The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 3, 2025 Decided July 7, 2026
No. 24-7127
GREGORY T. ANGELO, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-01878)
George L. Lyon Jr. argued the cause for appellants. With
him on the briefs were Edward M. Wenger and Caleb Acker.
Ashwin P. Phatak, Principal Deputy Solicitor General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With him on the brief were
Brian L. Schwalb, Attorney General, Office of the Attorney
General for the District of Columbia, Caroline S. Van Zile,
Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General,
Bryan J. Leitch, Assistant Attorney General, and Janice L.
Cole.
2
Before: SRINIVASAN, Chief Judge, MILLETT, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: The District of Columbia
criminalizes carrying firearms on public transportation.
Gregory T. Angelo, Tyler Yzaguirre, Dr. Robert M. Miller, and
Cameron M. Erickson all hold concealed-carry pistol licenses
issued by the District, and they each wish to carry their pistols
as they travel into and within the District, including on the D.C.
public transit system, which is commonly known as the Metro
system. To avoid criminal prosecution, they have each been
forced to take alternative and more expensive modes of
transportation within the District.
Mr. Angelo, Mr. Yzaguirre, Dr. Miller, and Mr. Erickson
(“pistol owners”) filed suit, alleging that the District’s ban
violates their Second and Fifth Amendment rights and seeking
declaratory, injunctive, and monetary relief. They sued the
District of Columbia, as well as three individual defendants in
both their official and personal capacities: then-D.C.
Metropolitan Police Chief Robert J. Contee III, D.C. Attorney
General Brian L. Schwalb, and Chief of the Washington
Metropolitan Area Transit Authority’s Metro Transit Police
Department Michael L. Anzallo.
The district court dismissed the case for lack of standing.
We affirm only (1) the district court’s dismissal of the claims
against Chief Anzallo in his official capacity, which rested on
alternate grounds the pistol owners have not appealed, and (2)
the district court’s dismissal of plaintiffs’ damages claims
against the individual defendants, which the pistol owners
abandoned below. Otherwise, because the pistol owners have
3
alleged a pocketbook injury that is caused by their compliance
with an allegedly unconstitutional criminal statute, we reverse
and remand the case for additional proceedings.
I
A
Under District of Columbia law, “[no] person holding a
license shall carry a pistol” in “[a] public transportation
vehicle, including the Metrorail transit system and its
stations[.]” D.C. Code § 7-2509.07(a)(6) (“Metro Ban”).
“Public transportation vehicle[s]” include “any publicly owned
or operated commercial vehicle, including any * * *
MetroAccess vehicle, Metrobus, or Metrorail train.” Id. § 7-
2509.07(g)(3). “Pistol[s]” include “any firearm originally
designed to be fired by use of a single hand or with a barrel less
than 12 inches in length.” Id. § 7-2501.01(12). Violators may
be fined or imprisoned for up to 180 days, id. § 7-
2509.10(a)(1), or, in the alternative, assessed civil penalties, id.
§ 7-2509.10(a)(2).
B
According to the allegations in the amended complaint,
Mr. Angelo, Mr. Yzaguirre, Dr. Miller, and Mr. Erickson all
hold concealed-carry pistol licenses issued by the District of
Columbia. J.A. 68, 70, 72, 74. The pistol owners “regular[ly]”
ride on the D.C. Metro system, which includes both trains and
buses, when not carrying their pistols. J.A. 68, 70, 72, 74.
They are “aware of instances of criminal violence occurring
on” the Metro system. J.A. 70, 74; J.A. 69, 72.
Although the pistol owners “fear [for their] personal
safety” on the Metro system, they cannot legally “carry [their]
4
concealed firearm[s] for personal protection.” J.A. 69, 71, 73–
75. At the same time, the pistol owners are “loath to break the
law[,]” J.A. 68, 70–71, 74, and they “fear * * * arrest [and]
prosecution” if they carry their pistols with them, J.A. 118
(Decl. of Gregory T. Angelo); J.A. 120 (Decl. of Tyler
Yzaguirre); J.A. 123 (Decl. of Cameron M. Erickson); J.A. 126
(Decl. of Robert M. Miller, Ph.D.).
