1 PBUS – Certified Bail Agent – Course IV
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COPYRIGHT 2009 BY PROFESSIO AL BAIL AGE TS OF THE U ITED STATES. ALL RIGHTS RESERVED. Warning: This publication is protected by U.S. Copyright Law. Reproduction, photocopying, storage, transmission or any other sharing with any unauthorized third party of any portion of this publication by any means (including electronic redistribution) is strictly prohibited and may result in legal action.
The principle of bail in the American court system is viewed as a guarantee the defendant will appear in court when scheduled which directly conflicts with the stark realities of the matter. At the time a defendant is arrested a bail setting decision is made with only sketchy facts available concerning the case and about the defendant. This has been the nucleus of concern outlining a conflict between the purpose and principle of bail. The fact of the matter is bail does not guarantee an individual will appear on the date and time certain. If the defendant posted a cash or property bail [true in less than 15% of the time] the only guarantee is the court will forfeit that bail and keep the cash or property but not of justice being served by disposition of the case. If the defendant received a bail of personal or own recognizance then the court has little remedy save that of issuing an order for an arrest warrant; applicable, too, in cases of 10% bail posted directly with the court. If bailed through a professional bondsman then the court is cognizant of the fact the bondsman will usually produce the defendant within the grace period and guaranteed the full amount of bail will be paid should all efforts to produce the defendant. This is where the bond person's ace-in-the-hole comes in ... the recovery agent or bail enforcement agent. Bail bond agents (sureties) are responsible for the financial end of a defendant absconding on his bond and failing to appear in court, hence it is more prudent for them to contract the services of a professional bail enforcement agent. Bail enforcement agents can be found in two main categories: • The gun flashing, Hollywood styled Rambo-type 'wannabe' and • The ones who promote a business profile while maintaining an impressionable cache of successfully completed cases.
The first category of 'bounty hunter' eventually tests a bail agent's patience and possibly even taps into his liability insurance with tort actions and criminal sanctions; The second category of professional bail enforcement agent is the type a surety agent/agency will contract with to retrieve the bail jumper without negative sanctions being imposed. A bounty hunter is just that ... a bounty hunter. A bail enforcement agent is a professional in his field and recognized as such throughout the law enforcement community of these United States. These professional and experienced bail enforcement agents are certified through extensive training, and carry all proper licenses for the states and provinces they operate in.
Hiring a Bail Enforcement Agent
Bail enforcement agents who keep a low profile are generally the wisest choice. Conversely, those who advertise their services as gun-toting, macho headhunters clothed in camouflage will invariably subject the bail agent to serious civil law suits and possibly even some criminal sanctions should a situation deteriorate and they decide to live up to their self-proclaimed image. A bail agent or bail agency seeking to engage the services of a bail agent should: 2
> Check the applicant's reputation with other bail agents, > Request the applicant to endorse a 'release' and then conduct a background check, > Require the applicant to endorse a 'Hold Harmless' agreement in the event an illegal act is committed during the course of their duties, > Conduct a verification of the applicant's qualifications, credibility and certifications. > Request and maintain file copies of the applicant's licenses.
In today's extremely litigious society the decision to employ the services of a recovery/bail enforcement agent is a critical one. This decision must be made with extreme care and caution, as certain liabilities cannot be overlooked. Police officers make arrests. Bail enforcement agents make apprehensions. As a bail agent once said, "There is no reason to out fight or out run anyone you can out think."
Professional Recovery Agents/Bail Enforcement Agents
PBUS as well as professional bail enforcement agents take a strong stand against gun toting, self-styled bounty hunters that have received little or undisciplined training and play off the image and successful stature of the professional bail enforcement agent. We, as bail agents, have had to defend our trade industry against the acts of these non-professionals much like law enforcement has had to defend themselves as a whole for the illegal acts of a few. PBUS has always maintained the doctrine that bail enforcement is not the act of arresting an individual but of apprehending that person and returning him/her to the justice from which they originally fled without liability concerns. We are cognizant of the fact we reside in an extremely litigious society. In conforming to such residency standards we long ago established strict in-house rules and ethics within the disciplines of the bail industry while bearing foremost in mind the safety and protection of the general public. Being a professional bail enforcement agent requires an extensive, definitive qualifying certification course before one can receive the credentials of a professionally trained bail enforcement agent. There is no recourse and there are no alternatives. Professional bail enforcement agents are proficient in the various facets and descending phases of bail enforcement and possess all applicable and required licenses for their particular areas of operation. There can be no Rambos and there can be no self-style bounty hunters. Within the ranks are only modern day professionally trained bail enforcement agents who are accredited and certified for this industry. What Is A Bounty Hunter?
A bounty hunter, in the modern vernacular, Bail Enforcement Agent or Fugitive Recovery Agent, is a duly appointed agent (or deputy) of the Surety (Bail Bondsperson) who posted the bail obligation for the Defendant. He/she is, for all intents and purposes, the representative of the Surety and as such has all due authority designated to the Bondsperson to act in his place and stead, much like an extended, but limited, power of attorney. A bail enforcement or fugitive recovery agent wears many hats and is proficient in all areas of his professional expertise.
The Arrest
Arrest. What is it? According to Black's Law Dictionary the absolute definition of 'arrest' is the apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime.
An often misunderstood concept is that of the right of a private citizen to affect an arrest. In the days of 3
medieval England citizen's were encouraged and often rewarded by the Sheriffs of the Realm and Forests, in fact, they relied upon such citizen participation in apprehending alleged 'bad guys'. The right of an English citizen to make arrests was with the same authority as if the Sheriff himself had made the arrest. It was the concept of 'posse comitatus'. The validity of a citizen arrest in modern times has been argued strongly via the Ninth Amendment preserving an individual's natural rights to self preservation and to the defense of other parties. Most of the laws in these United States regarding the rights of citizens to affect an arrest stem from the root effect of the Second amendment.
Most states in this country recognize the obligations of citizen arrest when the alleged offense was committed in the presence of the person making the apprehension or if that person has reasonable reason to believe the arrestee is wanted on a felony count. Also recognized is the legality of a citizen's arrest during any assistance of a law enforcement officer or any other person authorized to make an arrest. Some of the more questionable statutes still 'on the books' include Massachusetts which allows for the arrested person to sue the person who made the citizen's arrest for false arrest or false imprisonment should the original charges be dismissed in court. In Kentucky, under Criminal Code 37; S 43, 44, a citizen is allowed to kill a fleeing felon in the course of a citizen’s arrest. Whereas Utah allows for citizens to arrest but strictly forbids any deadly force in effecting the action no matter what the provocation. Bail enforcement agents, by definition, are affecting a citizen's arrest when apprehending their fugitive under the protections of the fugitive having violated a civil contract.
