Grady Carroll Ouzts v. Maryland National Insurance Company , 505 F.2d 547 ( 1974 )

OPINION

TRASK, Circuit Judge:

This case as a decision of a panel of the court is reported at 470 F.2d 790 (9th Cir. 1972). Following that decision, en banc proceedings were initiated resulting in a determination to rehear the case en banc. Additional briefs were filed by counsel of record and by amici curiae on the issue of state action, and the case was orally reargued.¹ We reaffirm.

The attention accorded the case thus far merits a more complete statement of the facts than heretofore given. In October, 1965, Grady Carroll Ouzts (Ouzts) was arrested in Las Vegas, Nevada, and charged with obtaining money under false pretenses. The Justice Court for the Township of Las Vegas set bail at $2,500.

On November 1, 1965, Defendant William Embry, doing business as “Bill Em-bry Bail Bonds” (Embry) had Ouzts sign an “Application and Agreement for Appearance Bond or Recognizance” (Agreement) in favor of defendant Maryland National Insurance Company (Maryland National) for which Embry was agent. The defendants, Darrow Peterson and Iola Peterson (the Peter-sons), executed the agreement as indem-nitors.

The Agreement stated that in consideration of Maryland National’s approval of the application and execution of a bail bond, during Ouzts’ release on bail “any agent of Maryland National Insurance Company shall have control and jurisdiction of him during the period for which the bond is executed and has the right to surrender the defendant at any time that they may desire as provided herein, and as provided by law.” The Petersons, as indemnitors, agreed to aid Maryland National in surrendering Ouzts to the court should the surety deem such action advisable.

Pursuant to this documentation, a bail bond in the required amount was executed by Maryland National on behalf of Ouzts, it was approved by the court, and Ouzts was released from custody. Subsequently, in violation of the terms of the bond agreement, Ouzts left the jurisdiction and was located by telephone in South Carolina. At that time he told Embry that he had no intention of returning to Nevada. Eventually, Ouzts went to Long Beach, California, where the events which culminated in this action took place. Meanwhile, Embry was successful in obtaining a continuance of the hearing on the criminal proceedings in Las Vegas. A preliminary hearing had originally been set for May 9, 1966, and was continued until January 9, 1967.

Ouzts alleged that on November 3, 1966, the Petersons came to his home and attempted to take him into custody. He resisted, the Long Beach police were called and the matter was settled when Ouzts voluntarily surrendered to the police for incarceration pending further court proceedings. On the next day Darrow Peterson applied for and obtained a fugitive warrant for the arrest of Ouzts under California Penal Code section 847.5. Bail was set by the Long Beach Municipal Court and a hearing scheduled for November 10, 1966, to determine if the court should authorize Peterson under section 847.5 to return Ouzts to Las Vegas as a fugitive from Nevada. At the hearing, the Long Beach court refused to enter such an order unless Peterson first obtained a warrant from the justice court in Las Vegas. The hearing was continued until December 12, 1966, and Ouzts was released from custody on his own recognizance.

The Petersons returned to Las Vegas and informed Embry of their lack of success. They all then went back to Long Beach and on.November 18, without warrant, court order or court approval, hired the defendant Wilfred I. Lagatella to take Ouzts into custody and deliver him to them in San Pedro, California. Lagatella was supplied with the bailbond and a written authorization to act for Maryland National. On November 18, 1966, Lagatella and an assistant forcibly took Ouzts into custody at his residence in Long Beach and delivered him to Embry and the Petersons in San Pedro. They then transported him to Las Vegas, Nevada, where Ouzts was delivered to the custody of the police. The Las Vegas charges against Ouzts were subsequently dismissed.

Ouzts alleges that his arrest by Maryland National was accomplished by force and violence and that Lagatella and his assistant claimed they were special police officers of Los Angeles County and displayed badges of authority. These contentions were denied by the defendants. It is clear, however, that neither was in fact an officer, special officer or clothed with authority by any official governmental entity.

