Post bail and skip out on court in North Carolina and chances are that someone other than a law enforcement officer will come looking for you. Bail bondsmen in this state have expansive powers to recapture their principals. Bondsmen may use reasonable force to apprehend a principal—even before a bond is forfeited. See State v. Mathis, 349 N.C. 503 (1998). They may lawfully break and enter a principal’s residence to take custody of a person for whom they serve as a surety. Id. This includes the authority to overcome the resistance of a third party who impedes their efforts to apprehend a principal. Id. at 514. Nevertheless, the power of bondsmen, while broad, is limited in scope. Bondsmen may not forcibly enter into the home of a third party to recapture a principal unless the person with whom they contracted lives in the home. Id. And while bondsmen may apprehend suspects in a manner that approximates an arrest, they are not law enforcement officers and are not imbued with all of the powers accorded officers of the State. Id. Thus, bondsmen may not, for example, carry guns on school property, even in the process of chasing an armed and fleeing principal. State v. Haskins, 160 N.C. App. 349, 356 (2003).
The court of appeals in State v. McGee, ___ N.C. App. ___ (June 3, 2014), recognized another limitation on a surety’s right to apprehend a principal: Bail bondsmen are not exempt from the speed limitations in Chapter 20 when seeking to apprehend a principal.
Facts. Michael McGee, a bail bondsman, called 911 on the morning of August 31, 2010 to inform law enforcement officers that he was chasing a principal, George Mays, who had failed to appear in court. McGee requested assistance from law enforcement officers in apprehending Mays. McGee’s fiancée, Anecia Neal, was riding with McGee in the front passenger seat of his car while he pursued Mays. McGee drove at a high rate of speed – between 80 and 100 miles per hour—down a two-lane road with a 45 mile per hour speed limit. Mays passed another car in a no passing zone. McGee attempted the same maneuver, but lost control of his vehicle and went down an embankment. Neal died from injuries she sustained in the accident. McGee was indicted for involuntary manslaughter and misdemeanor death by vehicle.
Issues. The trial court instructed the jury that ““[b]ail bondsmen can make an arrest; however they may not violate the motor vehicle laws of North Carolina to do so.” (Slip op. at 4.) McGee objected to the instruction. He argued on appeal that bail bondsmen may violate the state’s motor vehicle laws when apprehending a principal; that the reasonableness of the means used by a bail bondsmen is a question of fact for the jury; and that the trial court lessened the State’s burden of proof by so instructing the jury.
Analysis. The court of appeals rejected those arguments. First, the court noted that the legislature enacted speed restrictions “‘for the protection of persons and property and in the interest of public safety, and the preservation of human life.’” (Slip op. at 6.) While G.S. 20-145 expressly exempts police vehicles from speed limitations when driven in pursuit of a suspect and with due regard for safety, no statutory provision similarly exempts bail bondsmen from such limitations when pursuing a principal. The court determined that, like any other citizen, bail bondsmen must follow the state’s motor vehicle laws—even when pursuing a principal who has failed to appear in court. The authority to use reasonable means to capture a principal does not create an exemption from the speed limit laws. The court further noted that a bondsman’s power to take a principal into custody arises from the contractual relationship between the principal and the surety. (Slip op. at 8-9). Bond agreements provide that the surety posts the bail and, in return, the principal agrees that the surety can recapture him or her at any time. Mathis, 349 N.C. at 509. By entering this contract, the principal voluntarily consents to the custody of the surety and, under common law, implicitly agrees that the surety or the surety’s agent may break and enter his home and use reasonable force to apprehend him. The principal may not, however, contract away the rights of third parties. Thus, the McGee court reasoned, just as a bail bondsman cannot enter the home of a third party (that is not the principal’s residence) without the third party’s consent, bondsmen pursuing principals on the state’s roadways cannot engage in conduct that endangers the lives and property of third parties. Third parties have the right to expect that others using public roads, including bail bondsmen, will follow the laws in Chapter 20.
Thus, the court concluded that the trial court’s instruction was proper. It clarified that a bondsman’s right to arrest a principal does not include the right to violate the state’s motor vehicle laws – a correct statement of the law. The instruction did not invade the province of the jury, which was left to determine whether the defendant violated G.S. 20-141(a) by driving at a greater speed than was reasonable and prudent given the circumstances.