To comply with the Metro Ban, the pistol owners have, “in
some circumstances[,] avoided using the Metro system”
entirely and paid for private transportation. J.A. 69, 71, 74
(Am. Compl.); J.A. 73. As a result, the pistol owners have had
to “expend sums greater for transportation” than they would
have if able to travel on the Metro system. J.A. 69, 71, 75. Dr.
Miller, for instance, has been forced to increase his spending
on “gasoline, mileage, tolls, and parking expenses.” J.A. 73.
As long as the Metro Ban remains in effect, the pistol owners
expect to continue incurring higher costs for transportation.
J.A. 69, 71, 73, 75. The pistol owners each declare that “but
for D.C. law,” they would avoid those expenses by using
“Metro trains and buses” for their transportation while carrying
their pistols. J.A. 118, 120, 123, 126.
C
On June 30, 2022, the pistol owners sued the District of
Columbia and then-D.C. Metropolitan Police Chief Robert J.
Contee III, in both his personal and official capacities, under
42 U.S.C. § 1983. Compl. ¶¶ 5–6, 81–83, ECF No. 1. 1 The
1
Chief Contee retired at the end of May 2023, and the current
officeholder, Interim Chief Jeffrey Carroll, took the mantle in
December 2025, while the case was pending before this court. Under
Federal Rule of Appellate Procedure 43(c)(2), Interim Chief Carroll
is substituted for former Chief Contee in his official capacity.
5
complaint alleged that the Metro Ban violates the pistol
owners’ Second and Fifth Amendment rights by prohibiting
them from carrying their firearms on the Metro system. Id.
¶¶ 81–83. They sought declaratory, injunctive, and monetary
relief. Id. at 34–35.
The pistol owners moved for a preliminary and permanent
injunction. The district court denied that motion. Angelo v.
District of Columbia, 648 F. Supp. 3d 116, 119 (D.D.C. 2022).
The court invoked this court’s precedent, rooted in Navegar,
Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997), to require
the pistol owners to “demonstrate that their prosecution results
from a special law enforcement priority, namely that they have
been ‘singled out or uniquely targeted by the * * * government
for prosecution.’” Angelo, 648 F. Supp. 3d at 124 (quoting Ord
v. District of Columbia, 587 F.3d 1136, 1140–1141 (D.C. Cir.
2009)); see id. (“The D.C. Circuit first articulated this
imminence requirement in Navegar[.]”). Since the pistol
owners could not satisfy this showing of a particularly
heightened risk of prosecution, the district court held that they
lacked standing because they “ha[d] failed to offer any
evidence regarding whether and how § 7-2509.07(a)(6) is
enforced.” Id. at 132.
The pistol owners amended their complaint to add two new
defendants—Brian Schwalb, the D.C. Attorney General, and
Michael Anzallo, Chief of the Washington Metropolitan Area
Transit Authority’s Metro Transit Police Department, in both
their official and personal capacities. See J.A. 75–77. The
Because the claims against former Chief Contee in his personal
capacity were dismissed in district court, Angelo v. District of
Columbia, No. 22-cv-1878, 2024 WL 3741401, at *12 (D.D.C. Aug.
9, 2024), and because the pistol owners do not challenge on appeal
that portion of the district court’s decision, he is no longer a
defendant in this case.
6
amended complaint also added allegations that the Metro Ban
had caused the pistol owners to take alternative, more
expensive modes of transportation. See J.A. 69, 71, 73–75. In
addition, Dr. Miller averred that he was “aware of instances
when persons unlawfully carrying concealed weapons on DC
Metro have been arrested and charged for violating the Metro
Ban.” J.A. 72.
Defendants moved to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Mot. to Dismiss by Michael
L. Anzallo, ECF No. 42; Mot. to Dismiss by Robert J. Contee,
III, District of Columbia, Brian Schwalb, ECF No. 44. After
briefing closed, the pistol owners filed “the result of an
information request directed to Metro” by Dr. Miller. Notice
of Suppl. Auth. at 3, ECF No. 51. According to the filing, Dr.
