and concern for their involvement in this sacrilege. I was informed that when the Sheriff's Department is called to help, as these bondsmen reportedly have done, they were bound to respond. I went on to tell the sergeant that the sheriff should have had this procedure delayed until at least after the family members had left the cemetery. I was told hindsight is 20/20, which I personally believe to be a ''cop-out''.
I wish to once again express my disbelief that this type of behavior is allowed and /or condoned by the NH County Sheriff and ask you to pass some type of laws that will prevent these ''non-caring, money hungry, brutes,'' disguised as bail bondsmen from being able to carry on such as this and clip their wings and MAKE them become law-abiding citizens. I am told that even the Law Enforcement Personnel are unable to exhibit this type of behavior and other behaviors, e.g. breaking down doors, attacking people in public, etc., that these bail bondsmen are able to get away with.
If I were able to do anything about these bail bondsmen, personally, I would remove any and all licenses and/or authority from them and give the moneys saved from their ''bounty-hunting'' to those Police and Sheriffs, who deserve a better salary for the wonderful jobs they are doing. I thank you for reading my concerns and do hope and pray that you will be able to stand up for the rights of the people and remove these bail bondsmen and all bail bondsmen from New Hanover County.
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Sincerely,
| Father Drew Perry, Parochial Vicar. |
cc:
Katherine Moore, Mayor Pro-Tem
Joe McQueen, Sheriff New Hanover County
John Cease, Wilmington Chief of Police
Kim Ratcliff, Channel 3 News
Tricia Vance, Wilmington Star News
Mike Easley, Attorney General North Carolina
Rayford Brown, Channel 6 News
Mary Alice, Wilmington Journal
| The Saint Mary Parish, |
| Wilmington, NC, March 22, 2000. |
Mr. JIM LONG, Insurance Commissioner,
Raleigh, NC.
DEAR COMMISSIONER LONG: I am writing to ask your assistance with a problem that I believe has gotten out of hand in our ''Tar-Heel'' State and that is our allowing the bonds bailsmen (bounty hunters) to become violators of the dignity of our citizens.
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I will inform you of one incident that happened in my presence and am assured that there are many more such incidents that are in need of investigation and correction.
I am a Roman Catholic priest in Wilmington, NC and was conducting a grave side service for one deceased Michael John Marchese after having had the Funeral Mass in St. Mary Church a short time before. I was speaking with the family and all of a sudden a New Hanover County Sheriff and 2 men, later I discovered were bondsmen (bounty hunters), came running toward a family member who was fleeing. I later found out that this family member, Peter Marchese, had jumped bail to try to be with his dying father. He, Peter, had been bonded on traffic violations, e.g. fictitious tags, inspection violations, and driving on a revoked license—according to New Hanover County Magistrate's Office. One of the bounty hunters, a Thomas Hoefler of Castle Bail Bonds, had been charged on January 5 with assault with a deadly weapon and is accused of slashing a man with a knife in the first block of Front Street at about 2 am, according to Wilmington Police reports. He, Hoefler, also used pepper spray on one of the deceased's daughters and has been charged with again assault on a female, by the deputies, according to the magistrate.
I cannot explain how this invasion has affected this family and me. These actions were uncalled for and I ask you, not to form a committee to investigate if laws need to be changed, but to change the laws to prevent any others to have to suffer at the hands of these ''criminals'' disguised as bondsmen. I, for one, would like to see the bondsmen done away with and the moneys they receive to be given in salaries to our police and sheriffs, who are much more deserving than those bounty hunters.
I thank you for your consideration and cooperation to rid our fair state of such ''brutes'', who evidently enjoy using a power play over our citizens to, I believe, compensate for their own inadequacies.
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Sincerely,
| Father Drew Perry, Parochial Vicar. |
| The Saint Mary Parish, |
| Wilmington, NC, March 22, 2000. |
Representative THOMAS WRIGHT,
Raleigh, NC.
