on H.R. 2964, the Bounty Hunter Responsibility Act of 1999

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.

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.

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

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. 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.

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).

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.

When Man Hunts Man is a comprehensive attempt to study the history and legal rights of bounty hunters in the United States. It examines the frequent abuses bounty hunters currently inflict on the American public, and recommends that bounty hunters and the bail bondsmen who hire them be considered state actors based on the vital role both play in the American criminal justice system.

Beginning in Medieval England, bounty hunters, and the bondsmen who hire them, have served as state proxies in the pretrial criminal process. After a felony arrest, most defendants, to be released from prison until trial, hire a bondsman to post a bail bond with the court. The state then delivers legal custody of the defendant to the bondsman, whose bond is refunded only if the defendant returns to court for trial. When the state gives the bondsman custody of a defendant, it recognizes comprehensive powers to search for and arrest that defendant. To guarantee that defendants properly appear in court, bondsmen often employ professional bounty hunters who share the bondsmen's sweeping powers.

These rights have largely remained unchanged since the United States adopted England's common law rules regarding defendants on bail following the Revolution. Those common law rules, in turn, came to resemble their present state in England in the Thirteenth Century when sheriffs would release defendants into the custody of sureties.

As stated by the Supreme Court in Taylor v. Taintor, 83 U.S. 366 (1873), bondsmen and bounty hunters have the legal right to arrest a defendant before or after a trial date, to break into the defendants home to make such an arrest, and to imprison a defendant until custody can be transferred back to the state. In fact, bounty hunters generally can break into the home of a third party if the defendant is inside, and are entitled to use all reasonable force to subdue a defendant -- including deadly force where necessary, similar to the police.

Courts historically have construed these rights to derive not from any state or judicial process, but to be implicit in the very nature of bail. Thus, whenever bail is posted for a defendant, the law presumes the existence of a contract under which the defendant is deemed to consent to being arrested by the bondsman or his agent at any time, in any place, for any reason, using all necessary force. This presumption exists regardless of whether there is an actual bail contract or the defendant is aware of the rights he is deemed to forfeit.

Because the law considers the rights of bounty hunters to emanate from private contract, courts have traditionally refused to recognize bounty hunters or bondsman as state actors. Accordingly, bounty hunters are not subject to the constitutional restrictions of police officers who perform the very same search and arrest functions. These restrictions include the Fourth Amendment's warrant, search and seizure, and knock and announce requirements, and the Fifth Amendment's proscription on improper interrogations. They also include the Constitution's Interstate Extradition Clause, which thus allows bounty hunters simply to seize a defendant and transport him over state lines without notifying the police or any public official of the arrest.

At the same time, although bounty hunters essentially are enforcing a debt owed by the defendant to the bondsman, bounty hunters enjoy substantially greater authorities than ordinary debt collectors. While such debt collectors are private citizens and not subject to the constitutional restrictions of police officers, the Federal Debt Collection Procedures Act ("FDCPA"), 15 U.S.C. § 1692-1692o, strictly and comprehensively regulates the types of contacts debt collectors may initiate with debtors. Among its provisions, the FDCPA prohibits collectors from making threats, physical assaults, and oral or written misrepresentations. The Act also requires that debt collectors offer a "mini-Miranda" statement when confronting a debtor, which includes informing the debtor that the collector is seeking to enforce a debt and that any statements by the debtor can be used against him for that purpose. See 15 U.S.C. § 1692(e)(11). Moreover, regardless of the contractual terms between a debtor and lender, debt collectors who search debtors' homes without consent, or attempt to restrain debtors physically, can be civilly and criminally liable. In stark contrast, bounty hunters have the authority to break into a defendant's home at any time, arrest the defendant, lawfully search for and seize any evidence within the defendant's home, and attempt to elicit from the defendant incriminating statements for use at trial without providing any Miranda warnings.

While bounty hunters enjoy substantially broader rights than either the police or private debt collectors, they rarely are subjected to any state regulations, such as licensing requirements, training requirements, and background checks. That lack of governmental oversight has resulted in common, nationwide abuse at the hands of bounty hunters. Such abuses include bounty hunters' violent and sometimes deadly infliction of excessive force against defendants, bystanders, and innocent victims alike; bounty hunters' terrorizing startled bystanders and innocent victims by breaking into their homes and drawing their weapons; bounty hunters' arresting innocent victims and transporting them over state lines; and bounty hunters' causing significant and unnecessary property damage.

In seeking a solution to these abuses, outlawing bounty hunting or significantly curtailing their rights would be imprudent. Bounty hunters perform a useful social function in arresting frequently dangerous fugitives at no cost to the state or taxpayers. Based on bounty hunters' focused expertise and economic incentives in seeking to recapture bail jumpers, the return rate for defendants released on private bail is significantly higher than for defendants released from jail through other methods.

In addition, bounty hunters and bondsmen are crucial to the bail process; indeed, without them, the bail system would be a nullity. Bondsmen largely determine whether a defendant even will be released on bail before trial, and it frequently rests solely with bounty hunters to guarantee that these defendants return to court for trial. In light of mounting and competing costs associated with law enforcement and pretrial detention, in conjunction with prison overcrowding and a high national crime rate, bondsmen and bounty hunters also save the public significant sums of money.

The most reasonable alternative to eliminating the powers of bounty hunters while nonetheless protecting the American public from the current and routine abuses and allowing bounty hunters and bondsman to continue their vital public services is to recognize bounty hunters as state actors. Like private prisons, which also play an important role in the criminal justice process, bounty hunters should be subjected to the same restrictions as other public officials in carrying out their important functions. These would include the restrictions associated with the Fourth and Fifth Amendments, as well as the Interstate Extradition Clause. Such restrictions not only would create a modicum of protections to the American citizenry, but would allow for the abiding benefits bounty hunters and bondsmen currently provide.

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.

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.

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

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.

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.

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).

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.

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

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 (5^th Cir. 1996).

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.