Miller had “asked Metro to advise him of the number of arrests
occurring on the Metro system in the District for the unlawful
carrying of firearms in years 2018 through 2022.” Id. In
response, Dr. Miller learned that a total of 71 firearm arrests on
the D.C. Metro system occurred during that timeframe. Id. at
4.
The district court granted the motions to dismiss. Angelo
v. District of Columbia, No. 22-cv-1878, 2024 WL 3741401, at
*12 (D.D.C. Aug. 9, 2024) (“Angelo II”).
To start, the district court concluded that the pistol owners’
new allegations did not move the needle on their standing for
declaratory and injunctive relief because they still had failed to
“allege any facts that, if accepted as true, would show that they
face (or would face) a credible and imminent threat of
prosecution (were they to violate the law).” Angelo II, 2024
WL 3741401, at *4.
7
Turning to standing for damages, the district court noted
that the pistol owners had abandoned their damages claims
against the individual defendants. Angelo II, 2024 WL
3741401, at *12. The court then held that the pistol owners
lacked standing to seek damages against the District for the
economic injuries caused by their efforts to comply with the
law. Id. at *10. The court reasoned that the Navegar plaintiffs
also had alleged economic losses in their complaint and
“invoked the cost of complying with the statute” in their
appellate briefing, yet they were held to lack standing. Id. at
*11.
Finally, the court rejected the pistol owners’ argument that
it should depart from this court’s standing precedent,
explaining that “unless and until the Court of Appeals overrules
Navegar and its progeny, this Court remains bound to follow
the rule.” Angelo II, 2024 WL 3741401, at *12.
The pistol owners timely appealed.
II
We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo a Rule 12(b)(1) dismissal for lack of standing.
Citizens for Const. Integrity v. Census Bureau, 115 F.4th 618,
624 (D.C. Cir. 2024).
The “irreducible constitutional minimum of standing”
requires that (1) the plaintiff must have suffered an “injury in
fact” that is “concrete,” “particularized,” and “actual or
imminent, not conjectural or hypothetical”; (2) the injury must
be “fairly traceable” to the defendant’s conduct; and (3) it must
be “likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–561 (1992) (formatting modified).
8
Because “standing is not dispensed in gross,” courts must
evaluate standing for “each claim” that plaintiffs press and “for
each form of relief that they seek[.]” TransUnion LLC v.
Ramirez, 594 U.S. 413, 431 (2021). In analyzing standing, we
assume that plaintiffs will prevail on the merits. Committee on
Judiciary of U.S. House of Representatives v. McGahn, 968
F.3d 755, 762 (D.C. Cir. 2020) (en banc).
As the Supreme Court has long recognized, plaintiffs need
not violate a law to challenge its constitutionality. See Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 163 (2014)
(“Nothing in this Court’s decisions requires a plaintiff who
wishes to challenge the constitutionality of a law to confess that
he will in fact violate that law.”). Instead, the law recognizes
standing to pursue pre-enforcement declaratory and injunctive
relief in at least two circumstances.
First, plaintiffs can allege “an intention to engage in a
course of conduct arguably affected with a constitutional
interest, but proscribed by a statute,” and demonstrate that
“there exists a credible threat of prosecution thereunder.”
Susan B. Anthony List, 573 U.S. at 159 (quoting Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979));
see Green v. Department of Justice, 54 F.4th 738, 744 (D.C.
Cir. 2022). In a “non-First Amendment preenforcement
challenge to a criminal statute that has not reached the court
through agency proceedings[,]” this court requires plaintiffs to
allege facts like “prior threats against them” that “indicat[e] an
especially high probability” that they will be targeted for
enforcement. Seegars v. Gonzales, 396 F.3d 1248, 1254–1255
(D.C. Cir. 2005); see also Navegar, 103 F.3d at 1001 (Plaintiffs
lacked standing to challenge portions of law that did not
“indicate[] any special priority placed upon preventing
[plaintiffs] from engaging in specified conduct.”). But cf.
Parker v. District of Columbia, 478 F.3d 370, 375 (D.C. Cir.
