Opinions Needed

Initial notice provided by Scott Harrel:

For Discussion:

While pretty standard at first glance, it looks like this one is trying to convert the civil nature of bail into a criminal endeavor with regards to private civil contract enforcment per the 'criminal judicial proceeding language.' If it goes through as is, this may open up things for USC 1983 remedies that are now not available.


109th CONGRESS
1st Session

H. R. 2621
To clarify that bail bond sureties and bounty hunters are subject to
both civil and criminal liability for violations of Federal rights under
existing Federal civil rights law, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES
May 25, 2005
Mr. ANDREWS introduced the following bill; which was referred to the
Committee on the Judiciary

A BILL
To clarify that bail bond sureties and bounty hunters are subject to
both civil and criminal liability for violations of Federal rights under
existing Federal civil rights law, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the `Bounty Hunter Responsibility Act of 2005'.

SEC. 2. CLARIFICATION OF APPLICATION OF CIVIL RIGHTS LAWS.
(a) In General- For purposes of section 1979 of the Revised Statutes of
the United States (42 U.S.C. 1983), section 242 of title 18, United
States Code, and other Acts of Congress providing civil or criminal
liability for the deprivation of federally protected rights under color
of any statute, ordinance, regulation, custom, or usage, of a State--
(1) a surety on a bail bond;
(2) an agent of such surety; or
(3) any bounty hunter;
seeking to obtain or exercise custody over a person admitted to bail
under the laws of a State is acting under color of a statute, ordinance,
regulation, custom, or usage of that State.
(b) Agency Relationship- For the purposes of subsection (a), a bounty
hunter, if acting as an independent contractor or an employee of a
surety, is an agent of that surety.

SEC. 3. NOTIFICATION TO LAW ENFORCEMENT.
It shall be the duty of each surety on a bail bond, each agent of such
surety, and each bounty hunter, who, in a State, personally seeks to
obtain or exercise custody over a person admitted to bail outside that
State, before commencing activities in that State, to inform the local
law enforcement agency of the presence of such surety, agent, or bounty
hunter, and of the intention of that surety, agent, or bounty hunter to
seek to obtain or exercise custody over that person. This requirement
does not preempt any additional requirements imposed on any such surety,
agent, or bounty hunter by such State.

SEC. 4. MODEL GUIDELINES.
(a) In General- Not later than 180 days after the date of enactment of
this Act, the Attorney General shall publish in the Federal Register
model guidelines for the State control and regulation of persons
employed or applying for employment as bounty hunters. In developing
such guidelines, the Attorney General shall consult with organizations
representing--
(1) State and local law enforcement officers;
(2) State and local prosecutors;
(3) the criminal defense bar;
(4) bail bond agents;
(5) bounty hunters; and
(6) corporate sureties.
(b) Recommendations- The guidelines published under subsection (a) shall
include recommendations of the Attorney General regarding whether a
person seeking employment as a bounty hunter should be--
(1) allowed to obtain such employment if that person has been convicted
of a felony offense under Federal law, or of any offense under State law
that would be a felony if charged under Federal law;
(2) required to complete successfully a State approved basic
certification course in the criminal justice system;
(3) required to complete successfully a handgun training course; or
(4) required to submit to a fingerprint-based criminal background check
prior to entering into performance of duties pursuant to employment as a
bounty hunter.

SEC. 5. DEFINITIONS.
As used in this Act--
(1) the term `bounty hunter' means a person, other than a public
official engaging in official duties, who, for compensation or a reward
from a surety on a bail bond or an agent of such a surety, seeks to
obtain or exercise custody over another person for purposes of criminal
judicial proceedings; and
(2) the term `State' includes any territory or possession of the United
States and the District of Columbia.

END


Here's the language to look at:

"the term `bounty hunter' means a person, other than a public
official engaging in official duties, who, for compensation or a reward
from a surety on a bail bond or an agent of such a surety, seeks to
obtain or exercise custody over another person for purposes of criminal
judicial proceedings..."

"Official Duties?" "For the purposes of CRIMINAL judicial proceedings" [emphasis added]

Bail enforcement is a civil matter though it is strangely affiliated or otherwised tied into criminal matters.

Bail enforcement's purpose is a private contractual one and not a criminal one, which protects BEAs and their contractors from USC 1983 causes of action.

I'm understandably curious as to what you all think in terms of whether or not this one should be of concern.

Rex

This is no different than the unifying of CDL's back in '93. We had the same problem then as truck driver's that we now have as trackers. Each state had seperate and often times conflicting laws. Not unlike our current situation.

We do need unilateral, uniform laws that govern our industry, so that we can all operate legally in all areas of the country and our territories. For example, in my state (Al), we have no licensing requirements. Anyone can come into the store, buy a badge and all other gear and pronounce themselves a "bounty hunter". I see it several times a month.

