03 March 2009

No Civil Rights Liability For Bounty Hunters

The U.S. Court of Appeals for the 10th Circuit has unanimously held in a 3-0 decision on a question of first impression in the 10th Circuit (which includes Colorado) that bounty hunters are not "state actors" and hence do not have liability for violations of civil rights.

I'm not terribly surprised by the result in this case arising out of Oklahoma. Existing precedents hold that repo men are not state actors, and that a civil lawsuit or non-judicial self-help remedy to enforce private rights (e.g. in a foreclosure or eviction) also does not constitute state action. Similarly, courts have held that private prison operators are not entitled to sovereign immunity.

Still, it was not a foregone conclusion. Temporary law enforcement employees, even if paid on a contract basis, typically are state actors and that would be another fair way to characterize a bounty hunter's status. Bounty hunters are generally only authorized to apprehend and transport people who were previously arrested by law enforcement and released on bond pending criminal charges to arrest a fugitive from justice, so their work is more intimately connected to other state actors like law enforcement officials, than is your typical repo man, who can repossess your car in the absence of any court involvement for the exclusive benefit of a private bank. For example, the bond the bounty hunter receives is set by a government official, while the fee of a repo man is agreed upon between the bank and the repo man.

Previous 10th Circuit case law had held that "in some cases a search by a private citizen may be transformed into a governmental search implicating the Fourth Amendment if the government coerces, dominates or directs the actions of a private person conducting the search or seizure.” United States v. Smythe, 84 F.3d 1240, 1242(10th Cir. 1996). But, a bumbling private citizen acting as a Nancy Drew without government direction or involvement is not held to the constitutional standards of police officers and other state actors. For example, the 10th Circuit noted that in a prior federal appellate court case (citations and internal quotations omitted):

{A] bus station manager searched a box he feared contained dangerous materials after he called the police and the responding officer advised him that he could legally open the box. This did not constitute a government search. Noting that the police in no way instigated, orchestrated or encouraged the search, we held that if a government agent is involved merely as a witness, the requisite government action implicating Fourth Amendment concerns is absent.

The 10th Circuit found the symbiotic relationship between law enforcement and bounty hunters, the heavy state regulation of the industry, and the arrest powers afforded to bounty hunters unpersuasive.

The flip side of not being a state actor is the bounty hunters receive only the governmental immunity that the legislature chooses to provide to them. They do not benefit from pure sovereign immunity. In practice, bounty hunters actually do have considerable immunity from suit under state law, at least from the people they are empowered to bring in, but a legislative reaction to one high profile case could change that result in any given state. Bounty hunting has the potential to be a high profile partisan political issues that divides states in the same way that slavery, abortion and gun rights do. Indeed, the Fugitive Slave Law, which was one of the tension points that gave rise to the U.S. Civil War concerned the interstate authority of bounty hunters in a situation with important civil rights implications.

In the case decided, the 10th Circuit held that bounty hunters who later testify as witnesses in a criminal case arising from new facts discovered while making a bounty hunter seizure of a fugitive are not bound by the 4th Amendment's protections against warrantless searches and seizures.

In the narrow case of bounty hunters apprehending fugitives who have been previously arrested and released on bail, the parade of horribles isn't too horrible. While the bounty hunters themselves didn't have a warrant for the arrest of the person they seized, such a warrant issues as a matter of course when someone jumps bail and becomes a fugitive for justice. If the bounty hunters in this situation had been law enforcement agents, they would have been acting on the basis of a court issued arrest warrant, and would have been entitled to rely upon the "plain view" doctrine to seize and testify regarding evidence of new criminal offenses observed during the course of the arrest. The conditions that go with a release on bond pending trial may even have waived (or could be designed to waive) some of the formal elements of a fugitive's Miranda rights, by providing a pre-emptive advisement of rights.

But, the worry is that the reasoning of this case could be extended beyond its narrow scope to allow bounty hunters or other independent contractors hired by government agencies to do work that would be state action subject to the U.S. Constitution if done by employees to do what the employees could not do. For example, if the C.I.A. puts out a bounty on a suspected terrorist, and a bounty hunter seizes and interrogates that person with torture in the U.S., is everyone involved immune to suits for violations of the United States Constitution? What if it was not the C.I.A., but the routine practice of police departments across the county, to impose bounties for people suspected of crimes before any arrest had taken place and before any arrest warrant had been issued? Arresting suspects while the arresting officers are actively looking for the suspects turns out to be a surprisingly small share of police department activity anyway, and is often conducted by members of a separate department of the police force (often detectives or SWAT teams). Police departments, in principle, could return to the stereotypical Old West system of wanted posters and bounties, outsourcing that part of their work, probably on a cost effective basis, at the expense of the rights of criminal defendants.

It isn't obvious that any different reasoning would apply in these kinds of cases, if the relationship was sufficiently hands off. Nothing in the U.S. Constitution requires that the government make illegal conduct by private actors that would be illegal if undertaken by a government employee (although some state constitutions do have a generalized constitutional right to sue private parties for damages). Indeed, if a state passed a law legalizing extra-judicial "honor killings," the law would probably not be unconstitutional, even though it would probably violate U.S. human rights treaty obligations (although not necessary judicially enforceable treaty obligations). But, this kind of lawless vigilante justice, which Americans were re-introduced to by military contractors in Afghanistan and Iraq (indeed unreliable bounty hunters are at the core of much of the dispute over the detainees at Guantanamo Bay, Cuba), is not something that would be good for our Republic.

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