       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RON APPLEGATE, an individual together )
with his marital community,             )        No. 74739-8-1
                                        )
                    Appellant,          )        DIVISION ONE                               ".4
                                                                                                          .77)
                                        )                                             rTr           rri
              v.                        )
                                        )
LUCKY BAIL BONDS, INC.; GREG D.         )                                                          tar3 rr
PETERSON and his marital community;     )                                                                r-
CESAR LUNA, and his marital community; )         PUBLISHED OPINION                   (P
                                                                                     cri          --4
RILEY WIRTS, and his marital community; )                                            „a-          c•••
                                                                                                  2: •C
JOHN WIRTS, and his marital community; )         FILED: December 19, 2016
and QUEST RECOVERY; JOHN DOE and )
his marital community,                  )
                                        )
                    Respondents.        )
                                        )

       BECKER, J. —We hold that instructions based on the Restatement

(Second) of Torts §§ 205 and 206 (1965) correctly state the scope of a bail

bondsman's privilege of entry onto land and dwellings.

       The appeal arises from a civil case brought by appellant Ron Applegate

against respondent Lucky Bail Bonds Inc. and its agents. Lucky posted bail for

Applegate's daughter, Elizabeth. Elizabeth failed to appear for court dates.

Lucky's agents went to Applegate's rural property at night in search of Elizabeth.

They found her in Applegate's residence, but only after getting into a shoving

match with Applegate and allegedly entering the residence without permission.

Applegate filed suit alleging assault, trespass, and other causes of action.
No. 74739-8-1/2

       The preliminary facts are not in dispute. Elizabeth was arrested for

shoplifting and misdemeanor assault. In August 2011, Dorothy Applegate—

Elizabeth's mother and Ron's wife—signed a bail bond indemnity agreement

with Lucky to get Elizabeth released from custody. The agreement listed

separate addresses for Dorothy and Elizabeth. Elizabeth missed two court

dates in September 2011. Lucky was notified of Elizabeth's failure to appear.

Lucky would have to forfeit the $4,000 bond amount if Elizabeth was not

surrendered to the public authorities within 60 days. Elizabeth was not at the

address given for her residence. Dorothy told Lucky's owner she did not know

where Elizabeth was.

      Lucky hired Greg Peterson, Cesar Luna, and John Wirts as bail bond

recovery agents to locate, apprehend, and surrender Elizabeth to law

enforcement officials. On the evening of October 27, 2011, Luna received a tip

that Elizabeth was at that moment staying in a trailer near the Applegate

residence. Luna called Peterson and Wirts. The agents met on a street near

the Applegate property around 10:30 p.m. They saw some trailers on the side

of the driveway and made a plan to start looking for Elizabeth there. As they

approached, Applegate came out of his house onto the porch and began to yell

at them to get off his property. Wirts came toward him. As he reached the

porch stairs, a scuffle began. Applegate kicked Wirts. Wirts put his hands on

Applegate. Luna came to the aid of Wirts. They struggled with Applegate and

pinned him to the ground. In the fracas, they crashed through the doorway and




                                        2
No. 74739-8-1/3


into the house. Applegate sustained broken ribs, and the doorway was

damaged.

       Elizabeth, it turned out, was inside the house. She came forward and

submitted. The agents took her into custody, handcuffed her, and departed.

       Applegate's civil cause of action went to a jury trial in superior court. The

jury rendered a defense verdict.

                            BONDSMAN'S PRIVILEGE

       The jury reached its verdict under instructions defining the circumstances

under which a bail bondsman has a privilege to enter land and dwellings to

recapture a fugitive. Applegate assigns error to those instructions and seeks a

new trial. He contends that under Washington law, bondsmen do not have a

privilege to enter the private dwelling of a third party.

       A claim that jury instructions misstated the law is reviewed de novo.

Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P.3d

289 (2012).

