Re: Some Legal Research That May Rile Up Bail Recovery Agents
- Got some more notes on that....
Actually, according to the attorney I was speaking with T v. T is NOT "Obiter Dicta", just the one "popular paragraph" is...
The one paragraph being:
"When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into 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."
The rest of the case did set a precedent allowing for Bail Bondsman to cross state lines to apprehend their fugitives without having to go through the extradition process and take certain reasonable measure to protect their investment (an investment of money into a reliance that a person will show up for court). I take it that the case law is binding, but the paragraph in question is not, and is just not as useful as a lot of Bail Agents believe or have believed it is.
According to the attorney, you can't go breaking and entering into a person's house these days even if you are a Bail Bondsman. You can't be holding a person in custody any longer than what is reasonably necessary to turn the person back over to the court returnable (jail that they were bonded out of). And in most states, you can't just go get the "skip" for any reason or no reason at all. All of these things can get you charged criminally or sued in civil court. The conversation lasted well over two hours, and I bought dinner since I was getting an education. Quote from the attorney, from reading notes:
"1872 was a completely different time than 2011. What was legally acceptable in that era is not legally acceptable now. You can't shoot a man for stealing your horse now, and nor would he be put to death for doing it. And you can't break and enter into someone's home without being charged with breaking and entering if a Law Enforcement Officer catches you doing it, if you are lucky enough to be alive so you can be charged with it. Holding a person against their will is in fact kidnapping or felonious restraint even if you are a Bail Bondsman holding a bondee against their will, especially if you are holding them for any time at all for non-payment of a bond, without making an effort to get them to the court returnable. And if you think you can bond a person out of jail for let's say $5,000.00 and then put them back in the next day for no reason and keep their money, well then just do it; but please ask that person to give me a call after you get them back in jail, because I can get their money back and more. Our society is much more civil these days, and the rule of law is what matters in a court of law, not dramatic speech by a Judge made to illustrate a point in a ruling from over 125 years ago. There is a difference in using speech that is clearly "Obiter Dicta" to try to persuade a Judge with, and the Judge having to follow the rule of law that derives from clearly established case law. Since I sat on the bench as a Judge for 8 years and then went back into private practice; I think that I have a good idea of what the rule of law is, and what it is not. And I can tell you this, you don't want to be the attorney coming into court reciting dicta from case law to a Judge when he or she has a Prosecutor and a few Law Enforcement Officers expecting them to follow the rule of law. This is why Bail Recovery Agents get fined, are placed on probation, and go to jail for relying on that one paragraph as a defense to doing things that they should not be doing while chasing a Bail Bondsman's fugitives, every day. Yes, many have gotten one over on the Judge with this case law; but they did not get one over on a Judge that actually knew the law, and that is alright too because there are many of sitting Judges that were piss poor attorneys before becoming a Judge and are an even piss poorer Judge now. Rick, I know three Judge's right now that don't know as much about the law as you do; and that is not a compliment".
Of course I did ask some questions throughout that paragraph, I just condensed it to his answers. The attorney was also a Judge here in Boone County for 8 years, about 15 to 20 years ago.
I mentioned your name specifically in this post and was hoping you did reply Sue, because I don't know of anyone else on this group that has confronted these issues in the Bail Bonds community before; probably because most of them chose to be P.I.'s and not Bail Recovery Agents.
I tend to believe he makes good sense, and he is a personal friend that I don't believe would ever intentionally steer me wrong. I just wish I would have know him about 15 years ago.......
Ricky B. Gurley.
--- In email@example.com, suesarkis@... wrote:
> Rick -
> I'm not sure why you wanted to get my name on the subject line but so be
> it. I have always known that the paragraph you quoted was dicta. However,
> I do disagree with your attorney friend to an extent.
> I have used T v T in excess of 3,000 times through the years in both
> federal and state courts. Not once has any judge not agreed with it. However,
> I always fell back on the very last sentence of the Supreme court decision
> in that no law should be written which would oppress a bondsman's ability
> to seek relief.
> Although I fully realize it is NOT "stare decisis" the fact still remains
> that dicta is considered as authoritative as the level of the rung of the
> ladder of authority the speaker/writer sits on. T v T was a unanimous
> Supreme Court decision and you cannot get any higher than that. To this very
> day Congress has not once made federal law to address this power. Therefore,
> as far as I am concerned and have stated in many state courts, the states
> can shove their laws up their butts.
> I've stated to this forum in the past about an incident in KY many years
> ago and about the wonderful judge and Lou Ball, the prosecutor, etc. They
> had a law, probably still do, on their books which plainly stated that no
> bondsman from another state may enter KY with the intent of removing bail
> jumpers wanted in other states. Well, I spent the night at the PJ's house and
> the Fort Thomas P.D. housed both my prisoners after they helped me arrest
> the idiots under direct court order. In the morning it was the PJ himself
> who drove me to the Cincinnati airport with the 2 prisoners.
