Bail & Bounty-Hunters - for real?

Factual Questions
21

“Okay, Mojo says they’re private operators, therefore the Constitution doesn’t restrict them. Xgemina says they are enforcing a warrant, which to my mind would make them the agent of the state and therefore subject to the Constituion.”

“I still don’t get it. (I’m not trolling; I’m genuinely baffled.)”

For very good reason.

Many people think that bounty hunters should be considered to be acting under color of law and thus be subject to the 14th Amendment due process requirements. The trend of case law in the 20th Century has been towards considering private parties acting under the authority of state law to be state actors. “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” U.S. v. Classic, 313 U.S. 299, 326 (1941).

The problem arises because the last case on point (that is, dealing directly with the status of bounty hunters and their actions) is that U.S. Supreme Court case from 1873. This case is binding on the state and federal courts, and there is only one way to change this:

  1. A court decides, contrary to that precedent, that bounty hunters are acting under color of law and holds them liable as such for their actions.

  2. The bounty hunters (if they are being sued or charged) or the government prosecutor (if the criminal case against the bail jumper is dismissed on the basis of the bounty hunters’ misbehavior) appeals this decision.

  3. The case proceeds through the appellate process to the U.S. Supreme Court.

  4. The Supreme Court decides that this case, out of the hundreds of petitions it receives every year, is important enough to accept.

  5. The Supreme Court hears the case and finds the bounty hunters to be state actors.

In the fictional scenario on “Law & Order,” the problem was that the judge was reluctant to go against precedent, and found the bounty hunters actions to be legal even though the judge clearly would have liked to find the other way if it weren’t for the Supreme Court case from 1873.

Another problem is that, if a court DID ignore the precedent and find the bounty hunters to be subject to the 14th Amendment, the bounty hunters may decide to “bite the bullet” and let this individual case go rather than appeal and risk setting a sweeping precedent against them. Of course, their willingness to “grin and bear it” depends on whether they are facing a civil judgment that their insurance will pay, a judgment including millions in punitives that insurance won’t cover, or a criminal conviction with a prison sentence. (^:

22

that’s my point - if he chooses not to perform, he pays damages. The other party to the contract can’t send goons to Mr. Williams’ hotel room, have them stuff him in the trunk of a car, and bring him to the venue. You can’t, by contract, forfeit your liberty in this way - at least, not under the laws I operate under.

Mojo and John: have I got this right?

a. the state must respect the constitutional rights of individuals, including the right to counsel (for which Miranda is a handy shorthand).

b. when the state delegates to police officers the power to arrest an individual by warrant, those officers must similarly respect the individual’s constitutional rights.

c. but when the state delegates to private individuals the power to arrest another person by warrant, those private individuals are not required to respect the arrested person’s constitutional rights?

can part of the problem here be that the USSC decision in question predates cases of selective incorporation under the 14th Amendment (like Mapp v. Ohio), which held that the states must respect the Bill of Rights? This suggestion just now occurred to me, reviewing the posts.

at any rate, thank you all for your attempts to get it through my thick skull. I’m still baffled, and saying thank God for Sir John A Macdonald.

23

[[Thanks for the info. Your answer to the first point leads me to ask another question: can bail be denied solely for flight risk/danger to the community, even if the accused has the cash?]]

Danger to the community is a dicey reason (although it has been approved by the US Supreme Court), but I’m pretty sure the answer is also yes regarding an unreasonable risk of flight. As PapBear suggests, bail may be totally denied for murder (in general, capital crimes, even when there is no death penalty).

I’m tired, though, so maybe there are exceptions. The bounty hunter thing is very interesting (and beyond my immediate powers of reason).

24

As much as I decry the loss of civil liberties ( I am a BIG Liberal ), I understand how these guys/gals flourish. State laws are so contorted,that law officers from one town to another are frequently bound from finding a felon on the run. I read the hyperlink about the abuses of bounty hunters, it only makes me more terrified of them.
Typer

25

If the case were to go before the Supreme Court today, I think that they would probably reverse their earlier decision. However, it hasn’t gotten all the way there because:
-the criminal in question is usually facing more severe charges that take precedent over a bail bond issue.
-Not many people care if an accused criminal who skipped out on their trial has had their due process violated.
-Cases where an innocent victim was harmed are easily decided/settled way before the Supreme Court.

So on a. and b. you would be correct. On point c. it was probably a reflection of the times and would not hold today. This is pure speculation though.

26

Ooh, I have a bounty hunter story!!!

