587 F.3d 1136 (D.C. Cir. 2009), 08-7094, Ord v. District of Columbia

Docket Nº:08-7094
Citation:587 F.3d 1136
Opinion Judge:TATEL, Circuit Judge.
Attorney:Matthew A. LeFande argued the cause and filed the briefs for appellant. Todd S. Kim, Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Peter J. Nickles, Attorney General, and Donna M. Murasky, Deputy Solicitor...
Judge Panel:Before: ROGERS, TATEL, and BROWN, Circuit Judges. BROWN, Circuit Judge, dissenting in part:
Case Date:December 04, 2009
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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587 F.3d 1136 (D.C. Cir. 2009)




No. 08-7094

United States Court of Appeals, District of Columbia Circuit

December 4, 2009

Argued September 18, 2009

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Appeal from the United States District Court for the District of Columbia. (No. 1:08-cv-00704).

Matthew A. LeFande argued the cause and filed the briefs for appellant.

Todd S. Kim, Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Peter J. Nickles, Attorney General, and Donna M. Murasky, Deputy Solicitor General.

Alan Gura and Arthur B. Spitzer were on the brief for amici curiae Second Amendment Foundation, Inc. and American Civil Liberties Union of the National Capital Area in support of appellant.

Before: ROGERS, TATEL, and BROWN, Circuit Judges.


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TATEL, Circuit Judge.

Appellant, a Virginia Special Conservator of the Peace authorized to carry weapons within the Commonwealth, brought suit against the District of Columbia alleging that it lacked probable cause to secure an arrest warrant against him for allegedly violating D.C. firearms laws. Because appellant was never arrested, the district court treated his suit as a preenforcement challenge and, finding that appellant failed to demonstrate that he faces a genuine and imminent risk of prosecution, dismissed it for lack of standing. For the reasons set forth in this opinion, we reverse.


In 2007, the Virginia Circuit Court of Orange County appointed appellant Robert Ord a Special Conservator of the Peace (SCOP). That order authorized Ord to carry firearms while acting in the course of his duties. It also designated him a " Qualified Law Enforcement Officer" with respect to certain provisions of Virginia and federal law, including the federal Law Enforcement Officers Safety Act of 2004. Known as LEOSA, that statute allows officers to carry concealed firearms notwithstanding contrary state law. See 18 U.S.C. § 926B.

Ord owns Falken Industries, a private security company holding a Detective Agency License issued by the D.C. Metropolitan Police Department (MPD). Since 2006, Falken has provided private security services within the District of Columbia. In 2008, sowing the seeds of this litigation, Falken contracted to provide armed security at a District of Columbia Head Start school. Because certain aspects of that contract required MPD approval, Ord discussed it with an MPD officer and submitted requested paperwork. Although Ord was told that " all things looked 'OK,'" Appellant's Aff. ¶ 16, he learned a few days later that the MPD had arrested Falken employees stationed at the school for carrying weapons without permits. An MPD officer then told Ord that a warrant had been issued for his arrest for violating D.C. Code § 7-2502.01(a), which prohibits carrying a firearm without a license. The next day Ord noticed several MPD officers near Falken's Virginia headquarters.

After learning of the warrant, Ord's attorney contacted the D.C. Office of the Attorney General (OAG), supplied evidence of Ord's SCOP status, and demanded nullification of the warrant because of Ord's exemption from the District of Columbia's firearms law. Although an OAG official initially indicated that the office would " not go forward with this warrant," Compl. ¶ 26, OAG changed its position several

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hours later, informing counsel that it might enforce the warrant. Ord's attorney immediately asked the D.C. Superior Court to quash the warrant. Again reversing course and shortly before a scheduled hearing, OAG declared a nolle prosequi. Ord was never arrested.

Fearing future prosecution and claiming injury from the arrest warrant, Ord brought suit in federal district court, seeking damages for a Fourth Amendment violation under 42 U.S.C. § 1983. In his complaint, Ord alleged that MPD officers filed the affidavit in support of the warrant in bad faith and without probable cause. According to Ord, MPD officers knew not only that Ord is an SCOP, but also that SCOP status exempts him from section 7-2502.01(a)'s ban on possessing weapons in the District of Columbia. He cited section 7-2502.01(b), which provides that " any law enforcement officer or agent of the government of any state or subdivision thereof" is exempt from the statute if he is " authorized to possess . . . a firearm . . . while on duty in the performance of official authorized functions."

