BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator Bruce McPherson, Chair A 2003-2004 Regular Session B 2 2 3 AB 2238 (Spitzer) 8 As Amended April 15, 2004 Hearing date: June 8, 2004 Penal Code JM:br BAIL RECOVERY PERSONS (BOUNTY HUNTERS) HISTORY Source: California Bail Agents Association Prior Legislation:AB 243 (Wildman) - Ch. 426, Stats. 1999 AB 2733 (Wildman) - vetoed, 1998 Support: Bad Boy Bail Bonds; California Association of Law Enforcement Records Supervisors; California State Sheriffs' Association; Golden State Bail Association Opposition:None known Assembly Floor Vote: Ayes 76 - Noes 0 KEY ISSUES SHOULD THE SUNSET ON THE BAIL FUGITIVE RECOVERY PERSONS' ACT, WHICH REQUIRES TRAINING FOR AND REGULATION OF SO-CALLED BOUNTY HUNTERS, BE EXTENDED? (More) AB 2238 (Spitzer) Page 2 SHOULD A STUDY ON THE STRUCTURE AND IMPLEMENTATION OF THE ACT BE COMPLETED NO LATER THAN JANUARY 1, 2009? PURPOSE The purpose of this bill is to extend the sunset on the Bail Fugitive Recovery Persons' Act and to require a study on the implementation of the Act to be submitted to the Legislature no later than January 1, 2009. Existing law establishes the Bail Fugitive Recovery Persons Act, providing that specified persons engaged in the recovery of bail fugitives shall be required to complete specific training and comply with particular laws. (Pen. Code 1299 et seq.) Existing law defines the terms "bail fugitive", "bail", "depositor of bail", and "bail fugitive recovery person" for the purpose of the Act: a) "Bail fugitive" is defined as a defendant in a pending criminal case who has been released from custody under a financially secured appearance, cash, or other bond and has had that bond declared forfeited, or a defendant in a pending criminal case who has violated a bond condition whereby apprehension and re-incarceration are permitted. b) "Bail" is defined as a person licensed by the Department of Insurance pursuant to Insurance Code Section 1800. c) "Depositor of bail" is defined as a person or entity who has deposited money or bonds to secure the release of a person charged with a crime or offense. d) "Bail fugitive recovery person" is defined as a person who is provided written authorization pursuant to Penal Code Sections 1300 and 1301 by the bail or (More) AB 2238 (Spitzer) Page 3 depositor of bail, and is contracted to investigate, surveil, locate, and arrest a bail fugitive for surrender to the appropriate court, jail, or police department, and any person who is employed to assist a bail or depositor of bail to investigate, surveil, locate, and arrest a bail fugitive for surrender to the appropriate court, jail, or police department. (Pen. Code 1299.01.) Existing law provides - except as authorized in Penal Code Sections 837, 838, and 839 - that no person other than a certified law enforcement officer shall be authorized to apprehend, detain, or arrest a bail fugitive unless that person: Is a bail or depositor of bail as defined in the Act Is a bail fugitive recovery person as defined in the Act Holds a bail license issued by another state or is authorized by another state to transact and post bail, and is in compliance with California's arrest requirements for fugitives admitted to bail in another state Is licensed as a private investigator as provided in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code; or, Holds a private investigator license issued by another state, is authorized by the bail or depositor of bail to apprehend a bail fugitive, and is in compliance with California's arrest requirements for fugitives admitted to bail in another state. (Pen. Code 1299.02.) Existing law (Penal Code Section 1299.04.) provides that a bail fugitive recovery person, a bail agent, bail permittee, or bail solicitor who contracts his or her services to another bail agent or surety as a bail fugitive recovery person to investigate, surveil, locate, and arrest a bail fugitive, any bail agent, bail permittee, or bail solicitor who obtains licensing after January 1, 2000 and engages in the arrest of a defendant pursuant to Penal Section 1301 shall be at least 18 years of age, not have a felony conviction, and complete the coursework described in the bullet points below. Upon (More) AB 2238 (Spitzer) Page 4 completing the coursework, the person shall carry certificates of completion with him or her at all times when working. This training includes: A 40-hour, power-of-arrest course certified by the Commission on Peace Officer Standards and Training pursuant to Penal Code Section 832. A minimum of 12 hours of classroom education, certified pursuant to Insurance Code Section 1810.7, on bail laws and regulations, rights of the accused, ethics, and apprehension of bail fugitives. A (3-hour) course of training in the exercise of the power to arrest offered for prospective security guards pursuant to Business and Professions Code Section 7583.7. Existing law provides that an individual authorized to apprehend a bail fugitive pursuant to the Act (authorized individual) must comply with all laws applicable to that apprehension. (Pen. Code 1299.05.) Existing law provides that before apprehending a bail fugitive, an authorized individual shall have in his or her possession proper documentation of authority to apprehend issued by the bail or depositor of bail as prescribed in Penal Code Sections 1300 and 