Private Detective Fact Sheet for Law Enforcement Officers

Private Detectives in Kansas report occasional difficulties when contacted by law enforcement officers during field operations. The principal source of these difficulties appears to be suspicion of the authenticity of the official Private Detective Identification issued by the Attorney General to each licensee. Lack of familiarity with the provisions of the Kansas Private Detective Licensing Act and related legal requirements also seem to play a part. This fact sheet is intended to improve these contacts by clarifying certain issues. It has been prepared by the Kansas Association of Private Investigators to improve field contacts and limit the sometimes adversarial transaction that results.

Kansas Private Detective Licensing. Private Detectives are licensed by the Office of the Attorney General through the Kansas Bureau of Investigation under the provisions of the Kansas Private Detective Licensing Act (KSA 75-7b01 thru 7b22) and Kansas Administrative Regulations for Office of the Attorney General (Agency 16 Articles 1-5, KAR 16-1-* through 16-5-*). The licensing act was originally enacted in the 1970s; it was updated and amended in 1998 to clarify conflicts with federal codes and state statutes and to address recurring problems. The licensing act specifically prohibits municipalities from regulating private detectives (KSA 75-7b18).

Background Screening of Private Detectives. Kansas Private Detectives come from varied backgrounds; law enforcement training and experience is not required. Some are licensed in other professions or have extensive specialized experience. All are screened and required to meet the following for licensing as a private detective in Kansas: Background screening (KSA 75-7b02, 75-7b04, 75-7b20 and KAR 16-3-3):

• Qualifiers:
  
  
  • At least 21 years of age
    
  • Citizen of the United States or resident alien
    
  • Good moral character - (application requires 5 character references)
    
  • High school graduate or have earned a graduate equivalency degree
    
  • Pass a written exam on private detective business
    
  • Submit to an oral interview by the regulating agency
    
  • Submit current photographs and fingerprints
  
  
• Disqualifiers:
  
  
  • Law enforcement officer in Kansas
    
  • Committed any act constituting dishonesty or fraud
    
  • A bad moral character or a bad reputation for truth, honesty, and integrity
    
  • Been convicted of a felony or, within 10 years immediately prior to the date of application, been convicted of any crime involving moral turpitude, dishonesty, vehicular homicide, assault, battery, assault of a law enforcement officer, misdemeanor battery against a law enforcement officer, criminal restraint, sexual battery, endangering a child, intimidation of a witness or victim or illegally using, carrying, or possessing a dangerous weapon
    
  • Incompetent, incapacitated or impaired by reason of mental condition, deficiency or disease
    
  • Evidence current addiction to, dependence on or abuse of alcohol or a controlled substance as defined in KSA 65-4101 and amendments thereto. Such evidence may include, but is not limited to conviction of any crime involving the possession, use, consumption or self-administration of alcohol or any controlled substance as defined in KSA 65-4101 and amendments thereto.
    
  • Falsification of information on application.

Type and Number of Licensees. The licensing act provides for the licensing of private detective agencies, private detectives, firearm trainers, and firearm permits. Typically about 100- 150 private detective agency licenses, 450-550 private detective licenses, 10-12 private detective firearm trainer licenses, and 100-150 private detective firearm permits are issued in Kansas. The licenses are valid for a period of two years. The act contains exemptions from licensing for limited categories of private investigations; these categories include (KSA 75-7b03):

• Employees of a business who conduct only internal affairs investigations
  
• Governmental officers or employees
  
• Credit reporting agency employees
  
• Charitable society or associations incorporated as not for private profit
  
• Attorney and employees of the attorney or law firm
  
• Licensed collection agency or an employees
  
• Admitted insurers, agents and insurance brokers licensed by the state
  
• The legal owner of personal property in connection with the recovery of such personal property
  
• Any bank subject to regulation by the state or federal government
  
• Public records researchers
  
• An insurance adjuster
  
• Private patrol operator while actually engaged in providing private patrol services on the property to which patrol services are being provided
  