Arrest Authority
Who may arrest? Any law enforcement officer, to include: policeman, sheriff or his deputies, state police officer, federal officers, security personnel within their territorial jurisdiction (usually the job site such as on the property of a contracted business) and any other authorized person (this includes bail enforcement agents when properly titled). An arrest can be made with or without a warrant dependent on the circumstances.
Warrant
A warrant is an order issued by the proper authority such as a Magistrate or Judge and, in some cases, a Justice of the Peace. A warrant describes the person to be arrested and lists the offense(s) the person is charged with. A warrant for arrest is necessary unless under one of the following conditions:
> The law enforcement officer has reasonable grounds to believe that a warrant has been issued,
> The law enforcement officer has reasonable grounds to believe that a crime has been committed and the person being arrested is the suspect.
Arrest Process
The police can arrest a person and release them without filing a formal charge. This usually happens when it is decided there is not enough evidence to hold the arrested person. When a person is arrested and charged with a minor violation of the law he/she will usually be given a date to appear in court and then released with a summons after being photographed and fingerprinted. If the charge is more serious than a minor offense then bail may have to be posted before the arrested person is released.
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Rights under Arrest
A citizen's rights are clearly defined in the Fifth, Sixth and Eighth Amendments contained in the Bill of Rights and in the United States Constitution .
" o person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law..." Fifth Amendment
"In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense." Sixth Amendment
"Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted." Eighth Amendment
Since the inception of the Fourteenth Amendment to the Constitution, all states have had to literally guarantee the rights afforded by the Fifth, Sixth and Eighth Amendments, because of the provision: " o state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States."
The Apprehension
The use of such terms as, "You're under arrest" or "Freeze" or "You're going to jail" or any other terms that can be considered as a threat should always be avoided. 'Respect' is the key operative term to be adhered to at all times when affecting the apprehension of a bail jumper. Being led away in handcuffs is demeaning enough without a defendant having to bear any disrespectful language or attitude. Irritation behavior on the part of the agent will only cause problems. After having taken his/her principal into custody the recovery/bail enforcement agent should leave the immediate area posthaste thereby avoiding any challenges from the principal's family and/or friends. Any continuing conversation will only serve to exacerbate the situation.
Transport
Transportation of bail skips must be conducted safely and prudently. It is advisable for the agent to photograph a prisoner prior to transporting him/her, especially on a long trip. If a male agent is transporting a female prisoner, it is advisable to have a witness along for the ride so that there will be no question as to any accusations of 'misconduct' during the ride.
Your Arrest: Procedural Safeguards
If a bondsman or recovery agent finds him/herself arrested during the course of pursuing a fugitive, the decision whether or not to comply with a law enforcement officer's request to answer questions is entirely up to them. However, one should carefully consider the long- range outcome because anything you say or write can and certainly will be used against you in a court of law. If offered any sort of compensation or coerced by force into saying or signing anything one should advise an attorney immediately of the situation and/or request of the officer to have the 'officer in charge' present.
When placed under arrest, the arresting officer is obligated to identify him/herself with name and badge number, if the situation allows for such a conversation. If the officer doesn't volunteer the information upon request, one should not force the issue. The information will be supplied on the 5
arrest report.
One should not argue or resist; an additional charge of 'resisting arrest' could be applied. When you are making the arrest as a bondsman/recovery agent you cannot charge a principal with resisting arrest even though the arrest is within the parameters of the law governing citizen’s arrest. It is legal for a law enforcement officer to search or 'frisk' a person and any areas within that person's immediate control. Upon initial confrontation an officer may frisk for weapons if he/she feels an imminent threat to personal safety exists (as a bondsman or recovery agent you can be assured you will be frisked for weapons).
When you are affecting an arrest, do not, under any circumstances, conditions or provocation offer a captured fugitive any legal advice, merely suggest you are not an attorney and cannot give the advice requested.
Unlawful Arrest
In Plummer vs. State, 136 Ind. 306, citizens are allowed to resist an arrest if said arrest is unlawful. This has been upheld in the United States Supreme Court in John Bad Elk vs. United States, 177 U.S. 529, wherein the Court stated: "Where the officer is killed in the course of the disorder which naturally accompanies and attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed."
"An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. If the arresting officer is killed by one who is so resisting, the killing will be no more than involuntary manslaughter." Housch vs. People, 75 111. 491: reaffirmed and quoted in State vs. Leach, 7 Conn. 452; State vs. Gleason, 32 Kan. 245; Ballard vs. State, 43 Ohio 349; State vs. Rousseau, 241 P. 2d 447; State vs. Spaulding, 34 Minn. 3621.
"When a person being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justifiable." Runyan vs. State, 57 Ind. 80; Miller vs. State, 74 Ind. 1. "These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence." Jones vs. State, 26 Tex. App. I; Beaverts vs. State, 4 Tex. App. I 75; Skidmore vs. State, 43 Tex.
Where Do Bail Enforcement Agents Get Their Authority to Apprehend?
Surety upon a bail bond or other undertaking have the right to surrender their principal at any time, and to this end may pursue and seize him wherever they may find him, even though they may be in another state. While the law is well settled and hardly open to argument on this point there has been at times a failure to understand the reason for the rule, and this strictly private right has been confused with the governmental process of extradition. The two remedies are distinct and independent and are only to be confused through lack of understanding of the nature and origin of the relationship of bail and principal.
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ature of the Relationship
It is a somewhat common error to suppose that a defendant released upon bail is thereby relieved from all custody and restraint and is under no obligation except that of appearing in court at such time during the prosecution of his case the law requires. Inherent in this mistaken conception is the thought that the purpose of the device of bail is to recover the penalty of the bond upon default in appearance. This is the opposite of the truth. The primary purpose of bail is, and always has been, the retention of control over the defendant to the end that justice might be administered. The modern system is but a development of common law. It has been called: "An ancient and extremely vigorous form of suretyship or hostage ship, which rendered the surety liable to suffer the punishment that was hanging over the head of the released prisoner." (2 Pollock & M. History of Eng. Law, p. 589.)
Thus, while in a sense the defendant is given a degree of freedom, in contemplation of the law the dominion of the court is continued in the person of the surety, and there is no such relaxation or abandonment thereof as would require new process to reassert. This fundamental concept is essential to an undertaking of the rights that arise out of the relationship. In but slightly varying language the same idea has been expressed by the courts from early times:
"The doctrine is well settled that, when bail is given, the principal is regarded as delivered to the custody of the sureties. Their dominion is a continuance of the original imprisonment." (Taylor v. Taintor, 16 Wall, 366, 21 L. Ed. 287; State v. Ligererfeit, 10J NC775, 14 S. E. 75.)
