BILL ANALYSIS                                                                                                                                                                                                    







                          SENATE COMMITTEE ON Public Safety
                             Senator Bruce McPherson, Chair     A
                                2003-2004 Regular Session       B

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          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?





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          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  




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               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  




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          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  




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          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  




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          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
           




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          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  




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              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  




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          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  




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          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  




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          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."






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          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.   




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          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.



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