August 28, 2012

The Honorable Edmund G. Brown, Jr.

Governor of California Position:  Oppose 

State Capitol Building

Sacramento, CA 95814 Location:  Governor’s Desk

RE:  AB 2029 (Ammiano) – Bail Fugitive Recovery Persons Act (As Amended 5/25/12)

Dear Governor Brown:

Golden State Bail Agents Association (GSBAA) is a trade association representing the California bail industry.  The purpose of the association is to promote the understanding of the bail industry’s important role in California’s criminal justice system and to protect the rights of its citizens.  The Association is headquartered in Sacramento, California, but has members throughout California.  The members of GSBAA include bail employees, bail agents and bail insurance companies.

We support most of AB 2029; however section 1299.10 of the bill will have a significant negative impact on our industry if it is not amended to apply to misdemeanor defendants as well as felony defendants.

1. Background:

When the Fugitive Recovery Act was originally passed in 1999 and extended in 2005, it contained a sunset clause because this was new legislation and it was anticipated that amendments would be needed to fine tune the legislation, based on experience in the field.

Section 1299.10 was in the original Act and it has proven to be unworkable in the field, which is why we are asking for it to be amended to include misdemeanor defendants.

2. Interference with our bail contracts:

All bail contracts contain a clause requiring the co-signers to help the bail agent arrest and surrender the defendant back into custody.  Co-signers are usually close family or friends of the defendant and therefore, their homes the most likely places that fugitive defendants would hide.

Tens of thousands of bail contracts have been executed in California during the 2 ½ years since the Act sunsetted. This bill will retroactively interfere with these contracts by prohibiting the bail agent from forcibly entering the co-signers residence in misdemeanor cases even when the bail agent has probable cause to believe that the defendant is in the residence.

3. Confusion and conflict of laws:

As written, section 1299.10 of AB 2029 will conflict with Penal Code Section 1301.  Penal Code Section 1301 provides in relevant part that:

For the purpose of surrendering the defendant, the bail or any person who has deposited money or bonds to secure the release of the defendant, at any time before such bail or other person is finally discharged, and at any place within the state, may himself arrest defendant, or by written authority indorsed on a certified copy of the undertaking or a certified copy of the certificate of deposit, may empower any person of suitable age to do so. (Pen. Code §1301, emphasis added.

As you can see, Penal Code §1301 authorizes the bail agent or bounty hunter to arrest the defendant at any time and at any place within the state regardless of whether the charge is a misdemeanor or the place is a personal residence.  AB 2029 will conflict with this statute leading to confusion in the field as to which law applies to forcible entry into a residence containing a misdemeanor defendant.

This conflict of laws is compounded by the fact that AB 2029 is internally inconsistent as to which statute governs the fugitive recovery person’s arrest powers.  Section 1299.08(c) states that:

This section shall not preclude an individual authorized by Section 1299.02 to apprehend a bail fugitive from making or attempting to make a lawful arrest of a bail fugitive on bond pursuant to Section 1300 or 1301. The fact that a bench warrant is not located or entered into a warrant depository or system shall not affect a lawful arrest of the bail fugitive. (AB 2029, §1299.08(c), emphasis added.)

AB 2029 will almost certainly lead to years of litigation to determine which statute applies to the forcible entry into a residence containing a misdemeanor defendant.

4. Felonies can be reduced to misdemeanors:

AB 2029 will also interfere with our underwriting because a defendant that was bailed out on a felony charge can have his charge reduced to a misdemeanor when he goes to court.  Defendants have a constitutional right to bail at the time that they are arrested and booked into the jail.  Therefore, bail agents often post bail for defendants after they are booked into the jail and before they have been taken to court for arraignment.

When a defendant is booked, he is charged with the crimes alleged by the arresting officer and these charges determine the defendants bail amount and are the crimes that he is bailed out on. Later, when the defendant goes to court, the prosecutor may file different charges or reduce the charges from felonies to misdemeanors.  The court may also dismiss felony charges or reduce them to misdemeanors during the criminal litigation.

Therefore, section 1299.10 of AB 2029 will leave the bail agent in the impossible position of not knowing what his arrest powers will be at the time that he posts the bail bond.  The defendant may be charged with felonies when the bond is posted, but those charges could have been reduced to misdemeanors by the time the defendant forfeits the bail bond by failing to appear in court.

Furthermore, the court does not notify the bail agent when the defendant’s charges are reduced from felonies to misdemeanors which will lead to confusion and unintentional violations of AB 2029.