The books have clearly expressed this idea in regard to the relation of the principal to his bail, and the authorities are pretty well agreed upon it. "A man's bail is looked upon as his jailers of his own choosing, and the person bailed is, in the eye of the law, for many purposes esteemed to be as much in the prison of the court by which he is bailed as if he were in the actual custody of the proper jailer." (2 Hawk, P. C. 140)
"It is also said that, when the obligation of bail is assumed, the surety becomes in law not only the jailer of his principal, as his custody is constructively a continuance of the original imprisonment, but though he cannot confine him except where actually necessary, and temporarily, for the purpose of surrender, he is subrogated to all the other rights and means which the state possesses to make his control of him effective." (Pickelsimer v. Glazener, 173 . C. 630, 92 S. E. 700. And see etrograph Mfg. Co. v. Scrugham, 197 . Y. 377. 90 . E. 962; Com v. Miller, 105 Pa., Super, 56, 160 A. 240; C. J. Sec. Vol. 8, p. 39, n. 74.
"Under a bail bond or recognizance the principal is, upon filing of the bond, released in the custody of his bondsmen. He is still constructively, in the custody of the law. The dominion of the surety is a continuance of the original imprisonment." (In re Lexington Surety & I. Co. 272 . Y. 210, 5 . E. (2nd) 204.
"The surety, in assuming the obligation of bail, becomes in the law the jailer of his principal and has custody of him. This custody is merely a continuance of the original imprisonment. The sureties are subrogated to all the right and means which the state possesses to make the control effective." (Grain v. State, (Ct. Cr. App. Okla.) 90 Pac. (2nd) 954, quoting An. J., Vol. 6, p. 112, Sec. 165.)
"At common law, when bail was given and the principal relieved from the custody of the law, he was regarded, not as freed entirely, but as transferred to the friendly custody of his bail."(Stale v. Schenk,I38 C.560,495.E.917.) 7
Right to Surrender
If it were true that the principal obtained his freedom except in a limited physical sense it would follow that he would have no obligations beyond that of making appearance when required and, correspondingly that the sureties would be limited to a contractual right to enforce this obligation. But the rule is clear that the sureties may relieve themselves at any time from the responsibilities of custody by surrender of the principal into the custody from which he was taken by giving bail.
"The obligation of the bail in this class of cases is to produce the principal before the court upon demand, and at any and all times surrender him in accordance with its mandates. But this obligation is one of which the bail may be relieved at any time by voluntary surrender of the principal. In contemplation of the law the principal is in the custody of his bail, who may take him where he pleases and detain him or surrender him into court into the custody of the sheriff who has process against him or, if the bail concludes his principal meditates flight, or for any reason desires no longer to be held responsible for the appearance of the principal, he may cause him to be imprisoned in the common jail of the county, and thus exonerate himself from his obligation." (People use of Masterson v. Hathaway, 296 III. 42, 68 N. E. 1053.)
"It has long since been said that the bail have their principal on a string which they may pull whenever they please and surrender him in their discharge." (6 Modern 231 Pickelsimer v. Glazener, supra. CF. Exparte, Chance, (D). C. Tex.) 2 Fed. Supp. 393.)
Right to Arrest
It is equally clear that in order to effectuate their right to relieve themselves from the responsibility of custody the sureties have the right to arrest their principal. This may be done in person or by agent and may be accompanied by the use of such force as is reasonably necessary. No new process is necessary. In effect the arrest amounts to no more than the taking into actual custody of one already under his dominion. The scope of the right was stated in Com. v. Brickett, 8 Pick.) Mass.) 138 as follows:
"By the common law the bail has the custody of the principal and may take him at any time and at any place. The taking is not considered as service of process, but as a continuation of the custody which had been, at the request of the principal, committed to the bail. The principal may, therefore, be taken on Sunday. The dwelling house is no longer the castle of the principal, in which he may keep himself to stay off the bail. If the door should not be opened on demand at midnight, the bail may break it down, and take the principal from his bed, if that measure shall be necessary to enable the bail to take the principal."
The Supreme Court of the United States, in the case of Taylor v. Taintor 16 Wall, 366 used the following language, which has been quoted in the decisions ever since:
"(The sureties) . . . whenever they choose to do so may seize him and deliver him up in their discharge; and if this cannot be done at once, they may imprison him until it can be done. They may pursue him to another state; may arrest him on the Sabbath, and if necessary, break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the re-arrest by the sheriff of an escaping prisoner." Also see Pickelsimer v. Glazener, supra, and cases collected in 73 A, L. R. 1370; Cartee v. Staet, 162 Miss. 272, 139 So. 620; U.S. v. Lee, (D. c. Ohio) 17 Fed.
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It is not necessary that the surety make the arrest in person. He may delegate the right to another as his agent.
"/ see nothing, on general principles, against allowing this power to be exercised by an agent or deputy and no case is to be found where the right has been denied. It is a general rule of law even with respect to public officers, that their ministerial acts may be performed by deputy and with respect to private individuals, the law recognizes the act of an authorized agent as equal to that of the principal; and there is no principal of policy which renders it necessary to make this an exception." (Nicolls v. Ingersoll, 7 Johns, 154.) And see cases cited herein.
The sureties are not required to have a warrant or order of court. The right of bail to seize the principal arises from the nature of the undertaking; and does not depend on new process. The rule is said to rest upon the reason that the seizure "is likened to the rearrest by the sheriff of an escaped prisoner." (Taylor v. Taintor, supra.) "It is sufficient to say . . . that in immemorial legal theory the petitioner never was discharged from custody. The giving of the recognizance by him only operated to transfer the custody of his person from the sheriff to his sureties. Thenceforth, they, instead of the sheriff, were his jailers. There was, therefore, no occasion for the issuance and service of a new order of arrest nor for a warrant of commitment." (Re Siebert, 61 Kan. 112, 58 Pac. 971)
This was the rule at common law, though in some places the use of a bailpiece was recognized. In some jurisdictions today it is required that the sureties provide themselves with a certified copy of the bond or recognizance. But, as pointed out by the Supreme Court of New York in Nicolis v. Ingersoll, 7 Jonns. 154:
"The power of taking and surrendering is not exercised under any judicial process, but results from the nature of it, but is merely a record or memorial of the delivery of the principal to his bail on security given." See Am. J. Vol. 6, p. 112, Sec. 167; 3 A. L. R. 188;73A.LR. 1370.
Arrest in Another State
The right of the sureties to pursue their principal into another state and to arrest him there was well recognized in the early decisions and has been reaffirmed in the later ones."Bail has no power to arrest the principal in a foreign country. (Reese v. S. 9 Wall, 13.) But, as between the states of the American Union, the bail of one held to answer in one state may arrest the principal in another state, and no requisition is necessary." (Salles v.Werner 171 111. App. 96.)
