MILTON HIRSCH, P.A.

ATTORNEY AT LAW

Two Datran Center, Suite 1504

9130 South Dadeland Boulevard

Miami, Florida 33156

Tel: (305) 670-0077

Fax: (305) 670-7003

March 28, 2000

Hon. Charles T. Canady

Chairman, Sub-committee on the Constitution

Committee on the Judiciary

House of Representatives

Congress of the United States

RE: H.R. 2964, the "Bounty Hunter Responsibility Act of 1999"

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.

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.

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.

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.

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.

Respectfully submitted,

Milton Hirsch

Suite 1504, Datran II

9130 S. Dadeland Blvd.

Miami, FL 33156

(305) 670-0077