H.R. 2964

Testimony in Opposition

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."

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.

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.

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.

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.

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.

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.