"The relation in which the several states composing the Union stand to each other, the bail in a suit entered in another state have a right to seize and take the principal in a sister state." (Republics v. Gaoler of Philadelphia 2 Yeates 263.)
"The next inquiry is as to the right of bail to take the principal out of the state in which the recognizance was entered into. I do not perceive how any question of jurisdiction can arise here. The power of taking and surrendering is not exercised under any judicial process, but results from the nature of the undertaking by the bail. It cannot be questioned by that bail in the common pleas would have the right to go into any other county in the state to take his principal. This shows that the jurisdiction of the court in no way controls the jurisdiction of the state to affect this right between the bail and his principal. Their authority arises more from contract than from the law; and as between the parties, neither the jurisdiction of the court nor of the state controls it; and so bail may take the principal in another jurisdiction or another state, on the ground that a valid contract made in one state is enforceable in another according to the law there.
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"If the principal is to be considered as standing in the situation of a prisoner has escaped from the arrest of the sheriff, according to the language of one of the cases, can there be any reasonable doubt but a sheriff, in such case, would have a right to pursue and arrest his prisoner, in a neighboring state; and, by parity of reasoning, bail must have the like authority. "( icolls v. Ingersoll, 7 Johns, ( . Y.) 145).
It will be noticed that the exercise of the right to arrest has a dual aspect, on the one hand the surety is considered as enforcing a contract, and on the other he is looked upon as acting as an officer of the court and thus subrogated to some of the rights of the state. The right itself, however, is in no sense derivative, as has been seen.
Proceedings in extradition have become so much the usual thing that the private right of the surety has been somewhat overlooked, or even confused with the former. The distinction is made clear in the later cases:
"The right of the surety to recapture his principal is not a matter of criminal procedure but arises from the private undertaking arising from the furnishing of the bond. It is not a right of the state but of the surety. If the State desires to reclaim a fugitive from his justice in another jurisdiction it must proceed by way of extradition in default of a voluntary return. It cannot invoke the right of a surety to seize and surrender his principal, for this is a private and not a governmental remedy. It is equally true that the surety if he has the right is not required to resort to legal process to detain his principal for the purpose of making surrender. There is no conflict between the rights. Extradition can only be exercised by the government at the request of the government. Surrender by bail can be exercised only by the individual who is bail. The remedies are separate and distinct. As long as the principal remains within the jurisdiction the right of the bail to arrest and surrender him with process is conceded. As this right is a private one and not accomplished through governmental procedure, there would seem to be no obstacle in its exercise wherever the surety finds the principal. Needing no process, judicial or administrative, to seize his principal, jurisdiction does not enter into the question." (In re VanderAhe, 85 Fed. 959)
The right of a surety to seize his principal in another state entitles him to return him to the state he left and the bond requires his presence. The right of seizures without the accompanying right of return to the state where the bail was furnished would be without value. The rights of bail are not identical with those of the prosecuting government. They arise out of the relationship of principal and his bail, and are not altogether the result of subrogation to the rights of the government. They arise out of the relationship of principal and his bail, and are not altogether the result of subrogation to the rights of the government. The bail can surrender his principal before the bond is forfeited and arrest for that purpose without process. The state, however, cannot. The state can remove a defendant from another state only by extradition. It does not follow that the surety is under a like disability in returning the principal to the state from which he fled, to those surrender him. Bail does not acquire the right to seize and surrender the principal from the state through subrogation, since the state has no such right itself. It is an original right that arises from the relationship between the principal and his bail, and not one derived through the state." (Fitzpatrick v. Williams, (C. C. A. 5), 46 Fed. (2nd) 40, 73 A. L. R. 1306. Cf. In re Van der Ahe (7 Pa. D. R. 131; 20 Pa. Co. Ct. 395), 85 Fed. 959.
Authority for Arrest and Surrender by Surety
The Supreme Court of the United States, in the case of Taylor v. Taintor 16 Wall, 366 used the following language, which has been quoted in the decisions ever since:
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"(The sureties). . . whenever they choose to do so may seize him and deliver him up in their discharge; and if this cannot be done at once, they may imprison him until it can be done. They may pursue him to another state; may arrest him on the Sabbath, and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner".
Licensing
Some states require Bounty Hunters to have a 'Runners License' and/or to complete designated hours of classroom style training but most states do not have any regulation as of this publication regarding the bail enforcement industry. This is rapidly changing with a national trend towards states legislation to refine and define who bounty hunters are and what they can/cannot do. This grass roots movement requires all bail enforcement agents to successfully complete a certification or licensing procedure before being allowed to apprehend a fugitive bail jumper.
FAILURE TO APPEAR
A BO DSMA ’S PERSPECTIVE
When a defendant is scheduled for court and does not appear the judge orders a bench warrant [in the lower courts] or a capias [in the higher courts] to be issued for the arrest of the defendant. A copy of this failure to appear order is then sent to the bail bondsman who immediately dispatches his agents to locate and retrieve the absconded bail jumper. The bondsman is encouraged by the court to return the defendant through allowing a grace period before he is required to actually pay the bail amount. If the defendant is produced in the court by the bondsman's efforts before the grace period ends the bail forfeiture is struck and the bail amount does not have to be paid. The Surety (bail agent) who posts the bond with the court has the right to apprehend (arrest) the defendant and produce him/her to the applicable court from which he/she has fled. If done within a timeframe set by the court the Surety will be able to recover its losses. The Surety usually delegates this arrest authority to another, such as a Bail Enforcement Agent (bounty hunter).
Remedies for Bail Jumping
Bail bondsmen have extraordinary legal control over a person who has failed to appear on their bond and absconded from justice. Most bondsmen require the defendant being bailed to sign an extradition waiver allowing the bondsman, or his duly appointed representatives [bounty hunter/bail enforcement agent], to retrieve that person from another state and return him or her to the applicable courts' jurisdiction; few states do not recognize this long standing right of the bondsman and require a formal extradition hearing before the arrested defendant is returned to the state from which s/he originally fled. Most courts, however, contend that the right of the bondsman to apprehend his fleeing defendant and return that person to stand before the originating court is a private right stemming from contract law and not a right of the state [government]. The state must follow the rules of extradition as outlined within the parameters of law enforcement procedures.
SOME LIABILITY CO CER S
In recent years the Uniform Criminal Extradition Act (UCEA) has come into play more and more as regards the age-old practice of bail enforcement agents crossing state lines with a captured bail 11
skip. Individual states have passed legislation requiring bounty hunters to surrender their prisoners within the state of capture so that standard extradition procedures can be affected rather that the old method of being transported by the bounty hunter.