9
2007) (observing that “the Supreme Court [has] t[aken] a far
more relaxed stance on pre-enforcement challenges than
Navegar and Seegars permit”), aff’d sub nom., District of
Columbia v. Heller, 554 U.S. 570 (2008); Seegars, 396 F.3d at
1253 (“We cannot help noting that Navegar’s analysis is in
sharp tension with standard rules governing preenforcement
challenges to agency regulations[.]”); id. at 1254 (“There is
also tension between Navegar and our cases upholding
preenforcement review of First Amendment challenges to
criminal statutes.”).
Second, standing exists when “the law is aimed directly at
plaintiffs, who, if their interpretation of the statute is correct,
will have to take significant and costly compliance measures or
risk criminal prosecution.” Virginia v. American Booksellers
Ass’n, Inc., 484 U.S. 383, 392 (1988). For example, in Craig
v. Boren, 429 U.S. 190 (1976), the Supreme Court held that a
liquor seller had standing to challenge on equal protection
grounds a state law that barred the sale of 3.2 percent beer to
men under the age of 21 and women under the age of 18, id. at
192–193. The Court concluded that the challenged law was
“addressed directly to vendors such as” the plaintiff, and
required costly compliance measures: The plaintiff was
“obliged either to heed the statutory discrimination, thereby
incurring a direct economic injury through the constriction of
her buyers’ market, or to disobey the statutory command and
suffer * * * sanctions and perhaps loss of license.” Id. at 194
(internal quotation marks omitted).
The pistol owners have shown standing for their claims for
declaratory and injunctive relief against all defendants, and for
their damages claims against the District, based on the
pocketbook transportation-cost injuries that the Metro Ban
inflicts.
10
A
Because the pistol owners allege an ongoing pocketbook
injury that is the direct result of the law they challenge, they
have standing to bring this pre-enforcement suit for declaratory
and injunctive relief. Like the liquor vendor in Craig, and the
bookstore in American Booksellers, the pistol owners
challenge a law that is “addressed directly to” them, Craig, 429
U.S. at 194, and “aimed directly at” them, American
Booksellers, 484 U.S. at 392. They are licensed D.C. pistol
carriers who regularly ride the Metro system—precisely the
people whose conduct the Metro Ban regulates. And they wish
to carry their firearms on the Metro system—precisely the
conduct that the Metro Ban criminalizes.
To comply with the Metro Ban while exercising their
asserted Second Amendment rights, the pistol owners incur a
“paradigmatic concrete Article III injur[y]”: monetary harm.
Institutional Shareholder Servs., Inc. v. SEC, 142 F.4th 757,
765 (D.C. Cir. 2025); see also Tyler v. Hennepin County, 143
S. Ct. 1369, 1374 (2023) (Taxpayer plaintiff had standing
based on a “classic pocketbook injury[.]”). Because they
cannot carry their firearms on the Metro system without
violating District law, the pistol owners have had to resort to
alternative and more expensive modes of transit. See J.A. 69,
71, 73–75. They allege that they will continue to pay that price
for exercising their constitutional rights going forward. J.A.
69, 71, 73–75; see TransUnion, 594 U.S. at 435 (For plaintiffs
seeking equitable relief, “a material risk of future harm can
satisfy the concrete-harm requirement[.]”).
The Metro Ban, in other words, has achieved its aim:
forcing off of public transit individuals with the pistols they
have licenses to carry. At oral argument, counsel for
defendants conceded that “keep[ing] people with their guns off
11
Metro system transportation” is “exactly the purpose” of the
Metro Ban. Oral Arg. Tr. 18:8–17.
On this record, the pistol owners’ alleged ongoing out-of-
pocket transportation expenses constitute a concrete,
imminent, and recurring injury-in-fact that is caused directly
by the Metro Ban and is redressable by declaratory and
injunctive relief should they ultimately prevail on the merits
(which we assume for purposes of standing, McGahn, 968 F.3d
at 762). 2
B
The pistol owners also initially brought claims for
damages against the District, and against three individual
defendants—Attorney General Schwalb, Metropolitan Police
Department Chief Contee, and Metro Transit Police
Department Chief Anzallo—in their personal and official
capacities.