5. Bail agents have more powers to arrest defendants out on bail than ordinary citizens:

Bail is a special form of contract where a person is granted release from jail upon a promise to appear at a specified time backed by a bond secured by the bail agent.  A defendant stays in the constructive custody of the bail agent at the contractual consent of the bailed defendant.  Bail agents thus have a right to arrest absconding defendants to perfect the constructive custody. (Taylor v. Taintor (1862) (16 Wall.) 83 U.S. 366, 372; People v. McReynolds (1894) 102 Cal. 308, 311-312.)

Section 1299.10 of AB 2029 incorrectly applies a citizen’s arrest statute, Penal Code §844, to bail agents and bounty hunters who are arresting their bail fugitives.   Penal Code §844 states that:

To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired.(Pen. Code §844, emphasis added.)

As you can see, Penal Code §844 only applies to private persons and peace officers. While bail agents are private citizens, they have unique powers to arrest bail fugitives and Penal Code §844 makes no mention of this distinction.  Penal Code §844 was originally enacted in 1872 and the statute was never applied to bail agents prior to the enactment of the original Fugitive Recovery Persons Act in 2000.  Furthermore, even though Penal Code §1301 was enacted in 1965, long after §844, it makes no mention of §844.   This is because bail agents and bounty hunters have their own unique powers to arrest bail fugitives which are defined and controlled by Penal Code §§1300 and 1301.

Furthermore, unlike ordinary citizens, bail agents have training in the law of arrest, pursuant to Insurance Code §1810.7 California bail agents are required to take pre-licensing education which includes training in the “… apprehension of bail fugitives.”  Additionally, under AB 2029, bounty hunters will be required to take a 40 hour power of arrest course certified by the Commission on Peace Officer Standards and Training.

6. Why should bail agents be allowed to forcibly enter a residence without a warrant when law

enforcement can’t?

Because bail agents and bounty hunters are not government actors like law enforcement, but are private persons acting in their own interest.

The Fourth Amendment’s prohibition against unreasonable searches and seizures does not apply to searches by private individuals not acting in concert with or as agents of governmental authorities.  A bondsman, in making an arrest of an absconded defendant, is acting to protect his own private financial interest and not to vindicate the interest of the state. (People v. Houie (1970) 13 Cal.App.3d 892, 895)

7. The level of the offense does not necessarily correspond with the amount of the bail for the offense:

Restricting the right to forcibly enter a premises to Penal Code §844 is unworkable, because Section 844 only applies to felony offenses.  The level of the offense does not necessarily correspond with the amount of the bail for the offense. Many misdemeanor offenses have bails in the hundreds of thousands or even millions of dollars.

For example, Los Angeles City Attorney Carmen Trutanich recently had a local businessman arrested and held on $1 million bail for three misdemeanor charges.  It would be absurd to say that if that defendant failed to appear in court, a bail bondsman with a potential $1 million liability could not forcibly enter into the defendants residence and arrest him, but he could if the defendant had a $5,000 felony bond.  The court would not have set such a high bail if they believed the charge wasn’t serious.

8. The DOI’s horror stories about abusive bounty hunters are without merit:

In the bill analysis for AB 2029 the Department of Insurance (DOI)  lists four anecdotal horror stories about bounty hunters abusing citizens since the Act sunsetted in 2010.  However, the DOI does not allege that any of these cases involved the forcible entry into a residence on a misdemeanor charge, which was the amendment that we sought. Furthermore, the DOI does not mention what the outcome of these alleged cases was or whether any of the perpetrators were arrested, prosecuted, sued civilly or censured in anyway.

A better way to determine whether there are a bunch of dangerous bounty hunters roaming California and abusing people, is to look at the 10 year enforcement history of the Bail Fugitive Recovery Persons Act prior to its sunset in 2010.  If this was a real problem we should see numerous arrests, prosecutions and civil cases being brought for violation of the Act.

However, the April 15, 2004 Senate Public Safety Committee analysis of AB 2238 (Spitzer) only cites one example of bounty hunters being charged for violation of the  Act in the previous four years. AB 2238 extended the Act for another five years to 2010.

Furthermore, AB 2238 required a report by the California Research Bureau to the Legislature on the “structure and implementation” of the Act. The report was due no later than January 1, 2009. The CRB report did not cite even one example of arrests, prosecutions or even civil cases being brought for violation of the Act since its enactment in 2000.  Therefore, it is clear that the DOI’s horror stories about abusive bounty hunters are without merit.

Again, GSBAA is opposed to AB 2029, and we respectfully urge the governor’s veto on this measure.

Should you have any questions, please contact our legislative advocate, Kathryn Lynch, at (916) 443-0202.

Sincerely,

John Bench

Golden State Bail Agents Association

cc: Ms. June Clark, Deputy Legislative Secretary, Governor’s Office

Ms. Kathryn Lynch, Legislative Advocate

Golden State Bail Agents Association