       The challenged instructions define the privilege of an actor who seeks to

take into custody "a person for whose appearance in court security has been

given by the actor." Instruction 39. Various terms are used to refer to the actor,

including "bail bondsman," "bail," and "bail recovery agent." The bondee—

Elizabeth, in this case—is typically referred to as "the principal."

       Instruction 39 limited the privilege to enter "land in the possession of

another" to situations when the bondsman reasonably believes the principal to

be there:



                                          3
No. 74739-8-1/4

              The following privilege carries with it the privilege to enter
        land in the possession of another for the purpose of exercising the
        particular privilege, if the person sought is on the land or the actor
        reasonably believes him to be there:
              the privilege to take into custody a person for whose
              appearance in court security has been given by the actor.

Instruction 39.

       Instruction 41 limited the privilege to use force to enter any dwelling to

situations when the principal is inside, or is reasonably believed to be inside,

and generally "only after explanation and demand for admittance":

                The privilege to enter land carries with it the privilege to use
       force to enter a dwelling if the person sought to be taken into
       custody is in the dwelling. Such force may be used only after
       explanation and demand for admittance, unless the actor
       reasonably believes such demand to be impractical or useless.
                 Although the person sought is not in the dwelling, the actor
       is privileged to use force if he reasonably believes him to be there,
       and enters in the exercise of a privilege
                to take into custody a person for whose appearance in court
                security has been given by the actor.

Instruction 41.

       The challenged instructions are based on the Restatement (Second) of

Torts, chapter 8, "Privileged Entries on Land," in the division entitled "Intentional

Harms to Persons, Land, and Chattels."

       Instruction 39 is based on Restatement (Second) of Torts § 205, titled

"Entry to Recapture or to Prevent Crime and in Related Situations."' Instruction




       'The following privileges carry with them the privilege to enter land
       in the possession of another for the purpose of exercising the
       particular privilege, if the person sought is on the land or the actor
       reasonably believes him to be there: the privilege
               (a) to recapture a person previously arrested in criminal or
       civil proceedings or a convicted prisoner, or
                                          4
No. 74739-8-1/5

41 is based on Restatement (Second) of Torts § 206, titled "Forcible Entry of

Dwelling to Arrest, Recapture, Prevent Crime, and Related Situations."2

       In rejecting Applegate's argument that the privilege of forcible entry is

limited to the principal's own dwelling, the trial court looked first to Washington's

regulatory statute, chapter 18.185 RCW, "Bail Bond Agents." The statute

defines a bail bond recovery agent as "a person who is under contract with a

bail bond agent to receive compensation. . . for locating, apprehending, and



               (b) to take into custody under a warrant, valid or fair on its
       face, one who has been adjudged a lunatic, or
               (c) to recapture a person who having been adjudged a
       lunatic has been taken into custody, or
               (d) to take into custody a person for whose appearance in
       court security has been given by the actor, or
               (e) to prevent one from committing a serious crime or to
       detain a dangerous lunatic.
       2 (1) The privileges to enter land stated in §§ 204 and 205 carry
       with them the privilege to use force to enter a dwelling if the person
       sought to be taken into custody is in the dwelling. Such force may
       be used only after explanation and demand for admittance, unless
       the actor reasonably believes such demand to be impractical or .
       useless.
       (2) Although the person sought is not in the dwelling, the actor is
       privileged to use force as stated in subsection (1) if he reasonably
       believes him to be there, and enters in the exercise of a privilege
               (a) to make a criminal arrest under a warrant valid or fair on
       its face, or
               (b) to make a criminal arrest under an order of a court acting
       within its jurisdiction, or
               (c) to effect a recapture on fresh pursuit of one who has
       been lawfully arrested on civil or criminal proceedings or who is a
       convicted prisoner, or
               (d) to take into custody under a warrant valid or fair on its
       face, or to recapture on fresh pursuit, one who has been adjudged
       a lunatic, or
               (e) to take into custody a person for whose appearance in
       court security has been given by the actor, or
               (f) to prevent one from committing a serious crime or to
       control a dangerous lunatic.
                                          5
No. 74739-8-1/6

surrendering a fugitive criminal defendant for whom a bail bond has been

posted." RCW 18.185.010(10). The statute requires recovery agents to be

trained, tested, and licensed. See RCW 18.185.250, .260, .280.