In support of his damages claim, Ord alleged that the issuance of an arrest warrant without probable cause required him to incur substantial attorney's fees and forced his company to abandon contracts to provide armed security in the District of Columbia--contracts that were worth several hundred thousand dollars. Alleging that the MPD may arrest him in the future in order to intimidate him from competing with off-duty MPD officers for private security contracts, Ord also sought declaratory and injunctive relief. Specifically, Ord asked the court to declare him (1) a " law enforcement officer or agent of the government of any state or subdivision thereof" for the purposes of D.C. law and (2) exempt from D.C. Code § 7-2502.01(a) and " other such District of Columbia firearms regulations wherein law enforcement officers or agents are exempt therefrom." Compl. ¶¶ 48-49. Finally, Ord asked the court to enjoin the District of Columbia from enforcing or prosecuting " such laws" against him. Id. ¶ 50.

The district court, focusing on Ord's request for declaratory and injunctive relief, labeled his claim a " preenforcement challenge" and dismissed the complaint for lack of standing under Federal Rule of Civil Procedure 12(b)(1). Ord v. District of Columbia, 573 F.Supp.2d 88 (2008). Although the court acknowledged that " [a] credible and imminent threat of prosecution . . . 'can simultaneously ripen a preenforcement challenge and give the threatened party standing,'" id. at 92 (quoting Navegar, Inc. v. United States, 103 F.3d 994, 998, 322 U.S.App.D.C. 288 (D.C. Cir. 1997)), it nonetheless ruled that Ord had no basis for asserting such a credible and imminent threat of prosecution because " the affirmative step by the District to nullify the warrant is strong evidence that the District does not presently intend to prosecute Ord," id. at 94-95. The court also rejected Ord's reliance on a memorandum the MPD sent to Reserve Corps Members, which stated that LEOSA authorizes only " employees of government agencies" to carry firearms within the District of Columbia, see 18 U.S.C. § 926B(c), and warned that SCOPs not " covered" by LEOSA will be subject to all relevant criminal penalties for violating D.C. firearms laws, Mem. of Victor Brito, Inspector/Director, MPD (Feb. 2, 2008). Pointing out that " this memorandum was not sent to [Ord] and does not include him as a member of its general audience," the district court found that the memorandum's " general recognition of, or even intention to enforce, the District's firearms laws does not establish that Ord was specifically targeted" for prosecution as required by our standing cases. Ord, 573 F.Supp.2d at 95.

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Ord appeals, arguing that he has sufficiently alleged standing based on the previous arrest warrant, his allegations of bad faith, and the MPD memorandum. Amici curiae, the Second Amendment Foundation and the American Civil Liberties Union of the National Capital Area, urge us to overrule our preenforcement standing cases because, in their view, they conflict with Supreme Court doctrine.


As an initial matter, the District of Columbia urges us to convert its motion to dismiss into a motion for summary judgment because the district court considered matters outside the pleadings, namely Ord's affidavit describing his business, the events surrounding the arrest warrant, and his concerns about future prosecution. See Fed.R.Civ.P. 12(d). But because Rule 12(d)'s conversion mechanism applies only to motions under Rule 12(b)(6) or 12(c), " the impropriety of transforming Rule 12(b)(1) motions into summary-judgment motions is well-settled." Haase v. Sessions, 835 F.2d 902, 906, 266 U.S.App.D.C. 325 (D.C. Cir. 1987) (internal quotation marks omitted). To be sure, the District of Columbia filed motions to dismiss under both Rules 12(b)(1) and 12(b)(6), but the district court ruled only on the Rule 12(b)(1) motion. We thus consider Ord's complaint and the parties' arguments under standards applicable to a motion to dismiss. Specifically, reviewing de novo, see, e.g., Doe v. Metro. Police Dep't, 445 F.3d 460, 465, 370 U.S.App.D.C. 381 (D.C. Cir. 2006), we " must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

With this standard in mind, we first consider whether Ord has sufficiently alleged Article III standing. Then in Part III we consider the District of Columbia's alternative jurisdictional argument, namely that Ord's preenforcement and damages claims are too insubstantial to invoke federal jurisdiction.

Preenforcement Challenge

To establish Article III standing, " [a] plaintiff must have suffered an 'injury in fact'--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). The plaintiff's injury must be " fairly traceable to the challenged action of the defendant," and likely to be " redressed by a favorable decision." Id. at 560-61...

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