Guns getting go-ahead for some licensing board investigators

As U.S. gun shops continue to rack up record sales, pharmacies and medical offices are becoming more and more likely to have firearms in their facilities, and some state boards are considering a “fight fire with fire” approach in ensuring their investigators remain safe.

Since 2011, boards have become increasingly receptive to the option of arming their board investigators. “It is something we would like in the future…. It is part of our strategic plan,” said Yvette Yarbrough, executive director of the Texas Board of Chiropractic Examiners in 2013, testifying before a state legislative appropriations committee.

Why arm investigators? Yarbrough was asked. She answered: “Even though we have statutory authority to inspect facilities…sometimes if you meet resistance…this would help us in that regard; and additionally help us in obtaining some information.”

In 2013, Mari Robinson, executive director of the Texas Medical Board, in a letter to the Attorney General, Greg Abbott, inquired about the legality of arming board investigators.

Abbott replied, “Texas law does not prohibit the Texas Medical Board from allowing its investigators who are not commissioned as peace officers to carry a concealed handgun pursuant to the concealed handgun law while the investigators are on duty.”

Abbott also pointed out that it’s unclear how a court would rule concerning an employer’s responsibility if an employee negligently used a licensed firearm.

Today, more boards are considering arming their investigators, according to Molly Marsh, the Membership and Training Coordinator at CLEAR (Council on License, Enforcement and Regulation). “This is certainly an important topic for many boards right now and we have incorporated information regarding investigator safety into our National Certified Investigator & Inspector Training (NCIT) programs,” stated Marsh.

Medical boards have authorized their investigators to be allowed to carry firearms in the past.

In 2011, the Ohio Medical Board unanimously voted for board investigators to be allowed to carry guns on the job. The board cited the growing influx of “outlaw pain-pill practices” and the likelihood that pill mill locations contained hidden weapons as reasons for the allowance of their investigators to carry guns.

“This is not something that anyone is particularly excited about,” executive board director Richard Whitehouse said after the vote passed. He pointed out that investigators would only need to carry guns for dire situations in which danger could be foreseen.

Whitehouse also noted that although no medical board investigators have been harmed on the job, it has become much more common for investigators to encounter armed employees at professionals’ places of practice.

Michael Ferjak, Director of Human Trafficking Enforcement and Prosecution Initiative with the Iowa Department of Justice is senior instructor for CLEAR’s NCIT program. Ferjak says while it’s still rare for investigators to carry guns, some boards are more likely than others to arm their investigators.

Pharmacy board investigations, for instance, often handle drug enforcement and criminal investigations. These boards typically employ agents who are sworn peace officers, which allows for the carrying of firearms during a criminal investigation of a pharmacy.

Still, Ferjak pointed out that the number of armed investigators is still small. “I rarely find regulatory agencies that allow their investigators to go armed,” stated Ferjak. He also noted that arming investigators has never been common, and that, from a historical perspective, arming investigators has been “sporadic.”

However, Ferjak added, a board investigator’s work can be dangerous, even in seemingly routine circumstances. “There are multiple accounts of regulatory investigators being physically and sexually assaulted or killed while performing seemingly routine duties including record gathering, inspections, interviews, etc.”

Ferjak pointed to several incidents in the last 15 years where board investigators have been victims of retaliaiont by individuals under board investigation.

In 2000, for instance, the owner of a California meat processing plant shot three state health inspectors. The inspectors were conducting a scheduled re-inspection of the plant after the facility had failed an annual inspection. The owner shot each investigator in the chest with a .357 magnum pistol at point-blank range, killing them.

In 2011, a Louisiana insurance agent fatally shot two insurance investigators. The investigators had arrived at the insurance agency’s premises to investigate a fraud claim.

In response to those who contend that violent altercations involving board investigators are uncommon, Ferjak suggests that the uncertainty surrounding an investigator’s job makes it a complicated issue.

“No one can accurately or consistently predict how another person will react under a given set of circumstances at any given time,” said Ferjak, “Everyone is capable of violence under some circumstances. The problem is the regulatory investigator is never going to know if that day is today.”

As for the procedure of firearm licensing for investigators, it varies by state, but “in most states there are generally two types of weapon permits; professional and non-professional,” stated Ferjak.

“Professional permits are primarily issued to law enforcement personnel and rarely anyone else.  Non-professional permits are issued to members of the general public after being cleared by a background check and showing proof of completing some type of course of instruction.”

Many boards that voted to allow their investigators to carry a firearm require them to undergo a minimum of 40 hours of training. In Ohio, for example, investigators must train at the Ohio Peace Officers Academy and obtain re-certification annually.

Unarmed board investigators are taking an incredible risk that even trained law enforcement officers are not willing to take, Ferjak believes. “Generally licensees do not fully or accurately understand the authority and powers of a regulatory investigator and may react if a threat to liberty or employment is perceived.”

When he teaches classes, he asks: “How long would it take for your boss or office to notice you were missing? The answer (after some uncomfortable joking) is usually at least the next day. How many let the office know where they are, especially when entering a private residence or business? Does anyone check to see if they are ok and when?  Minimal responses.”

But given the proliferation of firearms in the field and in professional offices, “Letting someone know where they are going is a precaution that investigators should strongly consider,” Ferjak believes.