This action for damages by Ouzts thereafter came before the District Court on an amended complaint basing jurisdiction upon the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C.- § 1343(3). A second state law claim seeking damages for unlawful extradition was joined under the theory of pendent jurisdiction. The District Court granted a motion for summary judgment in favor of the defendants upon the ground that it lacked subject matter jurisdiction. It seems clear, however, that the reason underlying the ruling was that no federal cause of action was established. The court also dismissed the pendent state law claim. A panel of this court unanimously affirmed upon the ground that the appellant had not established a cause of action under federal law.

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendants were acting under color of state law and (2) that their conduct subjected him or caused him to be subjected to a deprivation of some right, privilege or immunity secured by the Constitution of the United States.² We recognize at the outset that the “state action” requirement of the fourteenth amendment and the “under color of state law” requirement of section 1983 have been construed by the Supreme Court to be substantially the same. United States v. Price, 383 U.S. 787, 794 n.7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). It is also a truism by now that there is no rigid formula for measuring state action for purposes of section 1983 liability. Rather, it is a process of “sifting facts and weighing circumstances” which must lead us to a correct determination. Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), quoting Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

Here it is necessary to determine whether the conduct of the appellees in forcibly seizing Ouzts and removing him to Nevada constituted action under the color of state law. We note that purely private conduct, no matter how wrongful, is not within the protective orbit of section 1983. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). For such conduct the wrongdoer faces potential liability in state courts, but a federal action would not lie under section 1983. In addition, the protection of the fourteenth amendment may not be invoked unless the state has been involved in the deprivation of rights to some significant extent. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Reitman v. Mulkey, supra, 387 U.S. at 378, 380, 87 S.Ct. 1627.

We begin this analysis with an examination of the nature and source of the bail bondsman’s status and authority. The institution of bail itself goes back to the days of pre-Norman England. Note, Bail: An Ancient Practice Re-examined, 70 Yale L.J. 966 (1961). Under the early common law, the bondsman not only undertook the risk of loss of his ■ own property if his principal did not appear, but in some instances, the bondsman was made to suffer the punishment which would have been inflicted upon the prisoner. 2 Pollock & Maitland, The History of English Law 589, 590 (2d ed. 1899). As a result of this responsibility, the common law recognized a bondsman’s right to recapture and surrender his principal to authorities without resort to any legal process.

The common law conception of bail was adopted by most American jurisdictions early in the history of the United States. The Constitution itself contains a reference to bail in the eighth amendment, and early American case law also acknowledged the bondsman’s common law authority. In Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371, 21 L.Ed. 287 (1872), for example, the recapture right was recognized:

“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.” (footnote omitted).

See also Carlson v. Landon, 342 U.S. 524, 547, 72 S.Ct. 525, 96 L.Ed. 547 (1952); United States v. Goodwin, 440 F.2d 1152, 1156 (3d Cir. 1971); Fitzpatrick v. Williams, 46 F.2d 40 (5th Cir. 1931); Ex parte Salinger, 288 F. 752, 755 (2d Cir. 1923); In re Von Der Ahe, 85 F. 959 (W.D.Pa.1898).

In Fitzpatrick v. Williams, supra, the Fifth Circuit further amplified the nature of the bondsman’s authority:

“The right of the surety to recapture his principal is not a matter of criminal procedure, but arises from the private undertaking implied in the furnishing of the bond. In re Von Der Ahe (C.C.) 85 F. 959. It is not a right of the state but of the surety. If the state desires to reclaim a fugitive from its justice, in another jurisdiction, it must proceed by way of extradition in default of a voluntary return. It cannot invoke the right of a surety to seize and surrender his principal, for this is a private and not a ■governmental remedy. It is equally true that the surety, if he has the right, is not required to resort to legal process to detain his principal for the purpose of making surrender. There is no conflict between the two rights. Extradition can only be exercised by a government at the request of a government. Surrender by bail can be exercised only by the individual, who is bail. The remedies are separate and distinct.” Id. 46 F.2d at 40-41.