Dear Representative Wright: I am writing to ask your assistance with a problem that I believe has gotten out of hand in our ''Tar-Heel'' State and that is our allowing the bonds bailsmen (bounty hunters) to become violators of the dignity of our citizens.
I will inform you of one incident that happened in my presence and am assured that there are many more such incidents that are in need of investigation and correction.
I am the Roman Catholic priest in Wilmington, NC who was conducting a grave side service for one deceased Michael John Marchese after having had the Funeral Mass in St. Mary Church a short time before. I was speaking with the family and all of a sudden a New Hanover County Sheriff and 2 men, later I discovered were bondsmen (bounty hunters), came running toward a family member who was fleeing. I later found out that this family member, Peter Marchese, had jumped bail to try to be with his dying father. He, Peter, had been bonded on traffic violations, e.g. fictitious tags, inspection violations, and driving on a revoked license—according to New Hanover County Magistrate's Office. One of the bounty hunters, a Thomas Hoefler of Castle Bail Bonds, had been charged on January 5 with assault with a deadly weapon and is accused of slashing a man with a knife in the first block of Front Street at about 2 am, according to Wilmington Police reports. He, Hoefler, also used pepper spray on one of the deceased's daughters and has been charged with, again, assault on a female, by the deputies, according to the magistrate.
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I cannot explain how this invasion has affected this family and me. These actions were uncalled for and I ask you, not to form a committee to investigate if laws need to be changed, as you commented in the Wilmington Star dated March 19, 2000, but to change the laws to prevent any others to have to suffer at the hands of these ''criminals'' disguised as bondsmen. I, for one, would like to see the bondsmen done away with and the moneys they receive to be given in salaries to our police and sheriffs, who are much more deserving than those bounty hunters.
I thank you for voicing concern, however, we need to rid our fair state of such ''brutes'', who evidently enjoy using a power play over our citizens to, I believe, compensate for their own inadequacies and not become bogged down in some bureaucratic commission to study what needs to be done, because we need to act mightily and quickly.
Sincerely,
| Father Drew Perry, Parochial Vicar. |
[NOTE: The preceding letter was also sent to: Rep. Danny McComas, Rep. Dewey Hill, and Sen. Luther Jordan.]
| The Saint Mary Parish, |
| Wilmington, NC, March 22, 2000. |
Senator PATRICK BALLATINE,
Raleigh, NC.
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DEAR SENATOR BALLANTINE: I am writing to ask your assistance with a problem that I believe has gotten out of hand in our ''Tar-Heel'' State and that is our allowing the bonds bailsmen (bounty hunters) to become violators of the dignity of our citizens.
I will inform you of one incident that happened in my presence and am assured that there are many more such incidents that are in need of investigation and correction.
I am the Roman Catholic priest in Wilmington, NC who was conducting a grave side service for one deceased Michael John Marchese after having had the Funeral Mass in St. Mary Church a short time before. I was speaking with the family and all of a sudden a New Hanover County Sheriff and 2 men, later I discovered were bondsmen (bounty hunters), came running toward a family member who was fleeing. I later found out that this family member, Peter Marchese, had jumped bail to try to be with his dying father. He, Peter, had been bonded on traffic violations, e.g. fictitious tags, inspection violations, and driving on a revoked license—according to New Hanover County Magistrate's Office. One of the bounty hunters, a Thomas Hoefler of Castle Bail Bonds, had been charged on January 5 with assault with a deadly weapon and is accused of slashing a man with a knife in the first block of Front Street at about 2 am, according to Wilmington Police reports. He, Hoefler, also used pepper spray on one of the deceased's daughters and has been charged with, again, assault on a female, by the deputies, according to the magistrate.