Below, the pistol owners abandoned their damages claims
against the three individual defendants in both their official and
personal capacities. See Angelo II, 2024 WL 3741401, at *12;
see also Pls.’ Mem. Opp’n to Mot. to Dismiss at 44, ECF
2
The district court held that the pistol owners’ claims against
Chief Anzallo in his official capacity failed “for the further reason
that he is not subject to suit in his official capacity under § 1983.”
Angelo II, 2024 WL 3741401, at *9 n.3. Because the pistol owners
have not appealed this ground for dismissal, and because the pistol
owners abandoned their damages claims against the individual
defendants, see Section II.B, infra, we affirm the district court’s
dismissal of all claims against Chief Anzallo. Accordingly, unless
otherwise indicated, any reference to “defendants” in this opinion
excludes Chief Anzallo.
12
No. 46 (“Defendants move to dismiss damage remedies with
respect to the individual defendants Anzallo, Contee and
Schwalb on various immunity theories. We agree that damage
remedies do not lie with respect to the individual defendants.”).
We therefore affirm the district court’s dismissal of those
claims.
The pistol owners have standing, though, to bring their
claim for damages against the District. They have suffered a
concrete economic injury, that injury flows from the Metro
Ban, and it would be redressed by a damages award if they were
to prevail in this litigation.
C
Defendants strain against these straightforward grounds
for standing by invoking the Navegar line of cases and Clapper
v. Amnesty International USA, 568 U.S. 398 (2013). But they
overread that precedent.
1
Defendants first argue that Navegar and its progeny
preclude the pistol owners from establishing standing based on
economic injury. See Oral Arg. Tr. 13:23–14:7; see also
Angelo II, 2024 WL 3741401, at *11. Not so.
In Navegar, gun manufacturers brought a constitutional
challenge to the Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796. Navegar,
103 F.3d at 996. They sought a declaratory judgment that
several of the law’s provisions were “outside of Congress’
enumerated powers, unconstitutional Bills of Attainder, and
vague in violation of the Due Process Clause of the Fifth
Amendment[.]” Id. This court held that the manufacturers had
13
standing to challenge provisions of the act that “in effect
single[d] out the appellants as its intended targets, by
prohibiting weapons that only the appellants make.” Id. at
1000.
At the same time, this court held that the manufacturers did
not have standing to challenge broader prohibitions on
“weapons and accessories sharing certain features[.]”
Navegar, 103 F.3d at 1001. The court explained that those
prohibitions covered a “great number of weapon manufacturers
[and] distributors[.]” Id. Although the government had
“demonstrated its interest in enforcing the Act generally,” this
court concluded that “nothing * * * indicate[d] any special
priority placed upon preventing [the plaintiffs themselves]
from engaging in specified conduct.” Id. Without “a genuine
threat of enforcement[,]” this court held, the manufacturers had
failed to establish an injury in fact sufficient to support
standing. Id.
A subsequent line of cases has applied Navegar to Second
Amendment pre-enforcement challenges. See Seegars, 396
F.3d at 1255 (holding that individual gun owners did not have
pre-enforcement standing in a Second Amendment challenge
to the District’s limits on firearm possession when they did not
allege any facts “indicating an especially high probability of
enforcement against them”); Parker, 478 F.3d at 375 (holding
that D.C. residents failed to establish pre-enforcement standing
in Second Amendment challenge to D.C. restrictions on gun
possession when the District had never demonstrated “a
‘special priority’ for preventing these appellants from violating
the gun laws, or a particular interest in punishing them for
having done so”); cf. Ord, 587 F.3d at 1142 (holding that prior
arrest warrant for carrying a firearm without a license could
support pre-enforcement standing).
14
That precedent controls our analysis of pre-enforcement
standing based on the pistol owners’ claims of injury from the
risk of imminent prosecution. See New York-New York, LLC
v. NLRB, 676 F.3d 193, 194–195 (D.C. Cir. 2012) (“We are of
course bound by our prior panel decision[s.]”).
We have never held, however, that the Navegar line of
cases prevents plaintiffs from establishing standing based on
other injuries, including economic loss caused by compliance
with an allegedly unconstitutional law. We are aware of no
precedent from this court or the Supreme Court holding that an
individually suffered economic injury is an insufficient basis
for standing unless the defendant has made causing such
expense to the specific plaintiff a “special priority[.]” Parker,
478 F.3d at 375; Navegar, 103 F.3d at 1001.
Defendants argue that Navegar implicitly forecloses relief
for economic harm because the plaintiffs in that case asserted
an economic loss in their complaint and briefing. Oral Arg. Tr.