The Uniform Criminal Extradition Act came into play in Commonwealt h vs. Wilkinson, a case out of Massachusetts. Danny Noël was arrested in Oklahoma and released on bail through Bail Bond of Tulsa. Noël then fled to Massachusetts where he pursued and apprehended by Lance Allen Wilkinson on behalf of the Oklahoma surety. Wilkinson seized and returned Nole to Oklahoma and surrendered him to the lawful authorities. Wilkinson was later indicted in Massachusetts on charges of kidnapping and assault to which he interposed a defense of the bondsman’s privilege to return a fugitive defendant to custody.
Citing ‘Taylor vs. Taintor’, the Massachusetts Supreme Judicial Court (MSJC) analyzed the general proposition that it is a practice under common law for a bondsman, or his duly appointed representative, to apprehend and surrender his principal at any time and in any place for the purposes of said surrender, this includes the right to transport the defendant across state lines. The issue before the Court was whether the common law practice was abrogated by the inception of the Uniform Criminal Extradition Act, which had been in effect in the Commonwealth since 1937.
The Court imposed the UCEA of 1937 in their decision stating:
"Although the Act requires that the actual transfer of a fugitive must be accomplished through the Governor of the Commonwealth and the Executive Authority of the demanding state... the Act permits 'any credible person' to appear before a court's appropriate jurisdiction to have a warrant issued... the Act does not apply in part to private parties such as bondsmen. Therefore, under that statute a fugitive can be surrendered pursuant to the request of a private bondsman and still be afforded the benefit of the procedural due process requirements set out in the Act."
Thus, the Court concluded that the common law right of bondsmen to seize their principal was abrogated when the Uniform Criminal Extradition Act was enacted in 1937.
Also at common law bounty hunters have had the authority to "break into a residence and use force, if necessary, against a third party when searching for their bail fugitive". This has been upheld recently in State vs. Mathis, 1998 .C. LEXIS 847 ( orth Carolina, December 31 st 1998). The court in Mathis, after an extensive review of the bail laws around the country, vigorously affirmed the common law rights of bail agents. The court, when faced with the question as to whether bail agents had the right to enter a residence with one or more persons, stated...
"There is no difference between a house of which [the principle] is solely possessed, and a house in which he resides by the consent of another. Bond agreements giving, as a matter of law, the principal's consent for the sureties or their agents to break and enter his residence authorize them to enter even when the principal resides there with others."
The court compared the Mathis decision with the power of one resident of a dwelling to give consent to the police to search the premises, even if the search implicates the privacy interests of any other resident of the house. 42 USC 1983
The Federal Rights Statute (42 USC 1983) may invariably cause limitations to the bondsman's ability to apprehend a principal should they enlist the aid of a law enforcement officer in seizing their fugitive. Section 1983 of the statute provides redress for 'abuses' 12 committed 'under color of state law'. Bondsmen and recovery agents when effecting private sector arrests do not come under the category of 'state actor' or under 'color of state law' unless they engage the assistance of law enforcement. In this instance, the bondsman could become just as liable should the arrested person file in tort for any alleged abuse and violation of his/her civil rights. To establish an element of abuse under a deprivation of civil rights a person must prove the abuse was committed under a state created right, privilege or conduct, and by a person for whom the state is responsible thereby, a 'state actor' under 'color of state law'. Bondsmen and their agents are generally excused from this action but can and have been named in such torts when accompanied by police officers to make the arrest.
Firearms
PBUS has always taken a strong position against the use of firearms and unnecessary force. The reason is fundamental: Risk management is little more than enforcing a civil contract. A civil contract recognizes no geographical boundaries and the defendant, when entering into and endorsing the contract unquestionably agrees to its terms, conditions and enforcement. However, certain basic human rights and dignities are never abridged by such contracts. An agent is simply enforcing the conditions of the contract the principal has violated.
While the reason for an agent to carry a firearm may be for personal protection, there should never be any reason for an agent to display a firearm except in an instance of an immediate threat to his/her life or to the life of another.
Loss Expense Recovery
Record Keeping
The ability to successfully recover loss expenses requires keeping accurate and up-to-date records. Usually a condition precedent to loss recovery is for the defendant and any indemnitors are placed on notice and given an opportunity to cure the default. This can be accomplished on demand by certified mail with a return receipt requested. This action should be exercised immediately upon failure of the defendant to appear.
Itemized statements of expenses should be prepared for mailing to the indemnitor(s). They must be advised of the timeframe allowed by law to respond and make arrangements for payment(s) or legal action will surely follow which will include interest, itemized expenses, attorney fees, court costs, etc. If a timely response is not realized a suit should be filed according to schedule.
Accurate record keeping may not only justify any rate increases, but also conveys to the courts, legislators and the general public the costs being saved the taxpayers.
Legal Procedures and Strategies
Essentially, a bail agent is comparable to a highly specialized insurance agent. No insurance company can justify the existence or the rates of a bail agent unless the bail agent pays due claims in a proper and timely fashion. Provisions of the law apply equally to all concerned parties. To justify a long term need for the professional of a licensed bail agent, agents must avoid misuse of the system by 13 ambiguous definitions and interpretations of the rules and statutes simply to avoid producing a defendant or paying a judgment when it is due. In concise terms, a bail agent collects a premium to guarantee and to insure, to the court, that a defendant will appear in court on the date and time s/he is scheduled. If the defendant does not appear, the bail agent must either produce the defendant or be prepared to pay the bail bond judgment. State statutes as well as local rules and customs will dictate the course of action when extenuating circumstances prevail. Motions to extend judgment due dates, or to reduce the amounts of judgments, payments of fines or costs in lieu of judgments should only be filed when fully satisfied. Requesting a jury trial to hear a judgment case on forfeiture is a slap in the face to the entire system and to the bail industry in general. The filing of lawsuits to prevent regulatory authorities from enforcing rules and regulations is usually an exercise in futility. Not only will all applicable authorities become alienated but at best a bail agent may win the battle but in the end he/she will lose the war. Conversely, filing a civil suit against an indemnitor in quest of applying pressure to assist in producing a defendant is intelligent strategy. The filing of civil suits against both defendant and consignor(s) is in proper form and in keeping with a professional image. Filing a motion for an extension of time to produce the defendant is often successful when the bail agent proves s/he has worked extensively to locate the missing defendant and that the probably of producing that person is enhanced should they be allowed additional time to do so.
Code of Professional Conduct for Bail Enforcement Agents
Article One
Bail enforcement agents shall at all times fulfill the duty imposed upon them by their contract and by law, by serving the bail agent and community, and by protecting all persons against illegal acts, consistent with the high degree of responsibility required of their profession.