1301 and that the documentation include the name and address of the authorized individual and the name and principal business address of the bail agency, surety company, or other party contracting with authorized individual to apprehend a bail fugitive. (Pen. Code 1299.06.) Existing law provides that an authorized individual shall not represent himself or herself in any manner as being a sworn law enforcement officer, or use a badge, fictitious name, or uniform that represents himself or herself as belonging to a governmental entity. (Pen. Code 1299.07.) Existing law provides that, except under exigent circumstances, an authorized individual shall, prior to and no more than six (More) AB 2238 (Spitzer) Page 5 hours before attempting to apprehend the bail fugitive, notify the local police department or sheriff's department of the intent to apprehend a bail fugitive, the name of the fugitive, and when and where the apprehension will be attempted. (Pen. Code 1299.08, subd. (a). Existing law provides that if an exigent circumstance does arise prior to notification, the authorized individual shall notify the local police department or sheriff's department immediately after the apprehension, and upon request of the local jurisdiction, shall submit a detailed explanation of those exigent circumstances within three working days after the apprehension is made. (Pen. Code 1299.08, subd. (b). Existing law provides that an authorized individual shall not forcibly enter a premises, except as provided for in Penal Code Section 844. (Pen. Code 1299.09.) Existing law provides that an authorized individual shall not carry a firearm or other weapon unless in compliance with the laws of California. (Pen. Code 1299.10.) Existing law provides that any person who violates or conspires to violate the Act, or who hires an individual to apprehend a bail fugitive knowing that the individual is not an authorized individual, is guilty of a misdemeanor, punishable by a fine of $5,000 and/or imprisonment in the county jail not to exceed one year. (Pen. Code 1299.11.) Existing law provides that the Act shall remain in effect only until January 1, 2005; and as of that date is repealed unless a later enacted statute, enacted before January 1, 2005, deletes or extends that date. (Pen. Code 1299.12.) Existing law allows a bail agent or surety company, any time prior to forfeiture of bail, to surrender a defendant in a specified manner to the custodial officer who had custody of the defendant prior to his or her release and authorizes the court to order the bail exonerated. (Pen. Code 1300.) Existing law provides that a bail agent may "himself arrest [a (More) AB 2238 (Spitzer) Page 6 bail fugitive] defendant," or by written authority endorsed on a certified copy of the undertaking or certificate of deposit, may empower any person of certified age to do so. (Pen. Code 1301.) Existing law provides that an out-of-state bail agent or other person who arrests a bail fugitive in California must deliver the defendant to the court within 48 hours of arrest before whom the defendant is required to appear, or to the custody of the sheriff or police in the appropriate county or city. (Pen. Code 1301.) Existing law provides that a California bail agent who arrests a bail fugitive out-of-state must deliver the defendant to the court within 48 hours of arriving in California. (Pen. Code 1301.) Existing law provides that a private person, in an attempt to make an arrest for a felony offense, may break open a door or window in pursuit of a person after having demanded admittance, explaining the purpose for admittance is desired. (Pen. Code 844.) Existing law provides that the Insurance Commissioner shall regulate licensure of any person advertising or engaging in the business of executing, delivering, or furnishing bail bonds. (Ins. Code 1800 et seq.) This bill extends the sunset on the Bail Fugitive Recovery Persons Act from January 1, 2005 to January 1, 2010. This bill directs the California Research Bureau in the California State Library to conduct a study of the Bail Fugitive Recovery Act, as specified, and to submit a report thereon to the Legislature no later than January 1, 2009. COMMENTS 1. Need for This Bill (More) AB 2238 (Spitzer) Page 7 According to the author: When a fugitive vanishes after having his/her bail paid by a bail bonds person, a "bail fugitive recovery person" (i.e. a bounty hunter) is often dispatched to find the fugitive. Local law enforcement does not always have the resources to apprehend these individuals, particularly if they leave the immediate jurisdiction. Prior to 2000, "bail fugitive recovery persons" were not required to meet any background requirements, have any training or communicate their intentions to apprehend a bail fugitive to local law enforcement. These bounty hunters had broad powers in their pursuit of fugitives. AB 243 (Wildman-1999) established the "Bail Fugitive Recovery Persons Act." Under this law, bail fugitive recovery agents must complete educational courses on areas such as power of arrest, firearm training and the duties of a bail fugitive recovery person. Furthermore, bounty hunters must notify law enforcement 6 hours before they make arrest. Another provision mandates that bail fugitive recovery agents cannot wear a badge or uniform that identifies them as a member of local, state