       A bail bond recovery agent on a recapture mission must carry a copy of

the contract pertaining to the individual fugitive and, if requested, must present

the copy to "the fugitive criminal defendant, the owner or manager of the

property in which the agent entered in order to locate or apprehend the fugitive,

other residents, if any, of the residence in which the agent entered in order to

locate or apprehend the fugitive, and to the local law enforcement agency or

officer."3 RCW 18.185.270(1). This language appears to contemplate, though it



        3 Wirts told Applegate that he had a "warrant" for Elizabeth. This was not
true. He had a copy of the bail contract. A bail contract is not a warrant.
Applegate asked the court to so instruct the jury. He claimed the intruders were
unable to produce a warrant when he asked to see it and he reacted
combatively because he believed they were intruders pretending to be police
officers. "Had they come on and said we have a bail enforcement contract,
none of this would have happened."
        The court declined to give the requested instruction, concerned that it
would be a comment on the evidence, and instead gave instruction 30, using the
statutory language defining the obligation to produce the bail contract on
request. The court did, however, state that the distinction between a warrant
and a bail recovery contract was important, and the "imprecise language" was
confusing and potentially misleading. Counsel for the defendants called the
distinction "splitting of hairs." Counsel defended the use of the term "warrant" as
"industry standard" and harmless even if deceptive because "the effect is the
same."
       We highlight the controversy involving the use of the term "warrant," but
we do not resolve it as it has not been briefed as an issue on appeal. We note
that the statutory definition of unprofessional conduct includes "making any
statement that would reasonably cause another person to believe that the bail
bond recovery agent is a sworn peace officer." RCW 18.185.110(10). The trial
court informed the jury of this definition in instruction 23.
       Under the common law, claiming to have a warrant may bear on the
issue of whether the bondsman improperly identified himself. Livingston v.
Browder, 51 Ala. App. 366, 367, 371, 285 So.2d 923 (1973). Some cases
                                         6
No. 74739-8-1/7

does not specifically authorize, a bondsman's encounters with third parties on

their property and in their dwellings.

       Recovery agents are required to notify law enforcement before making a

planned forced entry. RCW 18.185.300.4 In this case, neither party contends

that a forced entry was planned, so that section of the statute is not applicable.

Recovery agents are required to notify the director within 10 business days of a

forced entry, "whether planned or unplanned." RCW 18.185.090(4). While this

phrase implies that the legislature envisioned unplanned forced entries, the

statute does not specifically set forth the powers of an agent who conducts an

unplanned forced entry.

       A contract entered into between a bail bond agent and a bail bond

recovery agent under the chapter "is authority for the person to perform the

functions of a bail bond recovery agent as specifically authorized by the contract

and in accordance with applicable law." RCW 18.185.280(3). Because the

statute does not address privilege, the trial court correctly turned to the common

law for guidance as to the "applicable law." The statute defers to the common

law "as recognized in and derived from" the leading American case of Taylor v.

Taintor, 83 U.S. (16 Wall.) 366,21 L. Ed. 287 (1872):




indicate that a bondsman who purports to act pursuant to the authority of a
warrant is in danger of being viewed as a state actor for purposes of 42 U.S.C.
section 1983. See e.g., U.S. v. Trunko, 189 F. Supp. 559 (E.D. Ark. 1960);
Maynard v. Kear, 474 F. Supp. 794 (N.D. Ohio 1979).
       4 A law enforcement officer who assists or is in attendance during a
planned forced entry is immune from civil action for damages arising out of
actions taken by the bondsman. RCW 18.85.300(3). There is no grant of
immunity for bondsmen.
                                         7
No. 74739-8-1/8


       The legislature does not intend, and nothing in this chapter shall be
       construed to restrict or limit in any way the powers of bail bond
       agents as recognized in and derived from the United States
       supreme court case of Taylor v. Taintor, 16 Wall. 366 (1872).