Definition:
=> The term 'bail enforcement agent' includes all appointed individuals who are legally authorized to exercise or effect bail arrest powers whether they are known by such title, or known as 'bounty hunter 1 or known as 'recovery agent'.
=> Service to the community is intended to include particularly the rendition of services of assistance to those members of the community who by reason of personal, economic social or other emergencies are in need of immediate aid.
=> This provision is intended to cover all violent, predatory and harmful acts, but also extends to the full range of prohibitions under penal statutes. It extends to conduct by persons not capable of incurring criminal liability.
Article Two
In the performance of their duty, bail enforcement agents shall respect and protect human dignity and maintain and uphold the human rights of all persons. 14
Definition:
=> The human rights in question are identified and protected by national and international law. Among the relevant international instruments are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration of the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the United States Declaration on the Elimination of all Forms of Racial Discrimination the Standard Minimum Rules for the Treatment of Prisoners.
National commentaries to this provision should indicate regional or provisions identifying and protecting these rights.
Article Three
Bail enforcement agents may use force only when strictly necessary and only to the extent required for the maintenance and performance of their assigned duty.
Definition:
=> This provision emphasizes that the use of force by bail enforcement agent should be exceptional; while it implies that bail enforcement agents may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or in assisting in the lawful arrest of their respective fugitive, no force going beyond that may be used.
=> National law ordinarily restricts the use of force by bail enforcement agents, and all other citizens, in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to be achieved.
Definition:
=> This prohibition derives from the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations Council, according to which: "Such an act is an offense to human dignity and shall be condemned as a denial of the purposes of the Charter of the United ations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other international human rights instruments."
=> The Declaration defines torture as: "... torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him/her or a third person information or confession, punishing him/her for an act he/she has committed or is suspected of having committed, or intimidating him/her or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the treatment of Prisoners."
=> The term 'cruel, inhuman or degrading treatment or punishment' has been defined by law 15
but should also be interpreted so as to extend the widest possible protection against abuses, whether physical or mental.
Article Six
Bail enforcement agents shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.
Definition:
=> 'Medical attention', which refers to services rendered by any medical personnel, including certified medical practitioners and paramedics, shall be secured when needed or requested.
=> It is understood that bail enforcement agents shall also secure medical attention for persons in their charge, victims of violations of law or of accidents occurring in the course of violations of law, and for any other person(s) requiring immediate medical attention.
Article Seven
Bail enforcement agents shall not commit any acts of corruption. They shall also rigorously oppose and combat all such acts.
Definition:
=> Any act of corruption is incompatible with the bail enforcement profession. The law must be enforced fully with respect to any bail enforcement agent who commits an act of corruption, as society cannot expect to enforce the law among their citizens if they cannot, or will not, enforce the law against individuals authorized to effect bail arrest.
=> While the definition of corruption must be subject to law, it should be understood to encompass the commission or omission of an act in the performance of or in connection with one's duties, in response to gifts, promises or incentives demanded or accepted, or the wrongful receipt of these once the act has been committed or omitted.
=> The expression 'act of corruption' referred to above should be understood to encompass attempted corruption.
Article Eight
Bail enforcement agents shall respect all law and this Code of Professional Conduct. They shall also, to the best of their ability and capability, prevent and rigorously oppose any violations of the law and the Code of Professional Conduct.
Bail enforcement agents who have reason to believe that a violation of any laws has occurred or is about to occur shall report the matter to lawful authorities and, where necessary, to other appropriate authorities or agencies vested with reviewing or remedial power.
Definition:
=> This Code of Professional Conduct shall be observed within the bail and bail enforcement industry and wherever it has been incorporated into national legislation or practice. If 16
legislation or practice contains stricter provisions than those of the present Code, those stricter provisions shall be observed.
=> The article seeks to preserve the balance between the need for discipline of bail enforcement agents and on which public safety is largely dependent on the one hand, and the need for dealing with violations of law and violations of basic human rights on the other hand. Bail enforcement agents shall report all violations, or attempted violations, to appropriate authorities and take other lawful action only when no other remedies are available or effective.
=> The term 'appropriate authorities' refers to any authority existing under law, whether to a law enforcement agency or independent thereof, with statutory, customary or other power to review grievances and complaints arising out of violations of law and within the purview of this Code of Professional Conduct.
Bail enforcement agents who comply with the provisions of this Code of Professional Conduct deserve the respect, the full support and the cooperation of citizens of the sovereign states and of all law enforcement communities throughout the United States.
NOTE: The Code of Professional Conduct for Bail Enforcement Agents was patterned after national law enforcement standards as outlined by the United ations Council and is recommended as model legislation for all states.
17
CALIFOR IA BAIL AGE TS ASSOCIATIO FUGITIVE APPREHE SIO GUIDELI ES
Reprinted with permission
Introduction
The California Bail Agents Association (CBAA), in acknowledgment of the substantial arrest powers conferred upon bail agents and sureties by California statutes (Sections 1300 and 1301 of the Penal Code) and at common law, recognize the desirability of recommended definitive, standardized criteria and guidelines for both the personal exercise of those powers and the statutorily authorized assignment of those arrest powers to third persons.
While the legislature and legal authorities have long empowered bail agents to arrest bailees, neither California statute nor administrative regulations even attempt to provide mandatory or advisory guidelines for the exercise of the broad arrest authority critical to the bail industry's effectiveness as an essential element of the criminal justice system.
Desiring to reduce the likelihood of civil liability being unnecessarily incurred during the fugitive apprehension process, the CBAA recommends the following guidelines, in principle, as appropriate standards for both the personal exercise of bail agent arrest powers and the assignment of such powers to third persons.
While uniformity of arrest procedures would be desirable, the CBAA is fully aware that each and every fugitive apprehension effort is unique, and that important arrest related decisions must frequently be made instantly and in volatile and dangerous circumstances. Therefore, each of the following guidelines may not be applicable in all situations, and are offered in an advisory fashion.
1. The bail agent and any third party apprehension agent should be familiar with these CBAA advisory guidelines, Penal Code Sections 1300-1305, and any other relevant statutes or regulations relating to the arrest and surrender powers and limitations before undertaking an apprehension effort.
2. If the arrest and surrender of a bailee who has not forfeited his bond is being done at the bond indemnitor's request, it is desirable to obtain this surrender request in writing with the increased risk, or other reason for surrender, set forth in that writing. A recommended 'surrender request1 form is attached hereto as Exhibit "A." a. This written request should also indicate the indemnitor's understanding and agreement that if this surrender effort, with or without prior forfeiture, is not successful, the indemnitor is still fully obligated under the terms of the previously executed Bail Bond Indemnity Agreement. b. This written request should indicate that the indemnitor acknowledges that any premium paid or outstanding, remains fully earned and shall not be returnable under Penal Code Section 1300 or otherwise, and should include a provision holding Bail Agent and his or her surety company harmless and fully indemnifying Bail Agent and company from any and all liabilities which may arise during the apprehension efforts.