or federal law enforcement. A bounty hunter is not allowed to be a convicted felon. A violation of any of these requirements is a misdemeanor. The provisions of AB 243 will sunset on January 1, 2005. AB 2238 will simply extend the sunset deadline of the "Bail Fugitive Recovery Persons Act" to January 1, 2010. In addition, a study provision has been added to the bill to address the impact of this Act on the bounty hunter industry. Accountability is necessary for the bounty hunter (More) AB 2238 (Spitzer) Page 8 industry. Extending the original provisions of the "Bail Fugitive Recovery Persons Act" will ensure this accountability. AB 2238 will continue the training requirements of bail fugitive recovery agents and the requirements that they inform local law enforcement of their intentions to apprehend an individual. 2. Background on the Bail Fugitive Recovery Persons Act The Bail Fugitive Recovery Persons Act was enacted by AB 243 (Wildman), Chapter 426, Statutes of 1999, with the goal of providing accountability over those persons who apprehend bail fugitives, often known as "bounty hunters." Prior to enactment of the Act, there were few requirements for working in this field. If a bounty hunter was not also a state licensee under other provisions such as bail agents, private investigators, or private security, there was a lack of required training. The Act established background and training requirements, as well as protocols for communication with local law enforcement. However, the Act did stop short of establishing licensure of individuals involved in the bail fugitive recovery industry. Some of the included individuals will be licensed bails and subject to the regulation of the Department of Insurance and some will be required to complete a Department-certified course. Some persons will be required to complete a course approved by the Commission on Peace Officer Standards and Training (POST). POST maintains the curriculum and certifies presenters, but does not directly teach or oversee the course. The Department of Consumer Affairs' Bureau of Security and Investigative Services (BSIS) licenses the training centers that offer the third required course required of some included individuals, and the department licenses and regulate private investigators, a class of persons authorized to apprehend bail fugitives. The Act did not specifically charge any of these three state entities with overseeing the provisions of the Act and there is no central database of course completion. The Act essentially created a self-policing regulatory scheme that provides for potential compliance checks when a bounty (More) AB 2238 (Spitzer) Page 9 hunter is hired or when he or she has apprehended a bail fugitive. Those who have completed the required training must carry proof of completion. A person hiring a bail fugitive recover person may, in the process of selecting an appropriate person and to avoid potential liability pursuant to Penal Code Section 1299.11, confirm completion of requirements. Additionally, a check could come in the field or subsequent to an apprehension by a law enforcement entity. The other provisions of the Act would presumably be enforced through complaints and checks in the field. At the time that AB 243 (Wildman) was enacted in 1999, industry sources informed the Committee that an estimated 25 to 50 individuals in the State of California who made a living as full-time bounty hunters. Several more enforced bail contracts on a part-time basis. Since the Act went into effect, the number of full-time authorized bounty hunters has fallen to approximately a dozen. 3. Felons are Prohibited from Acting as Bail Fugitive Recovery Persons The Act requires that bail fugitive recovery persons shall not have been previously convicted of a felony. It appears from the legislative record for AB 243 that it was understood that a background check would occur as part of the security course certified by BSIS (Department of Consumer Affairs' Bureau of Security and Investigative Services). The author of AB 243 asserted that a bounty hunter who took a class for security guards about powers of arrest would be fingerprinted and subject to a background check because the prospective bounty hunter would necessarily be licensed as a security guard. However, according to the staff at BSIS, there is no background check requirement to enroll in the requisite course. Moreover, the staff explained that even if a person was seeking a security guard license and had a background check completed, a convicted felon would not necessarily be precluded from passing a (More) AB 2238 (Spitzer) Page 10 background check for a security guard position. The Department of Insurance licenses and regulates bail surety companies and bail licensees. While the department conducts background checks for the issuance of a license to a bail, not all of the persons included within Penal Code Section 1299.04 are bails. Therefore, although there is a requirement pursuant to Penal Code Section 1299.04 that a bounty hunter not have been convicted of a felony, it is not clear that there is a regulatory structure in place to ensure that background checks are conducted. Discussions with interested parties and consultants from other committees indicates that neither the Department of Insurance or the Department of Consumer Affairs is interested