Mo. high court upholds licensing rules for private investigators
The Missouri Supreme Court has knocked down a challenge to a state law requiring private investigators to be licensed by the state.
Ricky B. Gurley, a private investigator in the state, had argued that the statute could be interpreted to apply to individuals searching for friends on a social-networking site. The state high court rejected that argument, finding the law applies only to private investigative work done for a commercial or business purpose.
In 2007, the state passed several laws regulating private investigators. One law provided that engaging in the business of private investigations without a license is a misdemeanor. Gurley, a private investigator in Missouri since 2002, applied for a license in 2010.
The Missouri private investigative board denied Gurley’s application for a license, alleging that Gurley had violated the federal Drivers’ Privacy Protection Act. The Missouri Supreme Court opinion is silent on what the supposed violation was but notes: “No law enforcement agency had ever formally charged Gurley with violating the DPPA.”
Gurley appealed the license denial to the Administrative Hearing Commission. He also filed a lawsuit in state court in June 2010 alleging, among other claims, violations of free-speech and procedural due-process rights. Procedural due process requires that before a government body infringes on a person’s life, liberty or property interests, the government must provide that person with a fair procedure — usually notice and a hearing.
The circuit court immediately rejected several of Gurley’s claims, but reserved others — including his free-speech claim — pending a decision by the AHC.
In December 2010, the AHC reversed the investigative board and ordered that Gurley should receive his license. Later that month, the circuit court dismissed all of Gurley’s lawsuit.
Despite having his license, Gurley appealed the circuit court’s decision to the Missouri Supreme Court, where he again asserted free-speech and procedural due-process claims.
Gurley claimed that the law was overbroad and infringed on protected free speech. He conceded that the statute did not violate his free-speech rights, but the overbreadth doctrine allows litigants advancing First Amendment claims to assert the rights of others. Under existing jurisprudence, if a law is substantially overbroad a court can strike it down.
Gurley contended the law was substantially overbroad because it could apply to anyone searching for others online for a variety of purposes. He pointed to a section of the law that defined private investigator work as investigating
“the identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person.”
He noted that this part of the law lacked a commercial-purpose requirement. Technically, the language of the statute could apply to virtually anyone. He contended that the law could apply to the work of any political volunteer researching opponents, freelance reporters and authors.
However, the Missouri Supreme Court unanimously upheld the law in its March 6 opinion in Gurley v. Missouri Board of Private Investigator Examiners. The high court agreed that the section Gurley cited lacked commercial-purpose language, but noted that in two other sections of the law the word “business” was used with “private investigator.”
“Use of the word ‘business’ in both of these sections indicates that section 324.1000(9) [the specific section Gurley cited as problematic] includes within its sweep only investigations conducted by commercial entities,” the court wrote.
The court concluded that the term “private investigator business” applies “only when done as part of a commercial enterprise carried on for profit or as part of a particular occupation habitually engaged in for livelihood or gain.”
In other words, the Missouri high court interpreted the statute narrowly so as to avoid an overbreadth problem.
The state high court also rejected Gurley’s procedural due-process claim.
“I don’t really have a problem with their ruling,” Gurley told the First Amendment Center Online. “They didn’t hurt me at all or damage me in the ruling; as a matter of fact it may have actually provided some protection for every person that holds a professional license in the state of Missouri and myself.”
However, Gurley says still believes he was correct in his reading of the statutory language. “I’m not sure that the Missouri Supreme Court fully and completely considered the negative ramifications that could occur for a citizen by allowing the statute to stay as it is,” he said. “I do think the statute was drafted too broadly, but the Missouri Supreme Court ruled that there is a built-in requirement that there must be a connection that the private investigative work is being done for profit to come under the law. I understand that. It shows good logic.”
The Missouri attorney general’s office has not yet responded to a request for comment.