Recently, there were 3 rookie trackers that were almost killed in an apprehension. 1 of them is still in the hospital recovering from his knife wound (he was not wearing a vest). They had little to no training, and were over confident.

So to me, I firmly believe in a P.O.S.T style, state mandated training academy with required annual re-certifications that is accepted nationwide.

This would put an end to all of the issues with varying jurisdictions.

I have made apprehensions all the way from Michigan to Ft Lauderdale, Fl and as far west as Louisianna and back again. It is a hassle having to know every single law, dotting every"i" and crossing every "t".

_________________
River City Associates
Decatur, Al. 35601

I totally argee with you we do need a P.O.S.T. style training program and people in state offices that know what they are talking about when it comes to our industry it took me over an hour today and over 10 people transfuring my call to get a straight answer from the state of Tennessee today but the 11th person was great and gave me there direct line for any other problems i have. wouldn't have had near the hassel if they knew who to let me talk too in the first place

Please allow me to further clarify the point of this thread.

The following forms the basis of a question for an attorney:

There was a federal law that went on the books, and it was barely noticed. Later, someone stumbled across it and a light bulb went off. The guy looked at the obscure law and connected the dots. Today, the R.I.C.O. statute is, arguably, a well-known law to those it directly applies to—organized crime.

U.S.C. § 1983 (1982) “1983” provides remedy for deprivation of constitutional or legal right by person acting under color of state law.

Even though bail enforcement seemingly mimics the duties of sworn law enforcement personnel, which has led to remedies sought via 1983, reasonable actions of private parties enforcing a private contract has been protected by disallowing 1983 application despite argument to the contrary in several cases.

This is where purportedly acting under the color of a state bench warrant, instead of a “bail piece”, may thus require adherence to fourteenth and fourth amendment claims per Maynard v Kear. In other words, by convincing a person that you are there to serve a warrant instead of enforcing a bail bond agreement, you may be opening up the door for 1983 and such action is therefore ill advised.

In Thomas v Miller, however, the Court held that the bondsman’s acts were the result of a private contractual relationship and not under the color of state law, and this decision is followed by many other similar opinions.

Take this a step further and we see that by federalizing bail recovery with language that does not emphasize the private contractual relationship between the sureties and the defendant and even replaces it with language that adds the criminal law angle, then one can arrive at how this may be a problem considering existing law and may even open the door to remedies under 1983 if one, well, connects the dots.


Mintracker, I'm not sure that I follow your position: "This is no different than the unifying of CDL's back in '93." How did you arrive at this?

Also, while you have presented the position that we are not lawyers, I would encourage you, as an avid reader, not to be dismissive and take a moment to consider what it is here that may be on the table, if for no other reason than to help me identify where the proposed law will end up.

Rex

The comparison I draw is simply this: Just as with Commercial Driving prior to the unilateral Lic. req. that was mandated in 1993, there were conflicting state laws all across the country. Anyone who drove 18 wheelers prior to '93 understands what I am talking about. The uniformed req. that came out of the 1993 legislation resolved all of the state by state conflicts. Therefore making it easier for all parties to understand, obey and enforce.

This pending legislation or proposed act (whichever it is), includes a section of national licensing, regulating, and criteria that all trackers would have to meet that would be unilaterally recognized nation wide.
I.E. very similar to the '93 CDL regulation.

What I did not address was your actual intended point of discussion: The ramifications of this act if it passes and becomes a law.

_________________
River City Associates
Decatur, Al. 35601

Erased By Rex

I know many BEA's are in support of National Licensing that would replace licensing at the State level, this legislation would not replace State Licensing requirements it would simply add regulations at the Federal level which means that a BEA would not benefit from this legislation but face more obstacles and restrictions.

I'm all for creating professional standards in the unlicensed States but not at the expense of the rest of the industry, things are tough enough with how TV has portrayed us we don't need any of our freedoms restricted further.

I think even without Federal Regulations the unlicensed States will eventually require licensing.
There are a lot of people in government who don't like Taylor v. Taintor, if we give them an inch it's only a matter of time before they take a mile and we become mere skip tracers with no arrest authority.

Now against my better judgement I am going to post a reply (per request).

Well... after reading that proposed bill and on it's face I do not find too much cause to be conerned... but I think that is the point of the bill. It doesn't really say anything that isn't already done in a lot of states. Such a bill will not cause too much resistance and would not incite a uniting of the bail bondsmen, their agents, or the surety companies in order to defend and prevent the federalization and overregulation of their (our) industry.

That being said... I think we DO need to be CONCERNED.