• Marketing researchers

Confirmation of Private Detective Licensing Status. The Kansas Bureau of Investigation maintains the licensing status of private detectives. It does not enter any indicators into NCIC, ALERT, or other standard police databases. Licensing status may be confirmed by contacting the Private Detective Licensing Section at KBI Headquarters or by utilizing the link on the KBI Internet website: www.accesskansas.org/kbi/

Private Detective Identification. The Kansas Bureau of Investigation issues a personal identification card to each private detective (referred to as a ‘pocket card' in the licensing act). It is a simple white card (4" x 3") titled ‘Licensed Private Detective, State of Kansas' and listing the licensee's name, business name, license number and expiration date. It has a line for the licensee's signature, a copy of the current licensee photo and a printed signature of the Kansas Attorney General. Those private detectives with a firearm permit will also have a firearm permit number (in red) and a badge number (if they requested the optional badge) listed on the front. On the back of the pocket card will be a listing of the specific firearms the private detective is qualified to carry by manufacturer, serial number and caliber along with blocks for thumb prints of the private detective. The identification card is issued by the KBI to the private detective agency or independent private detective unlaminated; the private detective adds his signature and fingerprints and then laminates it. If the private detective requests and pays for an optional firearm permit badge, the private detective is issued a plain silver badge approximately 2" x 2½" with blue inset lettering reading ‘Licensed Private Detective Firearm Permit (badge #) Kansas'. It has no seal, no agency name, and bears no similarity to a law enforcement officer badge. The Firearm Permit Badge is issued in a folding black leather ID case approximately 4½" by 3" (closed) with the badge inset on one side and a clear window for the pocket card on the other. Private Detectives are also issued an 8½" x 11" business license for display in their office. KBI example of pocket card

Private Detective Identification Issues and Requirements.

• Presentation of the KBI-issued ‘pocket card' identification is evidence of licensure (KSA 75-7b06(b)).
  
• Falsification of the photo or fingerprints on a KBI-issued private detective pocket card is a class E felony (KSA 75-7b19)
  
• Licensed private detectives with firearm permits are required to have the KBI issued pocket card identification in their possession when carrying a firearm and are required to display the identification, on request, to a law enforcement officer or to a private property owner when on private property (KSA 75-7b17(d)). The firearm permit badge may not be removed from the ID case and displayed separately.
  
• Licensed private detectives without a firearm permit are not legally required by the licensing act to display their private detective identification.
  
• False Impersonation of a licensed private detective is a criminal misdemeanor (KSA 21- 3824)
  
• Licensed private detectives may not display any other badges in connection with their private detective business and may not use a title, identification card, insignia, names, etc. which give the impression that they represent a government agency (KSA 75-7b08, 18 USC 701, 18 USC 712).
  
• Licensed private detectives may not use an alias (KSA 75-7b08)
  
• Licensed private detectives who are no longer employed in the business or whose license has been revoked of suspended by the regulating agency must surrender their identification to the KBI within 5 days (KSA 75-7b08(b), 75-7b17(c)).
  
• Private Detective licenses and identification may only be suspended or revoked by the Attorney General under the provisions on the Kansas Administrative Procedures Act (KSA 77-501 thru 549). Law enforcement officers, other than the KBI, do not have the authority to administratively recover a private detective license or pocket card identification.
  