Thus, we note that the common law right of the bondsman to apprehend his principal arises out of a contract between the parties and does not have its genesis in statute or legislative fiat. Because it is a contract right it is transitory and may be exercised wherever the defendant may be found.

All of this is not to say, however, that the state may not enter the field and regulate the business and practices of bail bondsmen. California has done precisely that. The appellant directs our attention to two specific statutes dealing with the bondsman’s authority to apprehend his principal. These are California Penal Code sections 847.5 and 1301 (West 1970). Both statutes provide the basis for the appellant’s claim that the appellees were acting “under color of state law” when they forcibly apprehended him.

Section 1301 was originally enacted in 1872 and was modified slightly over the years until the present version of the statute was adopted in 1965.³ The statute codifies the bondsman’s common law right to arrest his principal in order to surrender him to authorities and to empower any other suitable person to accomplish the arrest. Section 1301, however, requires that any person making such an arrest must deliver the defendant within 48 hours to the appropriate court magistrate, sheriff or police. Failure to comply with this requirement constitutes a crime.

Originally, in accordance with the common law, California made no distinction between California bondsmen and foreign bondsmen, i. e., those who provided bail in another jurisdiction and were simply seeking their principals in California. Both were legally entitled to apprehend their principals pursuant to the terms of section 1301. In 1961, however, California Penal Code section 847.5 was enacted.⁴ This section totally abrogates the foreign bondsman’s common law right to pursue, apprehend and remove his principal from California without resort to process. Instead, section 847.5 interjects a mandatory series of court proceedings into the arrest and removal of a fugitive from bail from another jurisdiction. The foreign bondsman must first appear before a magistrate and submit an affidavit of facts in support of his request for an arrest warrant. Only after a finding of probable cause is made will the warrant issue. Any arrest made by the bondsman thereafter is upon the authority of the magistrate’s warrant, and not the bondsman’s common law recapture right. Following the arrest, section 847.5 requires an additional evidentiary hearing before the magistrate with the fugitive present. Only then can the bondsman be legally authorized to remove his principal from California. Finally, section 847.5 explicitly states that any arrest of a fugitive not made pursuant to such a court order constitutes a crime.

It is apparent that in the instant case the appellees did not even purport to comply with the California statute. They attempted to seize Ouzts upon the authority of their private contract of bail. When he resisted, the police were summoned. At this point the magistrate intervened and attempted to follow the mandate of section 847.5 by ordering a hearing. At the hearing, however, the magistrate refused to issue the necessary order unless the appellees first produced an arrest warrant from Las Vegas. The hearing was accordingly continued. It was during this interim and in complete violation of the California statute that Ouzts was forcibly taken to Nevada by the appellees. Their action was clearly not under the color of California law. In no way did California law authorize, permit, encourage or tolerate the conduct of the appellees. Indeed, section 847.5 expressly condemned and criminalized such conduct. The ap-pellees’ action can thus only be described as private conduct attempting the enforcement of a private contract in total defiance of existing state law.

The situation here is therefore clearly distinguishable from the numerous cases cited by the appellant and amici where state action was found within the context of section 1983 and the fourteenth amendment. E. g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627 (1967); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). Although the nature of state action found in each of these cases differs with the facts of the case, they all share a common thread. In each, the Supreme Court found that there was some state involvement which directly or indirectly promoted the challenged conduct. Similarly, where the Court could find no affirmative causal link between state legislation or policy and the challenged conduct, it declined to find the state action necessary to invoke the fourteenth amendment. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-177, 92 S.Ct. 1965 (1972). It is evident that the facts involved in the instant appeal present an even stronger case against the finding of state action than those involved in Moose Lodge, supra. For not only does California law not “foster” the type of misconduct which resulted, but rather, the applicable statute expressly prohibits and makes criminal the appel-lees’ action.