Once upon a time, I (at age 16) had a brief relationship with a particularly unscrupulous member of the Philadelphia PD (at age 27). (He was also a cross-dresser by night at a gay bar, but that’s besides the point.)
Anyway, besides for having a particularly bizarre and shady lifestyle, he was in the business of selling (probably not legally) bounty hunter badges to whomever wanted one…to some VERY weird and shady people indeed.

The end.

27

Another consideration (not, I believe, utterly without legal weight) is that, except in cases of mistaken identity (in which case the bounty hunter is unquestionably in big trouble), there’s no presumption of innocence. If the guy’s a fugitive, he is ipso facto guilty of being a fugitive. (Hairy cases involving a “fugitive” who was actually kidnapped or suffering from amnesia or multiple-personality disorder might make for good TV movies, but don’t have much influence on law.)

John W. Kennedy
“Compact is becoming contract; man only earns and pays.”
– Charles Williams

28

John, are you sure about this? When he comes to trial for skipping, surely he’d have the presumption of innocence? What’s the difference between an arrest warrant for someone who skips, and someone who’s wanted on a pending charge of bank robbery? In both cases, there hasn’t been a trial on the underlying criminal offence, and the Crown would have the onus of proof. In either case, if the police arrest on the warrant, they would have to Mirandize and respect the fugitive’s other constitutional rights?

29

Erratum: for “Crown” in the above post, read “DA.”

30

I believe the rules for contempt of court may be involved here. As you may recall, contempt of court means pretty much whatever a judge says, and you’re guilty if the judge decides you are.

The underlying offense doesn’t come into it. Innocent or guilty, if you skip, you’re giving the justice system the finger.

John W. Kennedy
“Compact is becoming contract; man only earns and pays.”
– Charles Williams

31

But contempt of court isn’t a simple idea – it’s a legal concept, so of course it can’t be simple. (^:

Seriously, there are two kinds of contempt, which are very different in purpose, procedure, and effect.

“Civil” contempt is when a person disobeys and continues to disobey a court order, so they are locked up or fined UNTIL they obey. It’s not intended to be punishment for disobedience but a remedy for the party who obtained the order, and that’s why it’s called “civil.” The contemnor (the person who committed contempt) is said to “have the keys to his cell” since as soon as the contemnor obeys, the fine or detention ceases. Civil contempt is treated as part of the underlying case because the contempt is inherently linked to the court order issued in the underlying case.

“Criminal” contempt is punishment for past disobediance of a court order or a general violation of the peace & dignity of the court. The fine or detention is for a fixed period, unlike civil contempt. Except for small fines or short detentions, criminal contempt cases are supposed to be referred to a different judge for a separate criminal trial. This is because:

  1. as JWK said, contempt is a separate crime from the underlying criminal offense that the person is on trial for; and
  2. giving the case to another judge avoids both the “contempt is whatever the judge says it is” problem and the appearance of impropriety from having a judge who was, for example, spat on in open court decide the fate of the spitter. (^:
32

-Warning this is going to be a long post-

First of all the 1873 case that John B. talks about is: Taylor v. Taintor, 83 US (16 Wall) 366, 21 LEd 287 (1873)which stated:

When bail is given, the principal [defendant] is regarded as delivered to the custody of his sureties [bail bondsman]. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose.
Taylor, 83 US (16 Wall) at 371, 21 LEd at 290.

From what I understand this is derived from common law. However most states now have statutory law now regulating the Bounty hunters.

I got curious so I looked up the statutes in my state: South Dakota (which may be substantially different from other “civilized” states)

First of all there are no “bounty hunters” in SD, we have “runners” who work only for a specific bail bondsman and can only go after bail jumpers that used their bondsman.

To be a runner one must:
(1) That the applicant is a natural person who has reached the age of twenty-one years;
(2) That the applicant is a citizen of the United States and has been a bona fide resident of this state for more than one year last past;
(3) That each appointing bail bondsperson is obligated to supervise the applicant’s activities, and be responsible for the applicant’s conduct in the bail bond business; and
(4) That the applicant has not been convicted of, nor has pled guilty or nolo contendere to, a felony or of any crime involving moral turpitude. The director of the Division of Insurance may waive the restriction relating to the conviction of, or plea of guilty or nolo contendere to, a felony or a crime involving moral turpitude if three years have elapsed since completion of the sentence imposed by the court in connection with the violation.
SDCL 58-22-12

-the runner must pay a $10 license fee, have his photo and finger prints placed on record and pass an exam (mostly dealing with the financial side of the business - what can you accept as sureties, advertising, can’t recomend lawyers, etc…)
Bail bondsmen and runners are licensed from the Insurance Dept of the state.

