holding that California’s version of the UCEA “abrogates the foreign bondsman’s common law right to pursue, apprehend and remove his [or her] principal from California without resort to process” and “interjects a mandatory series of court proceedings” which a foreign bondsman must follow to obtain a warrant to arrest and remove a fugitive from bail from another jurisdiction
How later courts described this case
- holding that California’s version of the UCEA “abrogates the foreign bondsman’s common law right to pursue, apprehend and remove his [or her] principal from California without resort to process” and “interjects a mandatory series of court proceedings” which a foreign bondsman must follow to obtain a warrant to arrest and remove a fugitive from bail from another jurisdiction
- recognizing that “the bail bondsman is in the business in order to make money and . . . [is] acting ‘to protect his own private financial interest and not to vindicate the interest of the state.’”
- refusing to find that bail bondsman acts as unofficial agent, partner or arm of the State court in bringing fugitives to justice, where state courts have their own official arms for capturing fugitives and bondsman’s private reclamation interests and procedures are completely separate from those of the state
- holding that Nevada bondsmen were not state actors, where the bondsmen unilaterally seized principal in California and returned principal to Nevada
Written by the judges who cited it.
The opinion
MERRILL, Circuit Judge
(dissenting) :
I cannot agree with Judge Hufstedler that the defendants acted under color of California law or that California has vested or purported to vest them with state power. They were Nevada bondsmen and had no authority in California save to secure California assistance upon complying with prescribed procedures— a course they failed to follow.
*562 However, I agree with Judge Hufstedler that as private bondsmen they performed a public function in accepting custody of a released prisoner and guaranteeing the prisoner’s return. Professional bondsmen who assume custody of persons released on bail are providing the state with significant assistance in assuring that the manner in which it discharges its responsibilities to those it accuses of crimes, see generally Schilb v.Kuebel, 404 U.S. 357, 365 , 92 S.Ct. 479 , 30 L.Ed.2d 502 (1971); United States ex rel. Keating v. Bensinger, 322 F.Supp. 784 (N.D.Ill.1971), meets constitutional standards. The history of state reliance on private action to assure the return of an accused and the extent to which states have grown to rely on this manner of implementing a system of bail place the bondsman in a position where he “discharges a function or performs a service that would otherwise in all likelihood be performed by the State.” Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 175 , 92 S.Ct. 1965, 1972 (1972). The close link between that service and the state’s obligations to those enmeshed in its criminal process is sufficient, in my view, to impart color of state law to a bondsman’s actions in seeking to secure the presence of an accused. 1 The action taken by the defendants in California, then, was, in my judgment, taken under color of Nevada law; and to the extent that civil rights, not waived by agreement between Ouzts and the bondsmen, were violated, a federal claim is stated.
Accordingly I join Judge Hufstedler in dissent.
. The majority would hold that this action was private and taken only pursuant to agreement, and that state action would be present in a situation such as this only by the issuance of a bench warrant and the taking into custody of the released person pursuant to the warrant, But I believe it oan more accurately be said that the issuance of a warrant is but the second step in a process, taken only if the first step — the attempt of bondsmen to satisfy the state’s demand for production of an accused previously released to the bondsmen’s authority —is unproductive.