3. Bail Agent and/or his/her arrest agent should, before initiating apprehension efforts, and 18 periodically during the course of those efforts, check court records to confirm the forfeiture remains outstanding and that the bailee has not reappeared in court since the declaration of forfeiture date.
4. Bail Agent and/or his/her arrest agent should not knowingly violate any federal, state or local law, statute, regulation or practice in the course of apprehending a fugitive/bailee.
5. If the apprehension effort involves a bailee in another state or country, the bail agent or any third party apprehension agent should exercise best efforts to determine if any statutes or regulations exist in that jurisdiction regarding fugitive arrest in, and removal from that jurisdiction, and should use best efforts given the circumstances to comply with any such provision and/or procedure.
6. To the extent possible in any given apprehension and arrest effort, care should be taken to obtain all necessary court documents, background information, applications, arrest reports, mug shots, arrest/surrender authorizations, and the like, prior to initiating the search. Absent agreement to the contrary, the bail agent should gather this information initially and deliver it to the arrest agent.
7. No member of the bailee/fugitive's family, friends, acquaintances and the like should be threatened with physical harm, nor unnecessarily subjected to rude, intimidating or threatening behavior by the bail agent or authorized apprehension agent during apprehension efforts.
8. Consideration should always be given to effectuating the arrest and subsequent surrender of the bailee/fugitive by utilizing the lowest level of force and restraint feasible in that given situation recognizing, however, (a) the primary desire to avoid any injury or damage to any property, bystanders, persons assisting in the apprehension, the bailee/fugitive and the bail agent or arrest agent, and (b) the potentially volatile nature of the task.
9. Where possible and feasible, the bail agent or his authorized agent should advise local law enforcement of his/her presence in that jurisdiction and the reasons for that presence, and should be prepared to identify him or herself and show law enforcement all appropriate forfeiture and arrest documents establishing the legal right of that person to arrest that bailee/fugitive. (a) Prior to pursuing the fugitive, the Bail Agent or Arrest agent should determine which, if any, criminal justice data systems (e.g., Cll, NCIC, PIN, etc.) have entered the bench/arrest warrant for the fugitive. If no such warrant has been issued, one should be requested of the court or District Attorney if practical. If an existing warrant is not in the system(s), consider asking your local warrant division to enter it. (b) If law enforcement assists you in the arrest of the fugitive in a different county or state, and there is a warrant outstanding in one of the systems, the police have a discretionary priority claim on the fugitive. If you (bail agent or arrest agent) ask to have the prisoner turned over to you for transport and surrender to the proper jail, it is always desirable to be truthful, polite and appreciative of the assistance given.
10. Whenever feasible and possible, if the bail agent or arrest agent is male, and the fugitive/bailee is a female, a woman associate should be with the arresting party for transport to the appropriate jail. (a) Absent unusual circumstances, all arrestees should be taken directly to jail for surrender, and the arresting party should keep in mind that the safety of that prisoner is the agent's 19 duty while that person is in the agent's custody and control. (b) If the arrestee is injured during the arrest process, the arrest agent should document when, where and how the injuries were sustained and should seek proper medical treatment under those particular circumstances, recognizing that jails generally have medically trained personnel on the premises for obviously minor injuries.
11. During all stages of the apprehension and arrest process, the bail agent or the arrest agent should recognize the privacy rights and civil rights of third party citizens who are not fugitives subject to arrest.
12. In retaining the independent contractor services of a fugitive apprehension agent/arrest agent /investigator, the bail agent should take reasonable steps to falsify him or herself that this person is sufficiently experienced and familiar with the areas at as covered by these guidelines to assure that unnecessary liabilities are not created by the arrest agent during the course of his or her fugitive apprehension efforts. (a) Any such arrest agent who presently holds a license as a bail agent, a bail solicitor or a private investigator, or who has held such a license in the preceding five (5) years, shall be per se presumed to be appropriately trained and experienced to act as a fugitive apprehension agent. (b) Because independent contracting arrest agents reflect back upon the bail agency itself, it is therefore desirable to choose an arrest agent of good character and reputation, and who possesses sound judgment. (Title 10 of the California Code of Regulations prohibits a bail licensee from associating with any "... persons of bad general or bad business reputation, or criminals . . .")
13. All apprehension related expenses to be paid by the bailee or bond indemnitor should be reasonable, necessary and documented. Since the bond indemnitor contractually obligated to reimburse the agent for costs and fees, appropriate business records should be maintained regarding costs and fees incurred and time expended. (a) The bailee and bond indemnitor should be noticed in writing by mail immediately upon the bail agent's receipt of notice of forfeiture from the court. (b) When the apprehension effort is concluded, an itemized demand for payment should promptly be sent to the indemnitor. The set hourly fee or percentage paid to an arrest agent should always be set with reference to industry standards for such services.
14. When the 180-day arrest period has expired, or when the bail agent learns the subject bailee is back in custody, any arrest agent working the case should be promptly notified of this fact and advised to cease action. (a) If the arrest agent is directly responsible for the location of the errant bailee, and either personally arrests or directly causes the timely arrest, that arrest agent should generally be deemed to have fully performed; the bail agent (or counsel) should make any necessary court motions and pay any cost assessment unless otherwise agreed. (b) Disputes with arrest agents over payment entitlement should be avoided by establishing clear terms and conditions regarding compensation; the CBAA suggested "Arrest Agent Fee Agreement" should be utilized whenever possible. (c) The bail agent should take care to avoid assessing unwarranted, unnecessary, Undocumented or unearned fees or costs against the indemnitor, and should therefore carefully review all statements for payment submitted by the arrest agent.
15. No bail agent or arrest agent shall ever, under any circumstance, mislead or provide false information to any court or law enforcement officer in the course of an apprehension effort. 20
It is the hope of the CBAA that the above-stated advisory criteria guidelines are useful to you in maximizing the likelihood of bailee apprehension while minimizing avoidable liability. We urge all members of the bail industry to familiarize themselves with the above guidelines.
