Jeremy Barnes was a former police officer and entrepreneur who in early 2020 started a private investigation business near the Utah border in Franklin, Idaho. Despite nearly twelve years of law enforcement experience, no criminal record, and a bachelor’s degree in criminal justice, Utah said Jeremy couldn’t earn an honest living working as a private investigator there. Why? Because he lived three minutes from the Utah border in the state of Idaho.

The state of Utah prevented anyone who is not a resident of the state from becoming a private investigator no matter what their qualifications are. Sherlock Holmes or Batman couldn’t work as a private investigator in Utah without moving there first. Created at the behest of the largest private investigator organization in Utah, the residency requirement’s purpose—in the words of one legislative supporter—was to “prohibit less qualified out-of-state competitors from taking Utah jobs.” Protectionist laws like this, which have no purpose but to discriminate against out-of-state persons, aren’t just bad policy, they’re unconstitutional.

Jeremy met or exceeded every requirement to work as a private investigator in Utah except one: his place of residence. But the Constitution makes it clear that states cannot discriminate against residents of other states. That’s why he teamed up with the Institute for Justice (IJ) to file a federal lawsuit to put an end to this unconstitutional residency requirement in April 2020. In the face of his lawsuit, during a special session Utah’s governor called shortly afterward, the Utah legislature repealed its residency requirement for private investigators in July 2020. Jeremy’s application to become a private investigator was approved before fall.

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Jeremy Barnes: Former Law Enforcement Officer Who Can’t Be a Private Investigator Because of his Zip Code.

In his twelve years of service, Jeremy was promoted from patrol deputy to a plain-clothes narcotics detective. After leaving police work to pursue a new career in early January 2020, Jeremy and his family moved to Franklin to be closer to their family.

With the move complete, Jeremy set his sights on opening and running his own private investigation business. In Idaho, he doesn’t need a state license to work as a private investigator, and Jeremy officially opened his company, Mission Investigations Group, LLC on January 27, 2020. But Jeremy lives in a comparatively rural area, and he quickly realized that for his business to survive, he would need clients in the nearby city of Logan, Utah, which is just a few minutes across the state border.

That’s when Jeremy learned about Utah’s residency requirement for private investigators. In fact, when Jeremy called the Utah Department of Public Safety to learn how to get licensed as a private investigator in Utah, he was told he shouldn’t even bother applying, because he doesn’t live in Utah.

Jeremy meets all application requirements except for the residency requirement. He is the proper age, has no criminal record, has the required number of hours of applicable investigative experience, and can get the required amount of liability insurance. By law, the licensing Board is required to grant a license to anyone who meets these requirements. If Jeremy were a Utah resident, he would be granted the license.

Unable to sustain his private investigation business without access to the Utah market, Jeremy found another job working as a rural postal carrier. But he intends to work full time as a private investigator when he wins this case and secures his license.

Utah Is the Only State in the Country with a Residency Requirement for Private Investigators

Utah began licensing private investigators in 1995 and at that time, allowed anyone who was a “citizen or legal resident of the United States,” at least 21-years old, and of good moral character to apply. This fell in line with every other state private investigator license requirement within the United States. But all that changed once the Private Investigators Association of Utah—the largest private investigator association in the state—stepped in. A 2011 bill—written by and for the Association—changed the residency requirement to say that an applicant must be a “legal resident of the state” of Utah.

The change was unprecedented. No other state that licenses private investigators has a residency requirement, nor does any other Utah occupational license require in-state residency. If other states safely license private investigators without such burdensome restrictions, why does Utah need them?

During committee hearings, Representative Keith Grover said this new residency requirement “prohibits less qualified out-of-state competitors from taking Utah jobs.” But the truth of the matter is that this is a “self-preservation bill,” said Representative David Clark at the same hearing.

The Utah residency requirement is textbook economic protectionism. It’s also clearly unconstitutional.

Jeremy and the Institute for Justice are Fighting Back

Jeremy isn’t giving up his private-investigation business without a fight. He’s teamed up with IJ to file a federal lawsuit against the Utah Department of Public Safety, challenging the state’s unconstitutional residency requirement.

Utah’s residency requirement violates the U.S. Constitution in three ways: it violates the Equal Protection Clause by discriminating against nonresidents; it violates the Privileges and Immunities Clause by not offering the same privileges of state citizenship to nonresidents; and it violates the Commerce Clause by burdening interstate commerce by discriminating against nonresidents.

Equal Protection Clause

The Equal Protection Clause guarantees all persons in the United States the “equal protection of the laws,” but that is not what Utah is doing. Rather, Utah is outright discriminating between Utah private investigators and out-of-state private investigators. For a law like this to survive an equal protection challenge, the government must show some legitimate governmental purpose for the law and that the law is rationally related to that purpose. But the U.S. Supreme Court has already held that “discriminating against nonresident competitors is not a legitimate state purpose.” 1 The Utah private investigator residency requirement has no purpose other than outright economic protectionism, and that is unconstitutional.

Privileges and Immunities Clause

The Privileges and Immunities Clause of Article IV of the Constitution was derived from the Articles of Confederation with the intent of creating a national economic union. To achieve this, states must give residents and nonresidents the same privileges. One of these privileges is the right to pursue a livelihood free from burdensome restrictions based solely on residency. But this is exactly what Utah is doing. Jeremy—who otherwise meets the requirements for a license—cannot get one simply because of where he lives, and it is therefore unconstitutional.

Dormant Commerce Clause

The Commerce Clause of the U.S. Constitution grants to Congress—and Congress alone—the authority to regulate interstate commerce. Implicit in that is that the states do not have authority to regulate interstate commerce. Often called the “Dormant Commerce Clause,” this limit on the power of the states is a safeguard against economic protectionism and ensures the continued existence of our national common market.

Under the Supreme Court’s Dormant Commerce Clause precedent, laws that discriminate on their face against out-of-state actors are invalid. For example, in a 2005 decision in another IJ case, the Supreme Court invalidated a Michigan law under the Dormant Commerce Clause that prohibited out-of-state wineries from shipping their product directly to consumers, while allowing in-state wineries to do so 2 . Here, Utah’s law obviously discriminates against out-of-state persons—that’s its entire purpose—and thus the law is unconstitutional.

The Litigation Team

This case was litigated by IJ senior attorney Jeff Rowes and IJ constitutional law fellow Richard Hoover, who litigate economic liberty cases nationwide. Jared Coburn, of Coburn Law, served as local counsel.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for economic liberty. Since 1991, IJ has worked to protect the right to earn an honest living. IJ has successfully challenged protectionist residency requirements in two U.S. Supreme Court Cases; Tennessee Wine and Spirits Retailers Association v. Thomas, and Granholm v. Heald.

For more information about this case, please contact IJ senior director of communications J. Justin Wilson at [email protected] or (703) 682-9320 ext. 206.

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