TRIAL PRACTICE
Reining in Bounty Hunters

By Gerald D. Robin

About 10 percent of bail bondsmen’s clients jump bail every year. Most bondsmen hire a bounty hunter, who is an agent of the bondsman, to retrieve absconders. The extraordinary powers of bounty hunters in performing their duties derive primarily from two sources: the Supreme Court’s 1872 decision in Taylor v. Taintor, 83 U.S. 366 (1872), which synthesized and expanded on the common-law rights accorded bounty hunters, and the legal distinction between “state actors” and “private actors.”

Bounty hunters do not have to ‘knock and announce’ before breaking down doors to search for the principal.

State actors and private actors. Bounty hunters have free rein in pursuing their quarry because constitutional restrictions are only binding on state actors—persons who are employed by and work for a unit of local, state, or municipal government. The Bill of Rights does not apply to bounty hunters because they are private actors, employed by the bondsman, who is a private businessperson. Because they are acting in a private occupational capacity, manhunters can question snared bail jumpers without Mirandizing them. Coerced incriminating statements they obtain from fugitives are even admissible in court.

Constitutional constraints, however, do apply to bounty hunters whenever they are legally deemed to be acting as state actors, thereby triggering Fourth and Fifth Amendment limitations on how the trackers do their job. The guiding principle for ascertaining when bounty hunters are acting as an instrument of the state, established by the Supreme Court in Lugar v. Edmondson, 457 U.S. 922 (1982), is whether they received “significant aid” from or “acted together” with law enforcement officers. Bounty hunters, and bondsmen, are most likely to lose their private actor status (a) if the police join forces with bounty hunters in making a warrantless home entry, house search, or in subduing the fugitive; and (b) if the trackers are working under the express direction, supervision, instigation, or at the behest of the police.

Taylor v. Taintor. Under Taylor v. Taintor, bounty hunters have (a) the right to seize fugitives without a warrant at any time of the day or night at the fugitive’s home; (b) the right, if necessary, to break and enter the fugitive’s house and to use whatever force is necessary to obtain custody of the defendant. They do not have to “knock and announce” before breaking down doors to search for the principal. Many courts extend this right to third-party residences. Bounty hunters also have (c) the right to “imprison” defendants until bounty hunters complete the final stage of their assignment—surrendering their prisoner to the sheriff of the county in which the fugitive was originally charged and admitted to bail; (d) the right to whisk captured fugitives across state lines back to the jurisdiction from which they fled, without seeking formal extradition or satisfying any procedural safeguards; and (e) the right to recover fugitives without “new process” (a new, separate warrant specifically authorizing them to make interstate seizures or forcible entries, searches, and arrests in the fugitive’s home).

Licensing bounty hunters. Current efforts aimed at curtailing bounty hunter abuse, delineating the scope of their powers, and raising occupational standards involve statutory changes regulating fugitive recovery methods and qualifications for the job. The centerpiece of these reforms calls for state licensing of bounty hunters before individuals can ply the trade in that state. The most uniform requirement in states that license bounty hunters is that applicants convicted of any felony, offense involving “moral turpitude,” and certain misdemeanors are categorically excluded from the occupation. However, in the majority of states, there is usually nothing to prevent convicted criminals from pursuing bail-jumping lawbreakers. A common licensing requirement is that bounty hunters be of “good character” or similar statutory language indicative of the applicant’s integrity, honesty, trustworthiness, and competency. Implicit in this qualification is that applicants provide the licensing agency references from reputable citizens who will vouch for the aspiring bounty hunter’s good character. Several states require licensed bounty hunters to inform, or register with, local law enforcement authorities before making an apprehension in their jurisdiction. Others require bounty hunters to wear identifying clothing or carry identification cards.

Only four jurisdictions require taking written or psychological examinations administered by the state. Slightly more than one-third require licensed bounty hunters to successfully complete a designated number of hours of formal training, classroom education, and/or continuing education. The minimum age licensure norm is 18 years.

Consequences of violating licensing requirements. First, bounty hunters who do not comply with the licensing rules can have their licenses revoked. Virtually every statute in the Bounty Hunter Laws Survey specified that licenses are renewable annually or every two to three years upon “good behavior.” Moreover, the laws explicitly or implicitly allow for license revocation whenever a bounty hunter has “demonstrated incompetence or untrustworthiness in the conduct of the licensee’s business,” is otherwise found unsuitable for the position, or has not completed the required number of hours of continuing education. Second, unlicensed bounty hunters can be criminally prosecuted because, in licensing states, practicing bounty hunting “without a license” is a felony or misdemeanor. The distinctive value of license revocation is that it is a powerful preventive deterrent against bounty hunters abusing defendants or the fugitives’ housemates, a sanction that applies to all licensed bounty hunters regardless of whether they are working as private actors or state agents.

By contrast, in nonlicensing states the only legal consequence if bounty hunters employ excessive force is the remote possibility of facing and losing a section 1983 suit: a remedy after the damage has been done. Bounty hunters in nonlicensing states can be prosecuted for any “job-related” criminal acts, the usual charge being aggravated assault against the fugitive or a third party stemming from strong-arm tactics used during a raid gone awry. But obtaining a conviction is another matter because the trackers’ standard defense is that they were just “doing their job.”

Abrogating Taylor. In a radical departure from Taylor and the common law, some states have imposed “new process” on bounty hunters, in two ways: First, states require bounty hunters to obtain a separate or fresh arrest warrant before seizing fugitives in a private dwelling. Second, states set certain conditions before out-of-state bounty hunters who chase fugitives across state lines can bag their peripatetic prey and take them back to stand trial. States can reject Taylor because, as separate sovereigns, they retain the authority to provide their own residents greater protections under their state constitutions than those available to all of the nation’s citizens based on the Supreme Court’s interpretation of the U.S. Constitution. States such as California and Iowa, which have abrogated the common-law powers of bounty hunters, have simply given bail jumpers in their commonwealth additional or “more due process” than the minimal constitutional protections afforded everyone under the Constitution. Taylor placed no Fourth or Fifth Amendment barriers in the way that bounty hunters go after absconders; it essentially provided bail jumpers no due process protections. Under the mantle of “new process,” however, some states have given residential bail jumpers who jumped state lines more due process by prohibiting bounty hunters from making warrantless house arrests, requiring them to notify local authorities before seizing targets, and mandating judicial hearings before fugitives can be extradited.

FOR MORE INFORMATION ABOUT THE CRIMINAL JUSTICE SECTION

This article is an abridged and edited version of one that originally appeared on page 4 of Criminal Justice, Fall 2006 (21:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Website: www.abanet.org/crimjust.

Periodicals: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; White Collar Crime Newsletter, three times per year (electronic).

Books and Other Recent Publications: Leapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers; Fourth Amendment Handbook, 2d ed.; Juvenile Justice Standards, Annotated; The Shadow of Justice (fiction); A Portable Guide to Federal Conspiracy Law: Tactics and Strategies for Criminal and Civil Cases; Practice Under the Federal Sentencing Guidelines; Restitution for Crime Victims: A National Strategy; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts.

Gerald D. Robin is a professor of criminal justice at the University of New Haven, Connecticut. He can be reached at .

Copyright 2007

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