COLUMBIA — The chain of events that led to Ricky Gurley being seated quietly in the back row at a hearing of the Supreme Court of Missouri on Nov. 9 as his lawyer presented a First Amendment case in front of seven judges has caused the Columbia private investigator some grief.
If the court finds reason to side with him by declaring a few of Missouri’s state statutes unconstitutional, almost every Missouri resident who has ever committed the misdemeanor of Googling a candidate for office or looking up an old flame on Facebook will be protected from prosecution.
By reading a newspaper, doing an online search for a person or organization, or asking his or her neighbor what they did the night before, every citizen in the state has violated the statutes at some point, Gurley's lawyer, Jay Barnes, said.
“Yet it is left to the discretion of police, prosecutors and the courts as to which violations are subject to arrest and which are not,” Barnes wrote in his appellant’s brief.
Barnes and Gurley argue that the statutes are so all-encompassing that a literal reading of them declares anyone who has ever conducted any type of research on any person or organization as having conducted “private investigator business,” which, if practiced without a license, is a class-A misdemeanor.
Christina Wells, an MU law professor, says that this type of case in not "unheard of."
In fact, tour guides in cities such as Philadelphia, New Orleans and Washington, D.C. are currently fighting a similar battle — arguing against state licensing boards, which now require them to submit to drug-screening and background checks. The guides argue that the requirements, and the statutes on which they stand, are unconstitutional and violate their freedom of speech.
Gurley — a frequent commenter on the Missourian’s website and others — and his lawyer have spent the past 19 months going after the Missouri Board of Private Investigator Examiners — a Jefferson City-based licensing and disciplinary committee. Fresh off a victory handed down by the board’s Administrative Hearing Commission in December 2010, the two went back on the offensive, attacking the groundwork on which the board stands.
But this is not a typical Supreme Court case. Gurley isn't suing for monetary damages, though he hasn't ruled that out as a possibility for the future. Ideally, he'd like an apology, though he's well aware he probably won't get one.
He wants to be told that he's right.
Gurley is also seeking a mixture of payback and prevention. He wants payback for the board that he says wrongly denied him a license to practice in April 2010, and a preventative. He doesn't want this to ever happen to him again.
He's aware that a victory for him might mean a victory for all Missouri citizens who might potentially be prosecuted for unwittingly violating the statute in question.
But he’s quick to admit that his case is not an exercise in good citizenry.
“I’m not going to sit here and try to convince you that I’m some good humanitarian,” he said the day after the hearing. “I’m just a businessman.”
Gurley’s business, RMRI Inc., is a private investigation agency that makes the bulk of its money on criminal defense cases involving suspected cyber crimes. The agency has been around since 2001, and in March 2010, Gurley applied to the newly formed Board of Private Investigator Examiners for a renewal of his license because newly enacted state statutes require everyone practicing the trade to do so. Before 2007, Columbia investigators went through the city of Columbia for licensing.
But the new board denied Gurley’s application, claiming that he had disclosed driver’s license information — in a 2009 blog post titled “All About Mike Martin” — in violation of the Driver Privacy Protection Act.
The board also claimed Gurley had failed to disclose, on his application for renewal, that he was previously refused a bail bondsman’s license.
“It would not be honest for me to say I wasn’t mad when they denied my license,” Gurley said. “Angry. Mad as hell. Even right now, that anger hasn’t totally subsided.”
Gurley appealed the board’s decision to the Administrative Hearing Commission — a "neutral, independent, administrative tribunal" that hears cases from state agencies. The commission’s summary judgment simply reads, “The Board has no cause to deny Gurley a private investigator license on grounds that he violated a criminal statute.” He was then given his license.
But that wasn’t good enough.
“Let’s say I stopped right there when I got my license back,” he said, obviously still bothered by last year’s events. “And the board says, ‘OK, Mr. Gurley, you’re good now, you’ve got your license … you’re a happy camper.'”
“Well,” he continued, “who pays me that $75,000 back that I just spent to prove that I was right?”
In addition to court costs, Gurley says his business was effectively shut down for 10 months during the appeal process, cutting him off from potential clients and an income for his employees and himself.
