March 19, 1998

Representative Robert Scott

2464 Rayburn House Office Building

Washington, D.C. 20515-4603

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.

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,

Jonathan C. Drimmer

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.

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.

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. 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.

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.").

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.

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. 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. 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.

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. 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?

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, 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.

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.

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."

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).

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. 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.

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.

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.

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.