The appellant attempts to argue, however, that the appellees merely “exceeded” the authority otherwise granted the bondsman under California law. In this manner the appellant hopes to bring himself within the ambit of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), and related cases involving action in excess of authority.^{5 6}In each of these cases, however, the offenders were either actual state officials, as in Screws, Classic and Griffin, or they were jointly engaged in activity with actual state officials as in Price and Guest. Such was not the situation in the instant case. The District Court found that “neither the defendants nor their agents held any vestige of authority from any state or any political subdivision thereof.” Quite clearly, there was no authority for the appellees to “exceed” here, since California law never clothed them with any authority initially. Rather, with the enaction of section 847.5, California completely terminated the foreign bondsman’s common law recapture right.

Relatedly, appellant calls attention to the fact that Lagatella and his companion allegedly represented themselves to be “special officers of Los An-geles County.” ⁵ The appellant implies that this representation imbued the ap-pellees’ action with the “color of state law.” Even assuming that Lagatella made the false representation (a matter which was controverted), we do not perceive how Lagatella’s statement alone would support a finding of state action. In Warren v. Cummings, 303 F.Supp. 803 (D.Colo.1969), the court rejected precisely this argument saying:

“Plaintiff’s contention that defendant Robertson acted under the color of state law is grounded, in part, upon Robertson’s identification of himself as some sort of law enforcement officer, even though Robertson was not, in fact, any type of officer. This basis is clearly insufficient. The Civil Rights Act requires some vesting of authority by the state, and defendant’s self-proclaimed authority will not suffice.” Id. at 804.

We note only one other contention made by the appellant. At oral argument the suggestion was made that the bondsman was acting as an unofficial agent or partner of the Nevada court when it sought to bring Ouzts to justice. It is therefore claimed that as “an arm of the court,” the appellees became clothed with some of the court’s official authority. No precedent is offered to support this strange thesis. Legally, we note that the court has its own official arms for securing the presence of a fugitive defendant. Moreover, the system of extradition which is available to the state is completely “separate and distinct” from the private reclamation interests and procedures of the bondsman. Fitzpatrick v. Williams, supra. Practically, we also know that the bail bondsman is in the business in order to make money and is not acting out of a high-minded sense of devotion to the administration of justice. We believe that the bondsman here was acting accordingly. As observed in People v. Houle, 13 Cal.App.3d 892, 895, 91 Cal. Rptr. 874 (1970), the bondsman was acting “to protect his own private financial interest and not to vindicate the interest of the state.”

We find no state action here to support a claim under 42 U.S.C. § 1983 and again affirm the judgment of the trial court.⁷

1 . The court expresses its appreciation for counsel who so graciously filed briefs as amici and participated in reargument. They are: Michael B. Weisz, Legal Aid Society of San Diego; Richard A. Weisz, Legal Aid Foundation of Long Beach; and Stefan M. Rosenzweig and Henry S. Hewitt of the Legal Aid Society of Alameda County, all on belialf of the Plaintiff-Appellant, Grady Carroll Ouzts.

George R. Richter, Jr., William M. Burke, and David J. Reber, of Sheppard, Mullin, Richter, & Hampton; on behalf of Defendants-Appellees; Jeffrey Isaacs and Richard B. Munks of Proeopio, Cory, Hargreaves & Savitch for Southern California First National Bank in support of Appellees; and Noble K. Gregory, John A. Sutro, Jr., Michael II. Salinsky and Bernard Zimmerman of Pillsbury, Madison & Sutro on behalf of The Bank of California, National Association, in support of Appellees.

2 . 42 U.S.C. § 1983 provides as follows :

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

3 . California Penal Code section 1301 provides as follows:

Ҥ 1301. Arrest by bail or depositor for purpose of surrender

For the purpose of surrendering the defendant, the bail or any person who has deposited money or bonds to secure the release of the defendant, at any time before such bail or other person is finally discharged, and at any place within the state, may himself arrest defendant, or by written authority indorsed on a certified copy of the undertaking or a certified copy of the certificate of deposit, may empower any person of suitable age to do so.

