Hindsight from The New Gun Week April 1, 1998
Lawmakers Eye New Bounty Hunter Laws
by Joseph P. Tartaro
Executive Editor
"Midnight Run" run has become a sort of modern cult film, but for all its interesting characterizations—played by some of Hollywood's most capable regulars—and its twisting plot, it is basically a bounty hunter movie. While there are several bounty hunters of varying degrees of virtue involved in this flick, as well as gangsters who want to kill the witness who jumped bail, the main bounty hunter, played by Robert DiNiro, is a good guy, according to modern film morality.
Movies and television have frequently portrayed bounty hunters as good guys, particularly with sympathetic actors like the late Steve McQueen in such a role. Some bounty hunters, or "bail skip retrievers" as they are sometimes called, are indeed good guys, providing a necessary social service. I've known some of them, and generally they are, not surprisingly, pro-gun. Before the Texas right to carry law was passed, bounty hunters I knew in Texas were routinely carrying concealed, illegally, but of necessity.
But not all people pursuing bail jumpers for money are quite as good or glamorous as Hollywood would like to portray them. Some of the men and women working in tracing bail jumpers today are ex-convicts, or have otherwise been in trouble with the law.
Yet these bounty hunters enjoy broader powers to arrest fugitives than do police officers.Legitimate Purpose
Bounty hunters are the agents of bail bondsmen whose clients have skipped bail. They may be regular employees of the bonding company, or free-lance independent agents paid a commission if they find the fugitive and return him to custody.
Decisions whether to release a person charged with a crime pending trial after the initial arrest and charge, are made by a judicial officer in the jurisdiction, after considering whether the defendant poses a risk of flight. Frequently, a money bond, or bail, is imposed on the defendant to insure his or her return appearance in court.
When a defendant cannot afford to pay the bail bond, he or she will turn to a bonding company, or bondsman, who will post the necessary bail for a percentage, usually 10%. Part of the bond contract between the borrowing defendant and the bond company is a clause permitting the defendant's recapture by "whatever means necessary" should he or she fail to appear for trial. If the defendant fails to appear for trial or court hearings, the bonding company will lose the full amount of the bond unless the defendant is traced, apprehended and returned to custody.
The bonding agent, who provides a legitimate service both to the courts and community, as well as the defendant, thus has an incentive to assure the availability and appearance of the defendant, and will pay a bounty, or reward, for that appearance. The tracing and forcible recapture of the defendant is frequently accomplished with little or no consideration for the rights of the defendant, or any other person, including innocent bystanders.
The laws governing bounty hunting have their origins in the 19th century. According to some legal experts, these laws have not been updated in the same fashion as those governing sworn peace officers, or even privatized law enforcement. In many areas—both under federal and state jurisdictions—bounty hunters have been allowed wider latitude than their specific "police" functions would indicate necessary. As a result, there has been limited civil redress for those whose rights are violated.
Incidents RecountedSeveral recent incidents have contributed to both federal and state lawmakers considering new legislation related to that profession.
Last year, there was the notorious shoot-out in Arizona involving five men who almost escaped prosecution when they claimed to be bounty hunters in pursuit of a wanted man. Prosecutors almost let them go before it was discovered that robbery was the real motive for the home invasion in which the occupants were murdered. Instead they are now awaiting trial.
Many people who followed that story couldn't understand why armed, masked bounty hunters might have been allowed to get away with breaking into someone's house, searching, damaging property and injuring or killing innocent people. The fact is that special laws allow bounty hunters to act in ways which are prohibited by law to sworn peace officers.
"They can legally break into a home without a warrant or probable cause, and can violently arrest, shackle, imprison and even transport suspects across state lines with impunity," said Leslie Hagin, legislative director of the National Association of Criminal Defense Lawyers (NACDL), during recent Congressional hearings on proposed legislation.
The leading federal proposal, HR-3168, "The Citizen Protection Act of 1998," is a bipartisan bill, introduced by Rep. Asa Hutchinson (R-AR) and co-sponsored by Rep. Charles Canady (R-FL), chairman of the House Constitution Subcommittee, and Rep. John Conyers (D-MI), ranking Democrat on the House Judiciary Committee.
One witness at the March subcommittee hearing, Jrae Mason, told congressmen this story.
She had seated herself on the front step of her New York City apartment building on a summer night in 1994, when she was suddenly seized, handcuffed and put in the back seat of a southbound car by bounty hunters who had mistaken her for an Alabama bail-jumper.
At one point during the 900-mile journey south, they threatened to lock her in the trunk if she did not stop protesting. She testified that she traveled in fear as they drove on back roads with little other traffic.
Three days after she was abducted, the bounty hunters acknowledged their error and sent her home on a bus with $24.
Mason, who was later awarded a $1 million civil award by a federal jury, was one of four witnesses who told lawmakers chilling stories of mistaken identity and abuse of power at the hands of bounty hunters.
They were not the only witnesses. Jerry Watson, legal counsel to the National Association of Bail Insurance Companies, also spoke. He said that about 7% of 4 million defendants whose appearances in court are guaranteed by bail bonds fail to appear and become targets of bounty hunters.
The NACDL testified in support of the changes that would be made by HR-3168. These include:
- Subjecting bail bond sureties and bounty hunters to liability for violations of federally-protected civil rights;
- Consider any bounty hunter, whether an independent contractor or employee of a bail bonding company, to be agents of the bondsman for purposes of liability, and require liability insurance for bail-bond companies who hire bounty hunters, and
- Establish a duty on the part of each bail bonding company and bounty hunter who intends to gain custody over a person in a different state to inform local authorities of their intent, a step designed to reduce the possibility that an innocent person's home will not be broken into or an innocent person taken into custody.
Similar legislation is under consideration in the New York legislature, as well as in other state capitals. The New York state proposal gained impetus recently because of an incident that resulted in the death of a Buffalo police officer last month.
In that case, five bounty hunters from Maryland were in Buffalo in pursuit of a fugitive from a drug-related charge. Just about dawn they contacted local police from their van, which was following a public bus, that their quarry was on the bus and believed armed.
As police responded, the fugitive leaped from the bus with police and bounty hunters in pursuit. An officer who followed the fugitive as he dashed across an expressway in the low-light hours was struck and killed by a car southbound at expressway speed.
The fugitive was later apprehended by Buffalo police and charged with manslaughter. No charges were placed against the bounty hunters, although there was much criticism of the way they handled themselves in the incident. The Buffalo police suggested that advance warning of their search and intent by the bounty hunters might have prevented the death of the officer and contributed to the apprehension of the fugitive under different circumstances.
Tracing bail-skippers is not a profession for the timid at heart. In most cases, bounty hunters have to expect resistance from dangerous fugitives and, as in "Midnight Run," the possibility that even more dangerous criminals may not want the fugitive to ever get to court. The skip-tracers are frequently armed with guns, and because of the crazy quilt of concealed carry laws, often illegally when they cross state lines.
If society wants to assure the continued services of the bail-bond system and those who must enforce it, they should also support the concept of federal laws that provide reciprocity for bonding agents and other citizens who are legally allowed to carry concealed in their home states.
The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.netAlso, check out the New Gun Week at http://www.GunWeek.com