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
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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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