In My Opinion

Fred Grimm: Bail bondsmen unfettered by civil niceties

 

fgrimm@MiamiHerald.com

So you’ve just finished your workout at a very nice Miami Beach gym. You’re in the shower. The curtain is drawn. It’s a setting that comes with certain expectations.

Like, say, privacy. Like, say, no gun play. You don’t expect an armed thug decked out like a SWAT cop to pull back the curtain and stick a weapon in your face.

“I thought I saw a gun. It may have been a Taser,” said Scott Linnen. “I had soap in my face.”

It happened at about 8:15 Tuesday evening. The shower and steam room were packed, said Linnen, a Miami ad exec and a longtime member of the David Barton Gym and Spa on Collins Avenue. Suddenly, he said, five armed guys in military gear, with bulletproof vests and gold badges stormed into the crowded room. Linnen said their adrenalin was pumping. “They were amped.”

They shouted. They rousted naked men from a dozen shower stalls. They blocked the exit. They shouted that the room was on lockdown. Guns were drawn. A few gym members dropped to the floor. “It was just a melee,” Linnen said.

Two men, presumably fugitives, were extracted from the confused mess. The TAC squad dumped the pair’s bags and searched their belongings. “They kept yelling, ‘Where’s the gun?’ as if the guy was hiding a pistol under his towel,” Linnen said.

He said the “arrest” and interrogation seemed to go on for 20 or 30 minutes, while he and the other members, wrapped in their towels, were detained, kept away from their own clothes and possessions and cellphones. They were trapped, held in lockdown by men with the intimidating accouterments and the brusque, surly, threatening attitudes cultivated by a special ops strike force.

But gradually it dawned on Linnen that these guys were from no place like officialdom, despite those big gold badges. As the fugitives were hauled away, he threw on his clothes and caught up with the apparent leader of the faux TAC unit.

Linnen demanded identification. He was handed a garish business card from a bail bondsman, complete with the fellow’s nickname, which somehow made the experience all the more outrageous. “His name was Fuzzy,” Linnen said. “Some guy named Fuzzy was able to do this to me.”

“This was just some ragtag group, a bunch of paid mercenaries, all dressed up to look like federal agents, who could come into a private gym with no warrant and do whatever they want to.”

Linnen, on Friday, was still having difficulty accepting that these characters could bust into a private gym “and pull back the shower curtains and point Tasers at naked men” without breaking the law.

Nor was the management of the David Barton Gym and Spa management pleased that bail bondsmen would send their commandos into those ritzy environs on a busy evening to nab a couple of fugitives. The company issued a statement after the raid, complaining, “They simply ignored our normal security measures, including the building security guard on duty. We feel that they put our members and staff at risk needlessly.”

Actual police officers, actual government agents, actual public employees would have surely been more circumspect. Cops would have needed a warrant to raid a private club. But licensed bail bondsmen operate in a kind of legal netherworld, along with their agents (known variously as skip tracers, bail recovery agents, fugitive recovery agents and sometimes as bounty hunters, though Florida law does not allow the industry to employ that particular term).

“The Constitution doesn’t apply to them. That’s what most people don’t understand,” said Howard Finkelstein, the Broward public defender who has tangled with the bail bond industry over a number of legal issues (including bail bondsmen’s years-long campaign to get rid of the pretrial intervention programs that cut into their profit margins).

He explained that bail bondsmen — a sexist misnomer, given that 40 percent are women — operate under a peculiar theory of contract law that suggests a defendant has agreed to surrender his rights to the bail bond agent. Somehow that status gives bail bondsmen and their agents extraordinary latitude when they go out to retrieve some AWOL client. “The police could never just break down my door or come through my window without a warrant. Or storm into a gym,” Finkelstein said.

He added that the bail bond agents, along with their extra-legal powers, have a reputation for employing fellows whose résumés would not get them past a police agency’s employment office. “Many of these people, on their best days, are sketchy.”

In 2009, the New York University Review of Law and Social Change published a legal analysis of bail bond agents “who have been a part of the American criminal justice landscape since the 18th century.”

Rebecca B. Fisher wrote, “They are empowered to engage in various levels of intrusion upon privacy which the law forbids the police and private citizens from making. Since the country’s founding, courts have upheld bounty hunters’ right to pursue bail skippers across state lines, to apprehend them — even by breaking and entering the individual’s home in the middle of the night, and to transport them back to court in other states without extradition proceedings.”

Two 19th century decisions by the U.S. Supreme Court seem to have exempted bail bond agents from legal restraints faced by law enforcement. An 1872 decision held that defendants surrender their civil rights when a bondsman bails them out of jail. In 1888, after hearing a case that came out of the notorious Hatfields and McCoys feud in the Appalachian Mountains, the court decided Kentucky courts could try members of the Hatfield clan on murder charges though the defendants had been kidnapped in West Virginia by bounty hunters and hauled across the state line.

Among the world’s judicial systems, only the U.S. and the Philippines employ a legal construct in which a defendant, presumed innocent, must pay a for-profit enterprise a nonrefundable fee to get out of jail while he’s waiting trial. Four states — Illinois, Kentucky, Oregon and Wisconsin — have abolished bail bondsmen. Not, of course, Florida. “This is just a weird throwback to another era,” Finkelstein said.

Folks in South Florida’s poorer precincts are plenty familiar with the rough ways of bail bondsmen, unfettered by the civil rights niceties most of us take for granted. But on Tuesday, they imported their cowboy tactics to South Beach, to a gym with a decor described in Miami.com as a “Moroccan-Tunisian dreamscape against a backdrop of thumping club music and dim lights. There are dressing room lights, cracked mirrors, black tile mosaics and huge walnut benches. Ten roomy treatment rooms are clean and rather masculine, but not cold.”

Members in such a place can’t easily comprehend this strange legal construct that allows a squad of private gun thugs to storm their private environs, roust them naked from their showers and hold them in lockdown. “We can’t stand for this,” Linnen insisted. But an anachronism of American justice insists we must.

Read more Fred Grimm stories from the Miami Herald

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