“Any bail or other person who so arrests a defendant in this state shall, without unnecessary delay, and, in any event, within 48 hours of the arrest, deliver the defendant to the court or magistrate before whom the defendant is required to appear or to the custody of the sheriff or police for confinement in the appropriate jail in the county or city in which defendant is required to appear. Any bail or other person who arrests a defendant outside this state shall, without unnecessary delay after the time defendant is brought into this state, and, in any event, within 48 hours after defendant is brought into this state, deliver the defendant to the custody of the court or magistrate before whom the defendant is required to appear or to the custody of the sheriff or police for confinement in the appropriate jail in the county or city in which defendant is required to appear.

“Any bail or other person who willfully fails to deliver a defendant to the court, magistrate, sheriff, or police as required by this section is guilty of a misdemeanor.

“The provisions of this section relating to the time of delivery of a defendant are for his benefit and, with the consent of the bail, may be waived by him. To be valid, such waiver shall be in writing, signed by the defendant, and delivered to such bail or other person within 48 hours after the defendant’s arrest or entry into this state, as the case may be. The defendant, at any time and in the same manner, may revoke said waiver. Whereupon, he shall be delivered as provided herein without unnecessary delay and, in any event within 48 hours from the time of such revocation.

“If any 48-liour period specified in this section terminates on a Saturday, Sunday, or holiday, delivery of a defendant by a bail or other person to the court or magistrate or to the custody of the sheriff or police may, without violating this section, take place before noon on the next day following which is not a Saturday, Sunday, or holiday.”

4 . California Penal Code section 847.5 provides as follows:

Ҥ 847.5 Fugitive admitted to bail in another state ; affidavit; hearing ; warrant for arrest; order for return; procedure for custody and return.

If a person has been admitted to bail in another state, escapes bail, and is present in this State, the bail bondsman or other jierson who is bail for such fugitive, may file with a magistrate in the county where the fugitive is present an affidavit stating the name and whereabouts of the fugitive, the offense with which the alleged fugitive was charged or of which he was convicted, the time and place of same, and the particulars in which the fugitive has violated the terms of his bail, and may request the issuance of a warrant for arrest of the fugitive, and the issuance, after hearing, of an order authorizing the affiant to return the fugitive to the jurisdiction from which he escaped bail. The magistrate may require such additional evidence under oath as he deems necessary to decide the issue. If he concludes that there is probable cause for believing that the person alleged to be a fugitive is such, he may issue a warrant for his arrest. The magistrate shall notify the district attorney of such action and shall direct him to investigate the case and determine the facts of the matter. When the fugitive is brought before him pursuant to the warrant, the magistrate shall set a time and place for hearing, and shall advise the fugitive of his right to counsel and to produce evidence at the hearing. He may admit the fugitive to bail pending the hearing. The district attorney shall appear at the hearing. If, after hearing, the magistrate is satisfied from the evidence that the person is a fugitive he may issue an order authorizing affiant to return the fugitive to the jurisdiction from which lie escaped bail.

“A bondsman or other person who is bail for a fugitive admitted to bail in another state who takes the fugitive into custody, except pursuant to an order issued under this section, is guilty of a misdemeanor.”

5 . E. g. United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); United States v. Price, 383 U.S. 787, 86 S.Ct. 1152 (1966); Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964); and Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951).

6 . Lagatella filed an affidavit in which he denied that any such representation was made. In addition, he stated in his affidavit that neither he nor his companion were public officers of any kind. This latter statement was not controverted.

Although the court made no finding on the question of the disputed representation, the three findings made upon actual authority are as follows:

“2. That the plaintiff has failed to allege that the defendants or their agents were in fact endowed with authority to act in behalf of any state or political subdivision thereof.

“3. That neither the defendants nor their agents were emjjowered by any state or political subdivision thereof.

“4. That neither the defendants nor their agents held any vestige of authority from any state or any political subdivision thereof.”

7 . The appellant focused the attention of the court on section 1983 exclusively. No explicit reference was made to the applicability of section 1985 either in the pleadings below or in argument to this court on appeal. We therefore decline to consider that issue now. Roberson v. United States, 382 F.2d 714, 718 (9th Cir. 1967).