I cannot explain how this invasion has affected this family and me. These actions were uncalled for and I ask you, not to form a committee to investigate if laws need to be changed, but to change the laws to prevent any others to have to suffer at the hands of these ''criminals'' disguised as bondsmen. I, for one, would like to see the bondsmen done away with and the moneys they receive to be given in salaries to our police and sheriffs, who are much more deserving than those bounty hunters.
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I thank you for your support and hope that you will be able to help us to rid our fair state of such ''brutes'', who evidently enjoy using a power play over our citizens to, I believe, compensate for their own inadequacies and not become bogged down in some bureaucratic commission to study what needs to be done, because we need to act mightily and quickly.
Sincerely,
| Father Drew Perry, Parochial Vicar. |
[NOTE: The preceding letter was also sent to: Sen. R.C. Soles, Rep. Edd Nye, and Rep. David Redwine.]
Article reprint: Our Views, March 19, 2000.
COWBOY BONDSMEN NEED TO BE LASSOED
Several state legislators say laws governing the conduct of bail bondsmen need to be tightened.
It's hard to avoid that conclusion.
The raiding of a grave side funeral service by bail bondsmen this week was merely the latest in a series of incidents over the past few years.
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Bondsmen have twice been accused of breaking into people's houses and scaring them half to death while looking for the wrong person. Another chased a bail-jumper across the grounds of a middle school; a jury acquitted him of charges that he carried a gun onto school property.
Local law enforcement authorities, apparently happy to have private help in rounding up unsavory characters who don't show up for court, seem unperturbed.
So does the office of N.C. Insurance Commissioner Jim Long (which regulates the business.)
In this election year, even some legislators seem rather calm about this issue; maybe they don't want to be accused of being soft on criminals.
Rep. Thomas Wright, a Wilmington Democrat, says other state officials should look into the matter and make suggestions to the General Assembly.
Sen. Luther Jordan, another Wilmington Democrat, says a legislative study commission should ponder it.
Rep. Danny McComas, a Wilmington Republican, says the latest incident, ''coming on the heels of these (other) examples, would maybe merit some review of the laws.''
Rep. Dewey Hill, a Democrat whose district includes parts of Wilmington, was most direct. ''This is something the General Assembly needs to look at,'' he says.
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Indeed it does. Bondsmen are entitled to go after people who owe money. They should not be entitled to desecrate funerals, knock down doors and chase people across school grounds.
That's the kind of thing that could get somebody killed—and not necessarily the fleeing crook.
Article reprint: Wilmington Morning Star, March 17, 2000.
FUNERAL DISRUPTED
LAWMAKERS SAY INCIDENT WARRANTS LOOK AT BONDSMEN
BY MARK SCHREINER
Assistant City-Editor
Members of New Hanover County's delegation to the General Assembly say that Tuesday's scuffle between mourners and a bail bondsman, at a Wilmington cemetery, highlights a need to review state law.
''This is something the General Assembly needs to look at,'' said state Rep. Dewey Hill, whose 14th District includes portions of Wilmington. ''Laws are put on the book, but times change. Sometimes the law doesn't, fast enough.''
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State law, as is the case through most of the country, gives bondsmen also known as bail enforcement agents or bounty hunters-rights to arrest and detain people who have failed to appear in court or otherwise don't honor their bond.
North Carolina's bail bond laws, codified in the 1960's and subsequently updated are based on old common law practices. Recent events, like Tuesday's row in Oleander Memorial Gardens and the 1998 case of a bond enforcement agent who crossed public school property to apprehend a man, raise the notion that changes may be necessary, state senators and representatives from the Wilmington area say.
''I don't know if a legislative solution is entirely, the answer,'' said state Rep. Thomas Wright, a Democrat from Wilmington. ''This is certainly something for the Administrative Office of the Courts and the attorney general to study, review and make recommendations to the General Assembly.''
On Tuesday, agents representing Castle Bail Bonds tried to corner 21 year-old Peter Marchese at the funeral of his father. There was a scuffle. When it was over, Mr. Marchese had escaped and bondsman Thomas Hoefler found himself charged with assault on a female.