• Seizure of a private detective license or pocket card identification by a law enforcement officer may only occur when the license or card itself is direct evidence of a crime. [Note: The license or pocket card is legally considered by the court as a property interest of the business licensee; inappropriate intentional seizure would meet the definition of a misdemeanor theft under Kansas statutes since it constitutes unauthorized control of property which denies the owner of the benefit of the property.(KSA 21-3701)]

Investigative Information Release by Private Detectives. Information obtained by a private detective during an investigation is client controlled, but is not judicially recognized as privileged communication. Private detectives are prohibited by the licensing act from releasing investigative information except at the direction of the client for whom the information was obtained or in response to an appropriate court order or court-issued subpoena (KSA 75-7b08, 75-7b15). The licensing act also specifically prohibits private detectives from:

• Knowingly making any false report
  
• Failing to exercise diligence in ascertaining whether or not the facts and information in such reports are true and correct
  
• Manufacturing or producing any false evidence
  
• Using information in a manner adverse to a client for whom it was obtained

Private Detective Firearm Permits. Firearm Permits are issued to private detectives on an optional basis after meeting standards specified in the licensing act (KSA 75-7b17) and administrative requirements in KAR 16-5-4 and 16-6-1. Private Detectives must meet the following requirements:

• Hold a valid private detective license in Kansas
  
• Statement or demonstration of a need for the firearm permit.
  
• Completion of an approved 16 hour training course which covers the following areas:
  
  
  • lawful use of force by a private detective (not a law enforcement officer)
    
  • weapons fundamentals and safety
    
  • marksmanship fundamentals and safety procedures
    
  • care, cleaning and maintenance of weapons
    
  • familiarization in basic weapon retention and disarming techniques
    
  • familiarization in daylight, dimlight and darkness shooting
    
  • shooting exercises with semi-automatic pistols or revolvers
    
  • Pass a written examination with a 70% score or better
    
  • Pass a daylight course of fire of 50 rounds with a 70% score or better
    
  • Qualification firing with each firearm to be carried (by make, model & serial #)
    
  • Biannual update training of at least 2 hours
    
  • Annual qualification firing with each firearm to be carried (by make, model & serial #)

Firearm Permit Carry Limitations, Exemptions, Restrictions or Permissions.

• The firearm permit is for the limited authority to carry a concealed handgun while actually engaged in the duties of a private detective (KSA 75-7b01(h), KSA 75-7b17(a), KSA 21-4201(c)(3))
  
• The firearm permit applies only to handguns (KSA 75-7b01(i)); there is no restriction on size, caliber, or action type of the handgun.
  
• The make, serial number, and caliber of each handgun carried must be listed on the firearm permit; more than one handgun may be carried (KSA 75-7b17(b))
  
• KSA 21-4201(c)(3) exempts private detectives from the state law prohibiting carrying of concealed firearms. This exemption does not affect state law restrictions on carry of other weapons such as knives, nightsticks, tear gas, etc.
  
• KSA 21-4217(b)(5) exempts private detectives from criminal discharge of a firearm prohibitions while engaged in private detective business
  
• There are no exemptions for private detectives in KSA 21-4204 (carry of firearms on school property) or KSA 21-4218 (carry of firearms in state buildings and county courthouses)
  
• Private detectives are exempt from municipal ordinances restricting concealed carry of firearms while engaged in the private detective business (KSA 75-7b18)
  
• Carry of a concealed firearm under a private detective firearm permit is also permissible:
  
  
  • On federal facilities other than a federal courthouse within the state [18 USC 930(c)(3)][Note: Apply 18 USC 7 (federal jurisdiction) and the Assimilative Crimes Act to the phrase ‘lawful purposes' contained in that section of the cited code]
    
  • Within the sterile area of an airport with the written permission of the airport manager or security director (14 CFR 108.11)
    
  • Within the public area of a postal facility (39 CFR 232.1(1))[Apply 18 USC 930(c)(3), 18 USC 7 and Assimilative Crimes Act to the phrase ‘official purposes' found in the cited code.]
    
  • On school property with the written permission of the school principal or district superintendent (KSA 21-4204(c)(2&3)
    
  • Within state buildings not specifically listed in KSA 21-4218 or posted with a warning sign at the entrance in accordance with KAR 1-49-11
    
  • Within county buildings that do not have a court including sheriff's office and jail facilities (KSA 21-4218 and KAR 1-49-11)
    
  • Within any municipal buildings including police stations and courts [Note: Municipal governments, including courts, apparently lack the authority to restrict private detective firearm carry (KSA 75-7b18)
    
  • On private property where there is public access

Prosecutions, Considerations and Unresolved Issues under the Licensing Act.