Second- the power of arrest by a runner.
SDCL 23A-43-29. Arrest of defendant by surety on violation of conditions - Recommitment and discharge of surety.

Any defendant who is released on the execution of an appearance bail bond with one or more sureties may, if he violates the conditions of his release, in vacation, be arrested by his surety, delivered to a law enforcement officer, and brought before any committing magistrate. At the request of such surety, the committing magistrate shall recommit the defendant to the custody of the law enforcement officer, and endorse on the recognizance, or certified copy thereof, the discharge and exoneretur of the surety. The person so committed shall be held in custody until discharged by due course of law.

A bail bondsman (or runner, acting for his bondsman) is the surety.
How can the runner, who is not a law enforcement officer arrest someone? By using a citizens arrest:

SDCL 23A-3-3. *Arrest - Citizen’s arrest.
Any person may arrest another:
(1) For a public offense, other than a petty offense, committed or attempted in his presence; or
(2) For a felony which has been in fact committed although not in his presence, if he has probable cause to believe the person to be arrested committed it.

Notice it says for a felony in fact committed. But what happened to innocent til guilty, right? Right, but by not showing up at the appointed time the bail jumper has committed a felony:

SDCL 23A-43-31. Failure to appear after release as forfeiture of security - Felony or misdemeanor.
Any person who, having been released pursuant to this chapter, fails to appear before any court or judicial officer as required or fails to comply with the provisions of § 23A-43-4.2 shall, subject to the provisions of this title, forfeit any security which was given or pledged for his release and, in addition, shall:
(1) If he was released in connection with a charge of a felony, an alleged felony violation of §32-23-1, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be guilty of a Class 6 felony
-I did not add the misdemeanor section due to the fact that bail is rarely required for misdemeanors and nearly all the bail bondsmen deal with are felonies-

So by not showing up at your hearing you are guilty of a felony (It’s pretty apparent to the court you are not there, thus committing a crime)

Now, what can a runner do in order to arrest you? A recent case in SD: State v. Shadbolt, 1999 SD 15, 590 NW2d 231, allows that a runner may use reasonable force.
(the case is about an unlicensed runner who made the keystone cops look good)

Reasonable force is of course a sticky point and varies from judge to judge, state to state, etc…

Lastly as for crossing state lines to “get your man” (with appologies to jti and the RCMP) SD requires:

SDCL 58-22-51. Out-of-state bail bondsperson - Notification of activities - Limitations on activities.

Any out-of-state bail bondsperson or runner entering this state shall notify all local law enforcement agencies in the area where the bail bondsperson or runner intends to conduct runner activities as defined in subdivision 58-22-1(5), including, at a minimum, the office of the county’s sheriff, and also, if operating within a municipality, the office of the municipal police as to the bail bondperson’s or runner’s presence and intended activity and present evidence of out-of-state licensure. No out-of-state bail bondsperson or runner who is unlicensed in that person’s state of domicile may conduct any runner activities in this state. No bail bond activities as prescribed by this chapter may be conducted by any person in this state unless that person is licensed in this state as a bail bondsperson as prescribed by this chapter. Violation of this section is a Class 6 felony.

So a runner may come in to grab a bail jumper but must inform the local PDs. And must be licensed in the state the runner is coming from.

So, you see it derives from common law and state statutes and undoubtably varies from state to state.

For more info check out 8 AmJur2d Bail and Recognizance §120 (1980) or here are some other recent cases:Green v. State, 829 SW2d 222, 223 (TexCrimApp 1992)or Moncrief v. State, Comm’r of Ins., 415 So2d 785, 788 (FlaDistCtApp 1982).
the cases deal with the conflict of the state statutes and common law in regards to Bounty hunters and bail bondsmen.

Hope all of that helped…

“Nuts!”
Gen A.C. McAuliffe
“The general’s nuts.”
unknown 101st AB grunt

33

JTI no course the goons can’t bust in and haul Mr Williams away.But you were talking “involuntary servtude” I was just trying to illustrate that you can sign away certain rights in certain situations. And one right you can sign away is protection against what otherwise would be unlawful detention when you sign a bail contract.
The whole area is as clear as mud. As an unlicensed ‘private citizen’ i can enter South Dakota and make a citizens arrest on some one I KNOW has skipped bail. But if I violate any of the regulations for a licensed’runner’ they will take my license away?