Mr. Marchese had been out on $1,800 bond for two counts of failure to appear in court related to several motor vehicle violations, according to records. This week, he turned himself into authorities and is now free on another bond.
State Sen. Luther Jordan of Wilmington, a mortician, said he has been approached in the past by police officer, sheriff's deputies and bond agents wanting to make arrests at his services. ''They will call us and tell us they have someone under surveillance,'' he said Thursday. ''They notify us so we won't be caught off guard, but we don't participate and it can usually take place quietly on the way out.''
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Sen. Jordan believes, a legislative study commission would be the best way to investigate whether changes are needed to the law.
In the General Statutes, the applicable law is found in Article 71, which governs the bail bond system. Subsection 30 gives licensed bondsmen the power to arrest a defendant to prevent the forfeiture of a bond.
A 1981 state court case found that bond enforcers are not law officers and thus do not have to administer Miranda warnings. Courts have also found that bond enforcers may ''overcome the resistance of third parties'' to make an arrest. The force they use must be ''reasonably necessary''.
They must also obey other state laws while making arrests. A new Hanover County jury found a bond enforcer did not carry a gun on school grounds following a trial in October 1998. Even so, the incident showed the stormy relations between, prosecutors, law officers and bail bondsmen. Prosecutors said they were seeking to punish violators of the law; bail agents said fallout from the case would make school property sanctuaries for the wanted.
''This, coming on the heels of these examples, would maybe merit some review of the laws,'' said state Rep. Danny McComas of Wilmington, a Republican.
(Footnote 1 return)
The Bill thereby eliminates the current capacity of bondsmen to engage in ''rent-seeking,'' the economic term applied to an actor who minimizes overall public welfare by seeking individual gain from illegitimate sources.
(Footnote 2 return)
Congressional action will also help to resolve a dispute among courts interpreting the laws Congress has enacted. Some courts, like Jackson, have found §1983 to be applicable to bondsmen and bounty hunters, while others have been constrained by the narrow and technical applications of the state action tests. See Dean v. Olibas, 129 F.3d 1001, 1006 (8th Cir. 1997); Landry v. A-Able Bonding, Inc., 75 F.3d 200, 205 (5th Cir. 1996); Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550–55 (9th Cir.1974).
(Footnote 3 return)
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); 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).
(Footnote 4 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). In addition, in each of North Carolina, Florida, and South Carolina, bail recovery agents are called ''runners,'' have mandatory licensing requirements, and only can work for one bondsmen at a time who must supervise their work.
(Footnote 5 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 6 return)
See Maynard v. Kear, 474 F. Supp. 794, 802 (N.D. Ohio 1979)(stating that a bondsman can arrest a defendant ''at any time and at any place'' and in any state without obtaining a warrant); State v. Nugent, 508 A.2d 728, 732 (Conn. 1986) (noting that a bondsman may forcibly enter a defendant's home at night to apprehend the defendant because ''he requires no legal process'' and the capture ''is not a matter of criminal procedure'' (citation omitted)); State v. Vinson, No. C–840914, 1985 WL 8854, at *2 (Ohio Ct. App. Nov. 27, 1985)(per curiam) (citing with approval a United States Supreme Court decision stating that bondsmen may break and enter into a defendant's home without the need for ''new process'' (citing Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1872))).
(Footnote 7 return)
However, under this interpretation, the statute only could include a reward seeker for purposes the ''color of state law'' provision, and not the provision creating the agency relationship between a bondsman and a bounty hunter. This latter provision clearly indicates that only individuals actually acting on behalf of a bondsman will be agents of that bondsman.
(Footnote 8 return)
Of course, as an important caveat, if the police make such a warrantless arrest, any seized during such an entrance, if not on the defendant's person, likely will be inadmissible. See Payton v. New York, 445 U.S. 573 (1980).
(Footnote 9 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.