13:17–14:7; D.C. Br. 24; Br. of Appellant at 20, Navegar, 103
F.3d 994 (No. 96-5088), 1996 WL 34482774, at *20; Compl.
¶¶ 17–22, Navegar, Inc. v. United States, 914 F. Supp. 632
(D.D.C. 1996) (No. 95-cv-0550).
But our holding in Navegar contains no discussion at all
of economic harm. And distinct issues that merely appear in
the briefing of a case but are neither decided nor discussed in
our decisions carry no precedential weight. See RJR Nabisco,
Inc. v. European Community, 579 U.S. 325, 350 n.10 (2016)
(explaining that an issue present in a prior case does not control
when the Court did not address it); Jesner v. Arab Bank, PLC,
584 U.S. 241, 291 n.4 (2018) (Gorsuch, J., concurring in part
and concurring in the judgment) (explaining that issue briefed
by amici in a prior case but not addressed in the opinion was
not binding because “questions that ‘merely lurk in the record
15
are not resolved, and no resolution of them may be inferred’”)
(quoting Illinois State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 183 (1979)).
What does bind this panel, though, are the countless
decisions from the Supreme Court and this court holding both
(1) that monetary harm commonly constitutes a concrete and
cognizable injury in fact, Institutional Shareholder Servs., 142
F.4th at 765, Diamond Alternative Energy, LLC v. EPA, 145 S.
Ct. 2121, 2133 (2025) (“Monetary costs are of course an
injury.”) (quoting United States v. Texas, 142 S. Ct. 1964, 1970
(2023)), and (2) that regulated individuals generally “ha[ve]
standing to challenge an allegedly illegal statute or rule under
which [they are] regulated[,]” State Nat’l Bank of Big Spring v.
Lew, 795 F.3d 48, 53 (D.C. Cir. 2015) (citing Lujan, 504 U.S.
at 560–561); see American Booksellers, 484 U.S. at 392; Craig,
429 U.S. at 194; Corbett v. TSA, 19 F.4th 478, 483 (D.C. Cir.
2021) (“[A]s a directly regulated party,” a frequent flier
“plainly ha[d] standing” to challenge a TSA mask mandate.);
Oral Arg. Tr. 20:2–12 (Defendants agreeing that “[i]f this were
not a criminal law but instead were a regulatory decision and
they fell within the class of regulated parties and they wanted
to bring a pre-enforcement challenge to agency regulation that
has cost and is going to cost them much more money, * * * they
have standing under our precedent for standing [in] * * *
agency regulatory cases”); see also Federal Election Comm’n
v. Cruz, 142 S. Ct. 1638, 1646 (2022) (holding that a Senator
had pre-enforcement standing to challenge restrictions on
candidate loan repayment based on a “$10,000 pocketbook
harm”); cf. State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d
474, 480 (D.C. Cir. 1986) (“[A]n agency enforcement policy
may impose the requisite hardship [for ripeness purposes] even
before the policy is implemented if, for example, it would
reasonably prompt a regulated industry, unwilling to risk
16
substantial penalties by defying the policy, to undertake costly
compliance measures.”).
Those lines of standing precedent provide a sufficient
basis for the pistol owners’ standing in this case.
2
Defendants’ reliance on Clapper is also misplaced. See
D.C. Br. 24–25; Oral Arg. Tr. 17:6–18:7.
The plaintiffs in Clapper were a group of U.S.-based
attorneys and human rights organizations (“Advocates”). 568
U.S. at 406. They filed suit to enjoin a provision of the Foreign
Intelligence Surveillance Act, 50 U.S.C. § 1881a (2006 ed.,
Supp. V) (“FISA”), that authorized government surveillance of
certain individuals outside the United States. Clapper, 568
U.S. at 401. The Advocates laid out two theories of standing.