• Violations of the Private Detective Licensing Act are class A misdemeanors (KSA 75- 7b20) with the exception of falsification of photos and fingerprints on an application (class E felony).
  
• While the Attorney General is the regulating agency for Private Detectives in Kansas, the Office of the Attorney General has determined that the licensing act is a law of general application which makes any violations prosecutable by either the Attorney General or any County Attorney.
  
• Violations of the Administrative Regulations pertaining to Private Detectives are strictly a regulatory agency function; they can not be addressed by County Attorneys, only by the Office of the Attorney General.
  
• Most of the licensing act applies only to licensed private detectives, but some portions apply to anyone including unlicensed investigators eligible for an exemption and law enforcement officers.
  
• The primary legal test for determining whether an activity is covered by the licensing act is the definition of Detective Business found in KSA 75-7b01(a). Application of the definitions for a Private Detective or a Private Patrol Operator found in KSA 75-7b01(b) or (d) may also be necessary.
  
• Issues. The following legal issues are not clarified or resolved:
  
  
  • The exact legal boundary between private detective business and private patrol operator business. Private patrol operators may perform limited investigations only on property they patrol or guard (KSA 75-7b03). Private Detectives are neither prohibited from nor specifically empowered to perform private patrol operations under a Private Detective license.
    
  • The exact legal boundary between private detectives and bail bond fugitive recovery operations. Investigations to locate a person meet the definition of private detective business, but fugitive recovery does not. Court appointments may not prevent prosecution of a fugitive recovery agent under the licensing act. (KSA 75-7b01(a) & (b).
    
  • The exact legal boundary between private detectives and process servers. Investigations to locate a person meets the definition of private detective business; court appointments for process servers may not deter prosecution under the licensing act. (KSA 75-7b01(a) & (b).
    
  • KSA 75-7b01 and 7b17 grant limited authority to carry concealed firearms under a firearm permit while actually engaged in the duties of their employment (private detective business). Whether these sections confer authority for open carry of the firearm is not completely clear. Since the state weapons law ( KSA 21-2401) allows open carry and since KSA 75-7b18 prohibits municipalities from regulating private detectives, the answer is probably yes, open carry by private detectives is permitted. This interpretation is supported by Kansas case law which includes court precedent that it is more dangerous to the public for a person to carry firearms concealed than to carry openly. Since the overall point is public safety, the visibility of the firearm serves notice to those present that the individual is armed allowing them to act accordingly.[See Kan. (1979) State vs Chiles 595 P.2d 1130, 226 Kan. 140]
    