34

Sorry, Mr John, I should’ve reread my post before posting it.

A bounty hunter (or runner) derives his power of arrest from: SDCL 23A-43-29. Arrest of defendant by surety on violation of conditions - Recommitment and discharge of surety. This meaning that a BH can arrest anyone (felon or misdemeanor) who has skipped bail from the bail bondsman that the BH works for.

That really was as far as I needed to go to show the powers of arrest for a BH, but then I, like an idiot, throw in the part of Cit arrest.
To answer your question, yes you as a private cit may arrest someone you know has committed a felony. You would then turn the arrestee over to the police. Who may or not thankyou, give a lecture, etc…
However, if you are a bounty hunter you are getting back the money deposited with the court as a bond. Also the BH can transport his prisoner back to the jurisdiction where the surety is held.

If you as a “private cit” just make a cit arrest that’s ok, you try and get the bond money for arrestee or transport him over state lines, then it’s Bounty hunting and you may be charged with a felony (whether you are a resident or out of stater.)

Is that better, or did I just stir up the mud some more?

“Nuts!”
Gen A.C. McAuliffe
“The general’s nuts.”
unknown 101st AB grunt

35

Here’s a movie based on the exploits of bounty hunter Ralph “Papa” Thorson:

{url]http://us.imdb.com/Title?0080907

One of my favorite movies because the opening scenes were filmed around where I group up. Too bad we moved away the year before, I could have met Steve McQueen and LeVar Burton.

“Age is mind over matter; if you don’t mind, it don’t matter.” -Leroy “Satchel” Paige

36

OK, let’s try this again:

http://us.imdb.com/Title?0080907

“Age is mind over matter; if you don’t mind, it don’t matter.” -Leroy “Satchel” Paige

37

Go away for a week and your thread drops off the face of the planet with these new pages…

At any rate, Mr. John, maybe we’re talking at cross-purposes. What I was trying to get at in the Williams example is that even if Robin put in the contract that the venue operator could send in the goons, I would have thought the provision would be void for public policy - you can’t contract out of your liberty in that way. I just don’t understand the concept of a “contractual right of arrest” - maybe it is truly a difference between our legal systems.

Xgemina - thanks for the detailed info; basing the bounty hunter’s authority in state law, enacted by the legislature, makes it more understandable than the “contractual right of arrest.” However, I still don’t get why the state can authorise the use of force by bounty hunters without regard to constitutional rights of the hunted, when they can’t authorise state police to do so. But, it may just be implicit in that old Supreme Court decision.

Thanks for your comments, everyone - found it very enlightening.

38

jti–which constitutional rights are you talking about?

Maybe I’m missing your point, but are you talking about not needing to mirandize, or need for search warrant to enter the house the bail jumper may be in?

39

both - miranda is just common shorthand for the right to consult counsel. Do the bounty hunters not have to allow their prey to consult a lawyer, or is it covered by the provision of turning over to a law enforcement officer that you cited? If they’re out of state, are they allowed to take the guy straight back to their state, or do they have to take him to the local law enforcement officer? (I wasn’t quite sure from the statute excerpts you posted.) If they have to take him to a law enforcement officer right away, I can see how a court can say that in the circumstances, we may not require full Miranda; but if they can take him out of state without going to the cops, shouldn’t he be able to consult a lawyer?

The other point is the search. Does an arrest warrant also authorize the intrusion into a dwelling place, which may not even be owned by the guy they’re looking for, or is a separate warrant required for that?

40

The big concept missing is the relationship exisiting between the bond company and the fugitive. Technically what a bail does is that it allows a person to post a monetary guarantee that he/she will show up in court on a certain date and time. When a bail bondsman puts up someones bail, that person is released into the bondsman’s custody. Therefore he is on furlough, but really in the bail bondsman’s care. Therefor a bail bondsman who send bounty hunters after someone is regaining a custody he did not lose.

Courts have decided to create a fiction where a bondsman is actually the accused’s jailor untill he shows up in court. Once he does not show up in court he has “escaped” from his imprisonment and he can be brough back into the bondsman’s custody.

Why then isn’t state action? That is the real crux. The Supreme Court has not reviewed its case, and probably the biggest obstacle to a reversal is the fate many prisoners suffer throughout the rest of the world. No company is going to post bail if it isn’t guaranteed it can recoup its losses by returning the fugitive within a specified timeframe. In other words, the big fear is that when a judge imposes a 100K bail noone will be able to pay it, and therefore will have to remain in prison while awaiting trial.