RCW 18.185.260(4).

        In Taylor, the principal—one McGuire—was bailed out of custody on a

charge of grand larceny in Connecticut. He went to his home in New York and

was there arrested and extradited to Maine, where he was wanted for burglary.

Maine tried and convicted McGuire for burglary and sentenced him to 15 years.

This made it impossible for him to appear as required in Connecticut. McGuire's

sureties attempted to have performance on the bond excused due to grounds of

the impossibility of bringing McGuire back from Maine. The Connecticut courts

refused to excuse performance, and the Supreme Court affirmed, holding that

the sureties should have never allowed McGuire to leave Connecticut and their

liability was due to their own neglect. Taylor, 83 U.S. (16 Wall.) at 373. The

Court recognized the broad power of a bail bondsman to seize the principal

without process at any time for the purpose of delivering him for his appearance

in court:

                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 a new process. None is needed.
       It is likened to the rearrest by the sheriff of an escaping prisoner.
       In 6 Modern it is said: "The bail have their principal on a string, and
       may pull the string whenever they please, and render him in their
       discharge."

                                         8
No. 74739-8-1/9



Taylor, 83 U.S. (16 Wall.) at 371-72 (footnotes omitted).

       The power of a bail bondsman to seize the fugitive as set forth in Taylor

explicitly includes the privilege to "if necessary. . . break and enter his house."

Taking Taylor literally, Applegate contends that the bondsman's common law

privilege of forcible entry extends only to the principal's own residence ("his

house").

       Taylor did not involve an encounter between bondsmen and third parties

so the reference to "his house" is not dispositive. The privilege recognized by

Taylor's common law antecedents is not limited by the ownership and privacy

rights of third parties. Instead, it is limited by the obligation of the bondsman to

act reasonably. The law "considers the principal as a prisoner" over whom bail

may exercise its controlling power "at all times and in all places." Nicolls v.

Ingersoll, 7 Johns. 145, 156 (N.Y. 1810) (emphasis added), cited with approval

in Taylor, 83 U.S. (16 Wall.) at 371 n.10. A "reasonable demand of entrance

and a refusal" must precede a forcible entry, and "undue and unnecessary

force" may not be used. Nicolls, 7 Johns. at 148-49.

       Nicolls relies on the British case of Sheers v. Brooks (1792) 126 Eng.

Rep. 463; 2 H. BI. 120 (C.P.), a case cited by the Reporter's Notes to section

205 of the Restatement. In Sheers, the principal Nicholas Kempson was taken

from another person's dwelling after a forced entry. That person sued for

trespass. The defendants pleaded the principle of Semayne's Case (1603) 77

Eng. Rep. 194; 5 Co. Rep. 91 a (K.B.): "The house of any one is not a castle or

privilege but for himself, and shall not extend to protect any person who flies to

                                          9
No. 74739-8-1/10


his house." Sheers, 126 Eng. Rep. at 464 (quoting Semavne's Case, 77 Eng.

Rep. at 198). The court began with the premise that the third party's dwelling

had become Kempson's dwelling by virtue of his presence there. "The house of

the Plaintiff was considered, in this case, to be the house of the principal."

Sheers, at 126 Eng. Rep. at 463 n.(a)1. The court ruled through Lord

Loughborough that the defendants' plea was good: "When a party is bailed, the

bail have a right to go into the house of the principal, as much as he has himself;

they have a right to be constantly with him, and to enter when they please, to

take him. And I see no difference between a house of which he is solely

possessed, and a house in which he resides by the consent of another."

Sheers, at 126 Eng. Rep. at 464 (emphasis added). Judge Gould concurred: "It

seems to me the same in effect, as if the principal had been sole occupier of the

house; the Plaintiff received him into her house, subject to all the legal

consequences, to which he would have been liable, if the house had been his."