  • KSA 75-7b01, 75-7b17 and 21-4201(c)(3) grant limited authority for private detectives to carry concealed firearms under a firearm permit while actually engaged in the duties of their employment (private detective business). It is not clear when the duties of a private detective terminate for a combination of reasons. Many operate from home offices or carry business cell phones and pagers continually making it difficult to determine when the work day ends, and clients are typically billed for the travel time to and from the location of any investigative interviews, surveillance, etc. as well as for administrative time to prepare reports. In addition, all businesses have certain legal duties to the public under the reasonable care civil liability doctrine. These duties are part of the employment of any private detective operating a business and continue throughout the life of the business. They do not turn on and off on some daily, hourly schedule. Law enforcement officers tend to interpret this private detective ‘duty' in a ‘9-5' format similar to a police shift or watch. This interpretation doesn't fit the business liability obligations inherent in private detective business use of a firearm. Such business use attaches the Kansas firearm liability case law precedents to the licensee's business imposing a continual duty of the ‘highest degree of care' to meet the business reasonable care civil liability doctrine. [See Kan. (1962) Wroth vs McKinney 373 P.2d 216, 190 Kan 127 and Kansas Supreme Court (2000) Wood, et al vs Groh et al, No 81,826 for the court interpretation of Kansas firearm owner liability standard]. In short, the private detective has a duty to the public in the business operations to insure that the firearm is under the highest degree of care even when the private detective is not actually performing services which can be billed to a particular client. This duty exists throughout the life of the business and is not directly tied to private detective schedules or billable service hours. It continues during business administrative activities, travel time periods, breaks, or storage of the firearm in the home, office or vehicle. Consequently, determining when the private detective is ‘actually engaged in the duties of his employment' is not as simple a question to answer as the average law enforcement officer would typically believe. Discussions with the Office of the Attorney General by the Kansas Association of Private Investigators during the process to amend the private detective licensing act in 1998 touched on this issue and related topics. The private detectives were left with the impression that the intent behind the statutory language was to tie the firearm use and exemption for concealed carry to business operations rather that to personal rights of the individual private detective. KAPI believes that the firearm carry provisions should be interpreted in that light and the broad viewpoint of private detective duties should be used in determining whether a firearm carry violation by a private detective has occurred.

Cautions for Law Enforcement Agencies.

• Presentation of the KBI-issued ‘pocket card' identification is evidence of licensure (KSA 75-7b06(b)). Failure of a law enforcement officer to recognize or accept this pocket card identification could subject the agency or officer to civil liability if an arrest is initiated on the basis that it is believed to be false identification. The arrested licensed private detective can demonstrate a clear civil rights violation based on unlawful arrest resulting from a training failure of the agency using the liability standards found in City of Canton vs Harris, 489 US 378 (1989); this state-issued identification has been in existence for over 25 years virtually unchanged. The failure to recognize and acknowledge the business privileges or exemptions of such a state-issued identification would be a direct causation leading to an unlawful arrest and would probably not be considered a ‘good faith error' due to the longevity of the identification's existance. KAPI recommends Private Detective pocket card and firearm permit badge recognition training for all law enforcement officers.
  
  
• Demands for Investigative Information. Private detectives are prohibited by the licensing act from releasing investigative information except at the direction of the client for whom the information was obtained or in response to an appropriate court order or court-issued subpoena (signed by a judge not an attorney). Exemptions for law enforcement officers or attorneys are not included in the licensing act (KSA 75-7b08, 75- 7b15). Since any violation of the licensing act is a misdemeanor (KSA 75-7b19), a law enforcement officer or attorney who demands such information without a court order or client permission is actually demanding that the private detective commit a criminal offense. Such a demand is both unethical and prosecutable. KAPI recommends that law enforcement requests for investigative information be clearly conditional on prior client approval or that an appropriate search warrant or court order be sought prior to presentation of the request.
  
  
• Street arrests for firearms violations by private detectives. The recognition problem of private detective identification cited above, the prohibition against municipalities regulating private detectives found in KSA 75-7b18, the lack of clarity about both the legality of open carry by a private detective and the exact interpretation of the phrase ‘while actually engaged in the duties of their employment', and the various administrative requirements for properly qualifying with and listing a firearm on a private detective license all combine to make determination of a violation of firearms carry laws by a private detective an unusually complicated and tangled legal knot. It is better to consult with the regulating agency and the county attorney prior to initiating any arrest for a firearms violation. KAPI recommends against street arrests of private detectives for suspected firearms carry violations unless there is a clear, obvious, immediate danger to someone. Remember, all private detectives are screened for felonies, assaults, batteries, and weapons violations prior to licensing. They are far less likely to be dangerous than the typical suspicious person encountered by law enforcement personnel. Documenting the incident and requesting a warrant is recommended rather than a field arrest.

Prepared by:

John W. Ellis, B.S., M.A.J.
Licensed Private Detective
Certified Firearms Instructor

Major, Military Police, US Army Reserve (Ret)

President, Kansas Association of Private Investigators