Posted 3/25/2016

In Jones v. Davis, et al., 2016 WL 1090629 (E.D.Mo. March 21, 2016), a prisoner who was allegedly injured during his capture by policy officers and bounty hunters brought a civil rights claim under 42 USC § 1983 against various parties, including the bail bond company and bounty hunters.  The court dismissed the claim.  One of the reasons was that the prisoner did not allege that the bounty hunters or bail bond company were acting under the color of state law. 

In Collins v. Clarke, Case No. 14-7082 (4th Cir. March 22, 2016) a North Carolina bail bondsman appealed the dismissal of a habeas corpus petition.  The bondsman was convicted of attempted abduction and use of a firearm in the commission of a felony.  The bondsman was not licensed in Virginia when he attempted to seize an individual in Virginia he believed was an absconding bond principal.  His convictions were affirmed by the Virginia courts, see 702 S.E.2d 267 (Va.App. 2010) and 720 S.E.2d 530 (Va. 2010).  The District Court found that various arguments in support of the petition had been considered and rejected by the Virginia courts or had not been raised by the bondsman at the appropriate stage of the proceedings.  The Court of Appeals considered the bondsman’s claims of ineffective assistance of counsel.  The bail bondsman argued that his counsel was ineffective in failing to preserve for appeal the issue of whether the retroactive application of Virginia bail licensing statutes abrogated his common law rights as a bail bondsman and therefore denied him due process.  The Court of Appeals held that the failure to raise this claim did not prejudice him, as the Virginia Supreme Court’s decision on this issue was reasonable.  The bondsman had little chance of success on appeal, even if the issue were preserved.  The Court of Appeals held that the statutes that abrogated the common law right as a bondsman were enacted three years before his conduct, were unambiguous and provided fair notice.  The bondsman also argued that his counsel failed to preserve the issue of whether he had the required specific intent in the abduction.  Again, the Court of Appeals held that even if counsel was deficient, the failure to preserve the issue did not cause prejudice.  The Court of Appeals affirmed the dismissal of the habeas corpus petition.

In Commonwealth v. Seals, Case Nos. 1563 MDA 2014 and 2113 MDA 2014 (Pa.Super. March 18, 2016), the defendant for whom the surety furnished a bond failed to appear.  The defendant was apprehended under a bench warrant.  The surety was present at the bench warrant hearing but did not have an opportunity to speak.  The bond was forfeited and the surety filed a motion for exoneration and credit of surety, which the trial court denied.  The Superior Court reversed the trial court’s orders denying exoneration of the surety.  The court held that a hearing is required on a surety’s request for remission of a forfeited bond.  In this case, “there is no indication on the record that the trial court conducted a hearing on the motions to exonerate surety.”  The court remanded the matter for a hearing on the cost incurred by the Commonwealth in apprehending the defendant and the amount of remission that is warranted. 

In State v. Thomas, Case No. 2015-KA-0830 (La.App. March 16, 2016), the defendant was arrested on various drug charges (proceeding 1) and the surety posted bail bonds to secure his release.  Around the same time, the defendant failed to appear for arraignment in connection with another matter (proceeding 2).  The trial court granted the motion to forfeit the bonds (also issued by the surety) in connection with proceeding 2 and issued an alias capias.  Subsequently, the defendant was arrested and remanded with a new increased bail order.  The defendant was released upon the posting new surety bonds (not issued by the surety) in relation to proceeding 2.  Due to the defendant’s remand, the surety presented Statements of Surrender, verifying that the defendant was surrendered and releasing the surety from its obligations under the bonds issued in connection with proceeding 1 and proceeding 2.  (Mistakenly, the defendant was released by the sheriff’s office prior to the execution of the Statements of Surrender.)  The defendant then failed to appear for arrangement in connection with proceeding 1 and the court forfeited the bonds.  In its motion to set aside the forfeiture, the surety asserted that it was released pursuant to the Statements of Surrender.  The State argued that the Statements of Surrender were void because they were mistakenly executed after the defendant was released from custody.  The trial court held that despite the possibility of a mistake, it was not sufficient to invalidate the Statement of Surrender.  The trial court granted the surety’s motion to set aside the forfeiture.  The Court of Appeals affirmed the holding of the trial court. 

In People v. International Fidelity Insurance Co., Case No. E062079 (Cal.App. March 16, 2016), the surety moved to vacate a forfeiture and set aside summary judgment on a bail bond.  While the defendant was released on $105,000 bond and was present in court awaiting his arraignment, he was served with a motion to increase the bond to $400,000 and to place a hold on his release.  The defendant left the courtroom and did not return for his arraignment.  The court declared the bond forfeited and after the surety was not able to locate the defendant during the appearance period, the court entered summary judgment on the bond.  On appeal of its denial of the motion to vacate a forfeiture and set aside the summary judgment, the surety argued that its risk under the bond was increased because the surety did not receive advance notice of the motion to increase the amount of the bond and to place a hold on the defendant’s release.  The court rejected the argument and affirmed the denial of the motion to vacate the forfeiture and set aside summary judgment.  The Court of Appeal acknowledged California case law under which a surety is exonerated if the government materially increases the risk to the surety.  However, it declined to extend “this implied covenant to include an advance notice provision” in the bond.  The court simply examined the language of the bond and noted that it did not require the government to provide advance notice of a motion to increase bail.  [Not Published]

State v. Daniel, 2016 WL 968457 (N.C.App. March 15, 2016) reversed an order to set aside a bail forfeiture because the surety had actual notice of the defendant’s second failure to appear pursuant to N.C. Gen. Stat. 15A-544.5(f).  In this case, the defendant failed to appear and the defendant was released on $5,000 bond.  The defendant failed to appear a second time and an order for her arrest was issued.  The October 2014 order stated that the defendant failed to appear two times.  The defendant’s release was secured by a second bond at $20,000.  The defendant failed to appear a third time and the court ordered the bond forfeited.  Subsequent to the forfeiture, the defendant was served with an order of arrest.  In its motion to set aside the forfeiture, the surety argued that under N.C. Gen. Stat 15A-544.5(b)(4), a forfeiture shall be set aside when the defendant is served with an order for arrest.  The trial court set aside the forfeiture.  However, the Court of Appeals noted the exception in subsection (f) prohibits the forfeiture to be set aside if the surety had actual notice of a second failure to appear.  The October 2014 order provided such actual notice.  The Court of Appeals noted that there was no competent evidence to establish that the surety agent actually had not seen the October 2014 order. 

In Beth’s Bail Bonds, Inc. v. State, 2016 Ark. App. 171 (Ark. App. March 16, 2016), the Court of Appeals affirmed a bond forfeiture judgment.  The defendant failed to appear at a report/status hearing.  The order to appear was mailed to the defendant but was returned marked “return to sender”.  The trial court entered an order to show cause why the bond should not be forfeited.  At the show cause hearing, the trial court ordered the bond forfeited.  The surety argued before the Court of Appeals that that the trial court should reverse the bond forfeiture judgment because the order to appear was returned undelivered.  The Court of Appeals held that this argument was not preserved for appeal because it was never raised at the trial level.  The surety also argued that there had been a prior failure to appear by the defendant and the surety was ordered to show cause, but for some unexplained reason the show cause hearing was never held.  The surety argued that the forfeiture judgment should be reversed because the state failed to pursue the original forfeiture.  The Court of Appeals stated that the argument had no supporting authority and forfeiture was based on the second failure to appear.