First, they argued that the government would likely use the
challenged law to spy on their sensitive communications with
contacts abroad. See id. at 406. Second, the Advocates argued
that they had taken “costly and burdensome measures” to
preserve the confidentiality of their own communications from
such surveillance. See id. at 402. 3
The Supreme Court rejected both bases for standing.
3
The Advocates had alleged that the law would require them
“to develop new protocols for dealing with sensitive information, to
travel long distances to collect information that could otherwise have
been gathered by telephone or email, and in some circumstances to
forgo particularly sensitive communications altogether.” Compl.
¶ 49, Amnesty Int’l v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y.
2009) (No. 8-cv-06259), ECF No. 1.
17
With respect to the Advocates’ asserted injury based on
having their conversations spied on, the Court explained that
this theory of standing “rest[ed] on their highly speculative
fear” that:
(1) the Government will decide to target the
communications of non-U.S. persons with whom they
communicate; (2) in doing so, the Government will
choose to invoke its authority under [the challenged
provision] rather than utilizing another method of
surveillance; (3) the Article III judges who serve on
the Foreign Intelligence Surveillance Court will
conclude that the Government's proposed surveillance
procedures satisfy [the challenged provision’s] many
safeguards and are consistent with the Fourth
Amendment; (4) the Government will succeed in
intercepting the communications of [the Advocates’]
contacts; and (5) [the Advocates] will be parties to the
particular communications that the Government
intercepts.
Clapper, 568 U.S. at 410.
That “attenuated chain of inferences,” the Supreme Court
held, was too frail a reed on which to find that the asserted risk
of injury based on government surveillance was “certainly
impending” or “fairly traceable” to the challenged statutory
provision. Clapper, 568 U.S. at 414 & n.5.
The causation prong of standing put the kibosh on the
Advocates’ alternative financial-outlay theory of standing. The
Supreme Court held that the same long chain of assumptions
broke the causal connection between governmental action and
the Advocates’ expenses. See Clapper, 568 U.S. at 416 (“Any
ongoing injuries that respondents are suffering are not fairly
18
traceable to” the challenged law.). Those expenses were
“simply the product of their fear of surveillance,” and so they
did not trace back to the statute. Id. at 417. The Court added
that, even before the passage of the statutory provision at issue,
the Advocates “had a similar incentive to engage in many of
the countermeasures that they are now taking” because FISA
already separately authorized various forms of surveillance that
the Advocates had not challenged. Id.
In sum, the Supreme Court concluded that the Advocates’
“self-inflicted injuries [were] not fairly traceable to the
Government’s purported activities * * *, and their subjective
fear of surveillance [did] not give rise to standing.” Clapper,
568 U.S. at 418.
This case is quite different. To start, the pistol owners are
the direct target of the Metro Ban, not individuals who might
incidentally be caught up in the government’s oversight of third
parties. It is an Article III commonplace to recognize that those
who are directly and adversely regulated by a law have
standing to challenge that law based on the injuries it inflicts.
See, e.g., Cruz, 142 S. Ct. at 1647 (Clapper did not defeat
standing when plaintiffs’ harm was “directly inflicted by the
FEC’s threatened enforcement of the provisions they * * *
challenge[d].”); Corbett, 19 F.4th at 484; State Nat’l Bank, 795
F.3d at 53.
Defendants nonetheless argue that the pistol owners’
increased transportation costs ultimately flow from their “fear
of hypothetical crimes not yet committed by hypothetical
criminals[,]” and thus are not fairly traceable to the Metro Ban.
D.C. Br. 24 (internal quotation marks omitted) (citing Angelo
II, 2024 WL 3741401, at *10).
19
That characterization blinks away the pistol owners’
central injury. Keeping in mind that we must assume at the
standing stage that the pistol owners are right on the
constitutional merits, recall that their principal injury is that
they wish to be able to exercise their Second Amendment right
to carry their pistols while riding on the Metro system, rather
than to be singularly excluded from public transportation and
forced to bear additional monetary costs because of their
constitutional exercise. Whether their invocation of that
constitutional right is subjectively motivated by fear or a desire
for convenient or cheaper transportation options, and whether
their fear is well-founded or not, is beside the point.