Sheers, at 126 Eng. Rep. at 464 (Gould, J., concurring). NicolIs and Sheers

show that the common law allows a bondsman to recapture the fugitive from

another person's dwelling so long as the stated limitations are heeded.

       Instruction 39 stated the limitation that when third parties are in

possession of the land, the bondsman must not enter without a reasonable

belief the person sought will be found there. Instruction 41 stated the limitation

that when third parties are inside a dwelling, the bondsman must first explain

and demand admittance and even then must not enter forcibly without a

reasonable belief the person sought is inside. These instructions, based on the



                                         10
No. 74739-8-1/11


Restatement, reflect the common law stated in NicolIs and Sheers and implicitly

recognized in Taylor.

       One modern case cited by Applegate supports his position that under

Taylor, there are no circumstances under which a bondsman is privileged to

force entry into a third party's residence. State v. Tapia, 468 N.W.2d 342, 344

(Minn. Ct. App. 1991) ("The authority given to the bondsman to effectuate a

principal's arrest does not extend to the forcible entry of a third party's

residence.") Tapia's unqualified holding is atypical. Mishler v. State, 660

N.E.2d 343, 346-47 (Ind. Ct. App. 1996) takes the same position but not

unequivocally. While purporting to follow Tapia, the Mishler court suggests that

an instruction on the privilege might be required if the bondsmen had actually

seen the principal inside the third party's dwelling. Mishler, 660 N.E.2d at 347.

       The issue sometimes arises in a bondsman's appeal from a criminal

conviction for trespass or assault when the conviction is affirmed not by denying

the privilege but instead by finding the bondsman's conduct was so egregious

as to exceed the privilege. The only reported Washington case dealing with the

use of force by a bondsman is in this category. See State v. Portnoy, 43 Wn.

App. 455, 718 P.2d 805, review denied, 106 Wn.2d 1013 (1986). The

bondsman, Portnoy, broke into the house of the principal. Not finding him there,

Portnoy threatened two other occupants with a pistol. Charged and convicted of

assault, Portnoy argued on appeal that the court should have instructed the jury

that a bail bondsman has "a broader justification for the use of force than do

other private citizens." Portnoy, 43 Wn. App. at 465-66. This court recognized



                                         11
No. 74739-8-1/12


that a bondsman has "certain extraordinary powers under the common law, as

the result of his contract with his client." Portnoy, 43 Wn. App. at 466.

Nevertheless, we held the requested instruction was properly refused. "Portnoy

offers no authority for the proposition that the bondsman may sweep from his

path all third parties who he thinks are blocking his search for his client, without

liability to the criminal law." Portnoy, 43 Wn. App. at 466. Portnoy stands for

the proposition that a bondsman's privilege to use force is limited, not that it

does not exist.

       To similar effect is another case cited by Applegate, State v. Lopez, 105

N.M. 538, 734 P.2d 778 (1986), cert. denied, 479 U.S. 1092 (1987), cert.

quashed, 105 N.M. 521, 734 P.2d 761 (1987), and rey'd on other grounds sub.

nom., Lopez v. McCotter, 875 F.2d 273 (10th Cir. 1989). In Lopez, the

bondsmen came from Texas to New Mexico to arrest the principal at the home

of his parents, who refused to surrender him. Armed with guns, the bondsmen

broke the door down, pointed a rifle at the father, and disarmed and threatened

two deputies who responded to the mother's call for assistance. Lopez, 734

P.2d at 781. The bondsmen were convicted of serious crimes. One issue on

appeal was the trial court's refusal to instruct on the common law privilege.

Affirming, the court held that the common law arrest authority of bondsmen is

qualified by the procedures of New Mexico's extradition statute. The court held

the instructions offered by the defense were properly refused because they

omitted that statutory limitation. Lopez, 734 P.2d at 782. The court also held




                                         12
No. 74739-8-1/13

that the evidence was sufficient to support the convictions. Lopez, 734 P.2d at

784.