“So no, I’m not a happy camper,” he said. “I’m a pissed-off camper.”
An unpopular man
In 1996, Gurley was convicted of felonious restraint in North Carolina for pursuing a bounty across state lines while working as a recovery agent. He doesn’t try to hide this. But it doesn’t make him a favorite among the private investigator community, either.
“Most PI agencies don’t like me,” he said. “I’m not a very popular person to have a PI license.”
During the interview, Gurley made a habit of lowering his voice whenever someone walked past our corner of the restaurant, looking every one of them up and down before returning to the conversation.
He says this resentment in the private investigator community might have something to do with the denial of his license renewal, along with the fact that his firm might be one of the highest-charging private investigator businesses in the state.
“All three of the people on the board (Dwight McNiel, Douglas Mitchell and Francis Rey) were knowledgeable enough to know that I was in the right,” he said. “They have the knowledge, the background, to do the research. They just didn’t want to do it.”
The Board of Private Investigator Examiners — a mix of practicing investigators and citizens — was created by state legislation in 2007. With a fund in the state treasury, it replaced municipalities in the licensing and disciplinary processing of professionals.
“You’ve got three licensed private investigators (on the board) that are able to deny a license to anyone that may be competition,” Gurley said. “McNiel … had it out for me before I even walked through the door.”
Dwight McNiel and the board’s Executive Director Pamela Groose refused to comment for this story because the litigation is still ongoing. McNiel did say that he’d love to talk about Gurley, if only he could.
The Supreme Court
With the exception of one who yawned frequently, all the Supreme Court judges at the hearing on Nov. 9 took an animated interest in the proceedings. Judge William Price rocked back and forth in his leather chair, his head disappearing and reappearing behind the raised bench.
Assistant Attorney General Kevin Hall, who represented the board in the case, faced a barrage of rapid-fire questions from the judges, a few of whom openly found fault with the laws Hall was trying so hard to defend.
“It’s a strangely written statute,” Judge Laura Denvir Stith said to Hall during his allotted time for defense.
“It doesn’t seem to require you to get consideration to be in the private investigations business,” she continued, highlighting the crux of Gurley’s argument — the lack of any compensation element in the statute’s definition of a private investigator business.
Without that important caveat, anyone who looks for information can be labeled a private investigator, Gurley and his lawyer say.
Another problem with the state statute, they say, is how broadly it defines the type of information that may only be investigated by a private investigator or private investigator business.
For starters, according to the state statues, 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” is considered private investigator business.
Defense attorney Hall’s argument to the court was that the statutes must be read in their entirety, and one cannot simply pick apart one element of the provisions.
“By focusing on the definition of private investigator business in isolation,” Hall’s brief to the court reads, “Gurley ignores the overall licensing scheme created by the legislature and asks this Court to disregard the legitimate state interests in protecting the public health and welfare from fraudulent and incompetent private investigators.”
The judges continued to pepper Hall during the proceedings with hypothetical questions.
“What if I’m a stringer for a newspaper ... and I want to research people in the news?” asked one judge.
“Is there an exception for people engaged in political campaigns?” asked another.
Hall tried to answer the questions, but eventually admitted that the definition of private investigator business does not have an element of compensation in it.
But he staunchly defended the statutes as a whole, claiming that it was “unreasonable" to assume that the majority of Missouri residents think any act of inquiry to be a misdemeanor.
The validity of that assumption will be left to the seven justices, who will hand down a decision as soon as they consider the evidence.
'I don't do causes'
During interviews, Gurley made sure to repeat that he does not see himself as a hero or a champion for any causes.
"I don’t do causes,” he said.
His hope, he says, is that the next time he applies for a license — whether as a private investigator or in a similar line of work — someone will step in to say, “You can’t (wrong) him, we know what he’ll do.”
“He’s not going to stop,” he hopes they’ll say. “He’s proven it before.”
Or maybe they won’t.
“But it beats the heck out of putting your head in the sand and not doing anything about someone trying to victimize you,” he said.
“I’m not a victim here,” he said. “I fought back.”