Said another way, unlike the Advocates in Clapper, the
pistol owners do not simply “claim[] that they experienced a
‘chilling effect’ that resulted from a governmental policy that
does not regulate, constrain, or compel any action on their
part.” 568 U.S. at 419. Far from it—their conduct is the
specific and direct criminalized object of the Metro Ban, and
their exclusion from the Metro system while exercising an
alleged constitutional right is the law’s very purpose.
The District suggested at oral argument that Clapper
requires us to import our Navegar precedent into economic-
injury analysis. See Oral Arg. Tr. 17:22–18:7. Not at all. The
problem for the Advocates in Clapper was that allowing them
to establish standing based on “costs they incurred in response
to a speculative threat would be tantamount to accepting a
repackaged version of [their] first failed theory of standing.”
Clapper, 568 U.S. at 416. Both theories of injury relied on
precisely the same long chain of speculative inferences—the
Advocates feared government surveillance, and they took
costly measures to mitigate that fear even though the
challenged law did not regulate the Advocates, would not likely
capture their conversations, and did not direct a change in their
20
behavior. See id.; see also Food & Water Watch, Inc. v.
Vilsack, 808 F.3d 905, 914–915, 918–919 (D.C. Cir. 2015)
(holding that plaintiffs lacked standing to challenge chicken
manufacturing regulation when plaintiffs’ alleged increased
risk of foodborne illness and their costs of avoiding regulated
chicken both rested on the same speculative fear).
Again, this case is the opposite because the Metro Ban
directly regulates the pistol owners and its central purpose is to
compel a costly change in behavior—to get lawful concealed
pistol carriers off of the Metro system, requiring them to rely
upon privately financed forms of transportation. That is a
monetary injury that those choosing not to exercise their
Second Amendment rights do not incur.
That is also why this suit stands apart from precedent, like
the Navegar line of cases, that concerns pre-enforcement
standing based solely on a fear of prosecution. In that setting,
a plaintiff attempts to establish an Article III injury based on a
threat of prosecution that admittedly will never materialize
because she does not intend to break the law. Seegars, 396
F.3d at 1251. When that threat of prosecution supplies the
plaintiff’s only injury in fact, we require it to be credible and
imminent. See id.
In contrast, already-incurred and ongoing monetary harm
readily satisfies the injury-in-fact requirement. Institutional
Shareholder Servs., 142 F.4th at 765. The relevant question,
instead, becomes whether the law caused plaintiff’s
compliance costs. Cf. Carpenters Indus. Council v. Zinke, 854
F.3d 1, 5–6 (D.C. Cir. 2017) (Because “[e]conomic harm to a
business clearly constitutes an injury-in-fact[,] * * *
[c]ausation is the more difficult question when considering
allegations of future economic harm arising from government
action[.]”).
21
To be sure, causation may pose a daunting hurdle when,
for instance, it is not clear whether the challenged law
proscribes a plaintiff’s desired conduct. Cf. generally
American Library Ass’n v. Barr, 956 F.2d 1178, 1192 (D.C.
Cir. 1992) (A prohibition on child pornography did not impose
a “chilling effect” on plaintiff organizations when “there [was]
nothing in the record, no allegation in the complaint and no
affidavit, indicating that they or their members produce images
* * * that could possibly fit within the statute’s description.”);
Hemp Indus. Ass’n v. Drug Enforcement Admin., 36 F.4th 278,
292–293 (D.C. Cir. 2022) (“Broad-based market effects
stemming from regulatory uncertainty are quintessentially
conjectural, and it is difficult to imagine an agency action that
would not confer standing under this theory.”) (formatting
modified).
But this case does not demand any delicate line-drawing.
Again, as both parties agree, the very purpose and designed
regulatory effect of the Metro Ban is to bar the pistol owners
from carrying their firearms on the Metro system. So the costs
they incur in complying with the law are fairly traceable to the
Ban.
III
For the foregoing reasons, we reverse the district court’s
dismissal of the pistol owners’ claims for declaratory and
injunctive relief against all defendants, as well as their claims
for damages against the District. We affirm the district court’s
dismissal of the pistol owners’ damages claims against the
individual defendants, and we remand for further proceedings
consistent with this opinion.