Any legislation, when piled atop one another, is a cause to be concerned. For those of you who have followed gun laws and the activists attempting to remove our 2nd ammendment rights (not to mention the insane interpretations of the ammendment by anti-gunners) you know what I am talking about. 500 laws all saying the same thing and only making it harder for law abiding citizens to own them (Illinois is a good example of this).

Of course to cut to the chase I think we should be fighting to enforce the law already on the books.

There is already a ruling. And if anything, a fight to reinforce and possibly clarify the already prevailing supreme court rulings should be made. Here is where it would have been handy for all the large and small bail agencies to unite would be handy. Perhaps in concert with those insurance companies (BIG MONEY.. heck, a lot of people don't realize that in some states, seat belt laws are only on the books because the state gets a kick back from insurance companies for it... ie; KENTUCKY).

What will happen, if not careful, is that the industry will be assigned to one of a myriad of federal agencies (maybe Homeland Security or perhaps the US Marshalls) and the ability of the private citizen to participate will depend on some type of federal employment. That is the danger I see in the mentioned legislation and what is sure to follow.

As far as the truck driving goes... the only similarity I see was a rumour I heard (yes rumour so I don't stand by this info) that the federal govt was attempting to do away with the owner operator by some type of regulation. All truck drivers would have to be either employees of the federal govt. or of an organization licensed by the federal govt.

Now I have a feeling I have not elequently expressed, explained, or clearly stated my point on this... this is proabably due to the fact I just rode over 250 miles on my motorcycle (which needs a new seat) and walked all over the Louisville Zoo for over three hours with my son. While admittedly this was a lot of fun, I appear to be very tired and lack the desire to present my thoughts in a crystaline fashion LOL!

_________________
-The Solution-
Indiana Agency #: PI20700211
Indiana Notary Public - Exp: 12/20/13

"Be without fear in the face of your enemies. Be brave and upright that God may love thee. Speak the truth always, even if it leads to your death. Safeguard the helpless and do no wrong. That is your oath."
- Kingdom of Heaven

My heat induced delirium has prompted me to post something else.

No doubt there are members of the some of the larger bail enforcement/bondsman agencies around the nation.

So, why don't all you big wigs get together and come up with a board comprised of a member of each of the agencies... kind of like a united nations of bail agents.

Then since training needs to be standardized for any type of national application or credibility... Each agency represented will submit their own training syllabus (since everyone seems to have classes costing anywhere from a hundred bucks to five hundred bucks this should not be too difficult).

The BOARD will review all the training information and come up with a standardized majority acceptable.
Keep the cost of membership to the national agency LOW and the Training REASONABLE... remember we wish to build not cast away. The qualification requirements (ie; criminal checks, etc.) should be enough to keep out the basic riff-raff. a Code of Conduct should assist in the rest. Violtions of said "Code" would result in a Review Board Hearing on the conduct/actions in question. Suspension or Revocation of license would be the highest penalty... fines and other such things could be used for minor offenses.

Now you say how to enforce such a thing. Create a national standard and a federally recognized agency and with the right legislation the "boards" rulling could be nationwide. With the adding of the surety agencies (insurance companies) such a thing is VERY possible.

Now there will always be those that fall between the cracks. Only dilligence will solve that.

Such a UN of Bail Agents would have a lot of political pull especially with enlisting the aid of the Surety Companies. In fact, they would have no choice. Now while greed will always be a factor, a well written constitution and supporting by-laws should be of assistance, in so far as such things can be controlled.

This is just my first thoughts on the subject. No doubt others may be able to take it further.

_________________
-The Solution-
Indiana Agency #: PI20700211
Indiana Notary Public - Exp: 12/20/13

"Be without fear in the face of your enemies. Be brave and upright that God may love thee. Speak the truth always, even if it leads to your death. Safeguard the helpless and do no wrong. That is your oath."
- Kingdom of Heaven

My thanks to Mr. Jordan and Mr. Swain for not just replying but for also offering thoughts and ideas that well worth the time to consider.

Interestingly, and while I don't know if a paralell can be reached here, the US Supreme Court recently said no to pot, but Oregon is moving forward with their medicinal plans while California cooperatives are not quaking over the decision--yet.

Off Topic: yes we've been having earthquake weather before during and after the recent string of quakes.

Back on Point:

If a new federal law standardizes the crossing of state lines issue that is now restricted irrespective of T&T, then it may be worth supporting; however, if the language in a new federal law fails to recoginze the private nature of contract enforcement, then I think only a couple of minor changes to the way it is written should do the trick.

With respect to the POST idea, while the training is a good suggestion, anything that would officialize the trade in parity with government employees may be problematic should it ever come time to defend against a USC 1983 based allegation.

Again, there is substantial case law going in numerous directions that would most likely apply directly to this discussion and the proposed law.

Rex