> Take, for instance, 847.5 PC. Evelle Younger told the state legislators
> it was unenforceable. The federal courts basically told California to shove
> that code up their butts in Ouzts v. Maryland. Yet, to this very day,
> there the code sits as big as life.
> Yes, Rick, T v T is "obiter dicta". However, as Black's law dictionary
> says, "dicta tend to have a strong persuasive effect, either by being in an
> authoritative decision, stated by an authoritative judge, or both."
> Have a great week everyone.
> I was talking to an attorney the other day that has won several appeals in
> Missouri on Bail Bonding issues. And he may have just taught me something
> that would answer an age old question for me. And it might be "bad news" for
> those that like to quote Taylor vs. Taintor in the Bail Bonds Industry. I
> thought of Sue Sarkis when I learned about this, and I tried to get her
> name in the subject line, but there was not enough room.
> First, I should give a brief and cursory introduction to what Taylor vs.
> Taintor is. It is an old case law from 1872 which has been very popular to
> quote from for most Bail Recovery Agents because it seems to give Bail
> Recovery Agents pretty broad and sweeping powers in apprehending their bail
> fugitives. Specifically, it is this one paragraph that is quoted quite often:
> "When bail is given, the principal is regarded as delivered to the custody
> of his sureties. Their dominion is a continuance of the original
> imprisonment. Whenever they choose to do so, they may seize him and deliver him up
> in their discharge; and if that cannot be done at once, they may imprison
> him until it can be done. They may exercise their rights in person or by
> agent. They may pursue him into 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."
> Here is a link to the entire ruling:
> _http://supreme.justia.com/us/83/366/case.html_ (http://supreme.justia.com/us/83/366/case.html)
> Many people, including myself have forever believed that this gives the
> Recovery Agent the latitude to more effectively locate and apprehend bail
> fugitives. When you couple that language that you read in the paragraph above
> with the fact that this language was used by a Judge sitting on the bench
> in the U.S. Supreme Court it would seem that the Bail Recovery Agent does in
> fact have some pretty powerful case law backing him or her up.
> Yet, many Bail Recovery Agents have found their selves having some minor
> to severe legal problems despite what this paragraph from this case law may
> indicate; myself included.
> And now I may have an answer I have sought for a long time.... The
> attorney that took the time to discuss this with me is known as a "legal wiz" in
> the Bail Bonds Community here in Missouri. And I think he may have taught me
> a thing or two, including a new Latin term.....
> Here is what he said to me almost verbatim; I actually asked the attorney
> if I could go out to my car and get my notepad and pen to take notes with:
> "Ricky, that one popular paragraph that is so often quoted from Taylor vs.
> Taintor carries no legal weight whatsoever. That paragraph, alone and by
> itself sets no precedent, has no use whatsoever in the defense of a Recovery
> Agent in the courtroom, and is just simply some useless words from a
> Judge. Here is a new term for you Ricky; "Obiter Dictum". It means that certain
> illustrations and analogies used by a Judge while ruling on a case are just
> words in passing, they give no meaning to the case itself other than a way
> for the Judge to try to illustrate a point. The paragraph we are
> discussing here that everyone likes to quote is classified as "Obiter Dictum", it is
> not legally binding in any way, it won't even give a Judge pause in
> considering how to rule on a case. And I know many of attorneys that have used
> this paragraph in court defending Bail Recovery Agents that have been charged
> with various crimes while out trying to apprehend a fugitive for a Bail
> Bondsman, and some even successfully; but a smart Judge that understands the
> law as he or she should would not be swayed by that one paragraph. I also
> don't know of any attorney that has ever been called incompetent for using
> that paragraph in a client's defense, but if that is all an attorney has to
> defend his or her client with then he or she is in fact incompetent if they
> go to trial with it".
> Well the attorney knew I was not arguing with him, I was learning from
> him. So, he was very careful to explain all of this to me and patient with me
> for taking careful notes.
> So, I came home and started researching all of this on my own, and sure
> enough I found this in Wikipedia:
> "Taylor v. Taintor, 83 U.S. 366 (1872), was a United States Supreme Court
> case that is commonly referred to as having decided a person (such as a
> bail bondsman) into whose custody a person accused of a crime is remanded as
> part of the accused's bail has sweeping rights to recover that person.
> However, this is erroneous since the commonly cited portion of the case was
> obiter dicta; thus having no binding precedential value (although dicta does
> have persuasive value)."
> Reference Link: _http://en.wikipedia.org/wiki/Taylor_v._Taintor_
> And now I think that I may understand why that one paragraph from Taylor
> vs. Taintor is not quite as useful as almost every Bail Recovery Agent in
> the world seems to believe it is.
> Ricky B. Gurley.
> RMRI, Inc.
> _http://www.rmriinc.com_ (http://www.rmriinc.com)
> Sincerely yours,
> Sue Sarkis
> Sarkis Detective Agency
> (est. 1976)
> PI 6564
> _www.sarkispi.com_ (http://www.sarkispi.com/)
> 1346 Ethel Street
> Glendale, CA 91207-1826
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