       We do not read Lopez as a precedent for categorically rejecting any

common law privilege to enter a third party dwelling. The analysis in Lopez

turns on the bondsmen's defiance of extradition procedures. According to the

ruling in the same case on habeas, the Lopez court gave short shrift to the

common law privilege as a result of giving the extradition statute an

unprecedented interpretation that the defendant could not have anticipated.

McCotter, 875 F.2d at 277. The Lopez court allied itself with a decision from

Oregon that disavows Taylor. Lopez, 734 P.3d at 784, citing State v. Epps, 36

Or. App. 519, 526, 585 P.2d 425 (1978). Our statute, by contrast, directs us to

follow Taylor.

       Other cases recognize more directly that bail bondsmen have a limited

common law privilege to enter third party dwellings, depending on the facts of

the case. See, e.g., Livingston v. Browder, 51 Ala. App. 366, 285 So. 2d 923

(1973); Mease v. State, 165 Ga. App. 746, 302 S.E.2d 429 (1983); State v.

Mathis, 349 N.C. 503, 509 S.E.2d 155 (1998).

       In Livingston, the court held that the bondsman had authority to enter the

residence of the principal's mother over her objection. Because the trial court

incorrectly instructed the jury that entry without consent was a trespass, a new

trial was necessary. Livingston, 285 So. 2d at 927. In Mease, the evidence

showed that the bondsmen's entry into the home of the principal's mother was

not for an unlawful purpose, and therefore the trial court should have directed a



                                        13
No. 74739-8-1/14


verdict in their favor on the charge of criminal trespass. Mease, 302 S.E.2d at

431. In Mathis, the court held the privilege is applicable when a third party's

residence has for all practical purposes become the principal's residence.

Mathis, 349 N.C. at 513, citing Sheers, 126 Eng. Rep. at 464. The evidence

showed the bondsmen had a reasonable belief the principal was residing with

his mother and she was interfering with their right to recapture him. Because

the trial court refused to instruct the jury on the common law privilege, the

bondsmen were entitled to a new trial. Mathis, 349 N.C. at 516. These three

cases collectively demonstrate it is error not to give an appropriate instruction on

the bondsman's common law privilege when there are facts to support it.

       Applegate does not challenge the sufficiency of the evidence to support a

defense verdict under the challenged instructions. Contrary to his argument, the

instructions did not allow the jury to condone lawless behavior by rogue bounty

hunters. If the jurors had believed the agents unreasonably attacked Applegate

or broke into his home without reason to believe Elizabeth was there, the

instructions required them to find that the agents exceeded the privilege and

were acting unlawfully.

        We conclude instructions 39 and 41 did not misstate the law.

                            STATUTORY TRESPASS

      Applegate sued for trespass under RCW 4.24.630. The trial court

instructed the jury that Applegate had to prove the defendants did not have a

privilege to be on the property. The court rejected Applegate's proposed

instruction, which did not place on him that burden of proof.



                                        14
No. 74739-8-1/15


       Contrary to Applegate's argument, a defendant's lack of privilege is an

element of a statutory trespass claim that the plaintiff must prove. In relevant

part, the statute states: "Every person who goes onto the land of another and . . .

wrongfully injures personal property or improvements to real estate on the land,

is liable. . . . For purposes of this section, a person acts 'wrongfully' if the person

intentionally and unreasonably commits the act or acts while knowing, or having

reason to know, that he or she lacks authorization to so act." RCW 4.24.630

(emphasis added).

       Under the statute, the plaintiff must prove wrongful injury to property. An

injury that is wrongful can be committed only by a person who "lacks

authorization" so to act. If the respondents had a privilege to enter Applegate's

property, they did not "lack authorization" under the statute. To prove that the

respondents lacked authorization, Applegate had to prove that their conduct was

unprivileged. The instruction on trespass did not misstate the law.

       Affirmed.




WE CONCUR:




                                         15