in regulating Bail Fugitive Recovery Persons, even where that would involve little more than confirming that such a person has no felony record. SHOULD THE LAW SPECIFICALLY REQUIRE BACKGROUND CHECKS BE REQUIRED ON PROSPECTIVE BAIL FUGITIVE RECOVERY PERSONS SO AS TO CONFIRM THAT THE PERSON DOES NOT HAVE A FELONY CONVICTION? IF A BACKGROUND CHECK IS REQUIRED FOR A BAIL FUGITIVE RECOVERY PERSON, WHAT AGENCY OR DEPARTMENT SHOULD RECEIVE OR SUPERVISE THE BACKGROUND REPORTS? SHOULD THE DEPARTMENT OF INSURANCE BE DESIGNATED TO CERTIFY THAT BAIL FUGITIVE RECOVERY PERSONS MEET STATUTORY REQUIREMENTS, AS THE DEPARTMENT REGULATES AND LICENSES OTHER ENTITIES ENTITLED TO PROVIDE AND NEGOTIATE BAIL? 4. Issue of Consistency in Training Requirements among those Persons Authorized to Arrest Bail Fugitives Although the Bail Fugitive Recovery Persons Act is intended to provide accountability to this industry, not all provisions of (More) AB 2238 (Spitzer) Page 11 the existing law apply equally to all persons involved. Penal Code Section 1299.02 provides that there are essentially five categories of persons who are authorized to apprehend, detain, or arrest a bail fugitive, although two of these categories involve out-of-state licensees. Penal Code Section 1299.04 requires training and background requirements for specified classes of bail recovery personnel - 1) bail fugitive recovery persons who act under contract with the licensee who provided bail, and 2) those persons who obtained a bail agent, bail permittee, or bail solicitor license after January 1, 2000. The law exempts bail licensees who were licensed at the time of the Act's enactment from the additional training requirements if they apprehend only their own clients. Licensed private investigators are also authorized to apprehend bail fugitives. However, private investigator training given to prospective bounty hunters may differ from that received by other fugitive recovery persons. This raises the issues of whether training should be more broadly required and whether training should be standardized. 5. Unpublished Opinion Describing the Bail Fugitive Recovery Act A 2002 unpublished appellate decision described the Bail Fugitive Discovery Act as follows: "The state statutes governing the arrest of bail fugitives do not manifest comparable indices of government participation in the arrest of a bail fugitive by a person who is not a certified law enforcement officer. Rather than removing all legal barriers to taking a fugitive into custody, the statutes place legal restrictions. They limit the category of person who may make such an arrest ( 1299.02) and require the apprehended fugitive to be delivered to the sheriff or court within 48 hours of arrest. ( 1301.) Contrary to appellant's argument, the 48 hour delivery requirement ( 1301) does not reflect the government's desire to share the 'fruits' of the private arrest; the timely delivery requirement is specifically for the protection of the defendant." (More) 6. Newspaper Story of Bail Fugitive Recovery Incident under which Bounty Hunters were Charged under the Act An April 7, 2002 story published in Inland Valley Daily Bulletin (Ontario, CA) described an incident in which two bounty hunters were charged with a crime under the Bail Fugitive Recovery Person Act and a charge of bringing a firearm onto school grounds. The bounty hunters in this incident tracked a fugitive to a grade school where he dropped off his 7-year-old daughter. They apprehended the man at gunpoint in view of many children and parents. The bounty hunters failed to notify law enforcement about the apprehension, although that is required under the law. The article noted that the law includes a gray area about the legality of bounty hunters carrying loaded firearms when apprehending fugitives. Some bounty hunters that do not have concealed weapons permits rely on a provision that allows a person to carry a concealed and loaded firearm when "engaged in the act of making or attempting to make a lawful arrest." (See, Pen. Code 12031, subd. (k).) 7. Lack of Evaluation Data - Bill Includes Study to be Completed by January 1, 2009 Interested parties argue that oversight of bail fugitive recovery should continue. However, there is a lack of objective data about the impact of changes over the past four years. Although the enacting legislation did not include an evaluation or review tied to the sunset extension, the legislative history of the preceding legislation, AB 2733 (Wildman), vetoed in 1998, may be instructive. Because a bail fugitive recovery law essentially creates or codifies powers of arrest for non-peace officers, analysis of the 1998 bill suggested that a report on the implementation of the Act should be submitted to the Legislature. The existing law does not require any form of report to the Legislature. (More) AB 2238 (Spitzer) Page 13 Additionally, because there was no state agency mandated with directly regulating these persons and, as noted above, the educational provisions are performed by three separate entities, there is no single agency that has maintained evaluative data on the success of this program. This bill has been amended to require a report by the California Research Bureau to the Legislature on the "structure and implementation" of the Act. The report is due no later than January 1, 2009. ***************