EXHIBIT A Agreement for Apprehension and Surrender of Bailee
Date ______Bond Number ______Bond Amount ______Bail Agency ______Forfeiture Date ______Arrest Agent ______180th Day ______Bailee ______AKA ______DOB ______Court ______Case Number ______Jail ______
This agreement is made on ______, between, a duly licensed California Bail Agent, hereinafter referred to as "Bail Agent," and ______, hereinafter referred to as "Arrest Agent," and is entered into to effectuate the timely apprehension and surrender of the Bailee named above, hereinafter referred to as "Bailee," subject to the following terms and conditions:
Arrest Agent shall take all necessary lawful steps to locate, apprehend and surrender the Above-named Bailee to the ______County Jail, pursuant to the provisions of Penal Code Sections 1300-1301, in order to facilitate Bail Agent's relief from forfeiture pursuant to Penal Code Section 1305 before the expiration of the 180th day set forth above.
(a) Arrest Agent warrants s/he has read and is familiar with Penal Code Sections 1300-1305 and the California Bail Agents Association's "Recommended Fugitive Apprehension Guidelines" and that we will conduct her/himself in accord with the guidelines and criteria regarding fugitive apprehension efforts set forth therein.
(b) Arrest Agent further warrants that s/he is experienced in the field of fugitive apprehension, and that s/he stays current with information necessary to conduct her/himself as a professional in the fugitive apprehension field. 2. Upon the apprehension and surrender of the Bailee by Arrest Agent to the above-named jail on or before the 180th day from the date of forfeiture mailing by the court, as set forth above, Bail Agent agrees to pay to Arrest Agent the sum of as compensation for Arrest Agent's independent contractor services.
(a) In the event a law enforcement agent or agency takes custody of Bailee as a direct result of the investigation and apprehension efforts of Arrest Agent, the above compensation figure shall be deemed fully earned upon verification by Bail Agent, said verification shall not be unreasonably withheld.
(b) Such direct action(s) warranting payment includes (1) the personal arrest and surrender of Bailee by Arrest Agent, and (2) locating Bailee and causing arrest by police officers in Arrest Agent's presence, based upon Arrest Agent's investigative efforts and leads.
(c) If Bailee is arrested by law enforcement or any other authorized third person without the direct assistance of Arrest Agent, not in the presence of Arrest Agent, the above-referenced independent contractor fee shall not be paid to the undersigned Arrest Agent. 21
(d) If this Bailee has forfeited additional bonds written by the Bail Agency, said forfeitures having been declared prior to execution hereof, and if these bonds can be exonerated because of Bailee's arrest and surrender hereunder, Arrest Agent shall be entitled to an independent contractor’s fee for same if the fee agreed upon is a percentage basis, unless this subparagraph is crossed out and initialed by both parties.
3. It is agreed between the parties to this agreement that in addition to the above-stated independent contractor fee to be paid upon her/his performance, Arrest Agent shall be entitled to expenses reimbursement upon full performance as follows:
______
______
______
(If no mileage, etc., provisions appear above, it shall be agreed that no expense reimbursement is intended.)
4. In the event a dispute over payment of the independent contractor's fee or expenses arises, the parties agree to binding arbitration by a panel of three arbiters who shall all be licensed Bail Agents or Private Investigators who will be selected by the vice-president of the California Bail Agent's Association as follows: one arbiter shall be selected by the CBAA Vice president from a list of three arbiters submitted by Bail Agent, one from a list of three arbiters by Arrest Agent, and the third by the CBAA Vice President. If a party fails to submit a list, the Vice President shall select it. The three selected arbiters shall meet with the Bail Agent and Arrest Agent together within 30 days of their appointment to take evidence and hear the dispute. A majority finding by the arbiters shall issue within fifteen (15) days to all parties, and shall finally resolve the dispute. The party prevailing in this arbitration proceeding shall be entitled to costs and reasonable attorney fees.
5. Arrest Agent shall not make any representation to any person or entity that s/he is an employee of Bail Agent; if asked, Arrest Agent shall properly identify her/himself as a "Fugitive Apprehension Agent" or a "Recovery Agent" independently contracted by Bail Agent to apprehend Bailee.
6. Arrest Agent shall fully indemnify and hold Bail Agent (and Bail Agent's General Agent, Employer and/or surety insurance company) harmless from any and all liabilities arising as a result of Arrest Agent's acts or omissions in the course of seeking to perform hereunder.
7. Arrest Agent agrees to cease Bailee apprehension efforts upon telephonic notice from Bail Agent, followed by a written request to cease mailed within 24 hours from telephonic notification. If efforts of Arrest Agent prior to termination clearly lead to the apprehension, arrest and surrender of Bailee, Arrest Agent shall be entitled to receive payment of the independent contractor's fee agreed above. If a dispute arises as to payment entitlement, the above arbitration provisions shall apply.
8. For the purpose of notice hereunder, the parties and their addresses are as follows:
22
Bail Agent Arrest Agent
Name Name
Agency Name DBA
Address Address
City City
State Zip State Zip
Telephone Telephone
Fax Fax
IN WITNESS WHEREOF, the undersigned do hereby agree to the above-stated terms and conditions as of the date which first appears above.
Signed (Bail Agent) Signed (Arrest Agent)
Name printed or typed Name printed or typed
REQUEST BY I DEM ITOR FOR SURRE DER OF PRI CIPAL A D SUBSEQUE T I DEM ITY AGREEME T
Defendant Court ______Bond# ______Amount ______
Court ______Charges ______
Agency ______Phone ______
Indemnitor Name ______Phone ______
Indemnitor Address ______
City ______State ______Zip ______
I, ______, the Indemnitor in the above-mentioned undertaking posted on behalf of ______, in the matter of the State of California vs. ______, hereby request that my liability as Indemnitor on this undertaking be terminated herewith, or as soon as possible, via the surrender of the principal by the Surety. Said surrender and termination of liability is desired by Indemnitor due to Indemnitor’s 23 conviction that there has been a substantial increase in risk and hazard of the undertaking.
The undersigned Indemnitor further states and agrees that the Surety herein, or any of his/her employees, agents, general agent and/or surety companies, shall be and are held harmless and fully indemnified by the undersigned Indemnitor for said surrender, and that said indemnification shall include, but not limited to, investigative fees, court costs, attorney fees, civil judgments and any return of premium that may be ordered by the court pursuant to California Penal Code or the regulations of the California Department of Insurance.
The undersigned Indemnitor further understands and agrees that his/her liability on the subject undertaking shall continue in full force and effect until the subject bond is ordered exonerated by the court, and said liability is pursuant to the terms and conditions of the standard bail agreement, signed by undersigned Indemnitor, and incorporated and made a part hereof by reference. Indemnitor agrees to fully assist said Surety in the arrest, apprehension and surrender of said principal, and agrees that should such efforts regarding surrender fail, Indemnitor remains fully liable for said undertaking.
Signed this ______day of ______at ______, California.
Indemnitor Signature ______Indemnitor Name (type or print) ______