Ord v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2009 Decided December 4, 2009

No. 08-7094

ROBERT L. ORD,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

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.

2

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

Opinion for the Court filed by Circuit Judge TATEL.

Opinion dissenting in part filed by Circuit Judge BROWN.

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.

I.

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

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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

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

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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

5

States, 103 F.3d 994, 998 (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.

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.

II.

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

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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 (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

(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 (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 (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 (internal quotation marks and

alterations omitted).

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Where a plaintiff has yet to face prosecution under a

statute he seeks to challenge, the Supreme Court, in Babbitt v.

United Farm Workers, requires that he establish Article III

standing by (1) “alleg[ing] an intention to engage in a course

of conduct arguably affected with a constitutional interest, but

proscribed by a statute,” and (2) demonstrating that “there

exists a credible threat of prosecution thereunder.” 442 U.S.

289, 298 (1973). In Navegar, Inc. v. United States, however,

we held that plaintiffs must show more than a “credible

threat” of prosecution: they must demonstrate an “imminent”

threat. 103 F.3d at 999; see also Parker v. District of

Columbia, 478 F.3d 370, 375 (D.C. Cir. 2007), aff’d in part

sub nom. District of Columbia v. Heller, 128 S. Ct. 2783

(2008); Seegars v. Gonzales, 396 F.3d 1248, 1255 (D.C. Cir.

2005). To prove that a threat is both credible and imminent,

we require plaintiffs 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.” Parker, 478 F.3d at 375.

In Navegar, we considered gun manufacturers’

preenforcement challenges to provisions of the Violent Crime

Control and Law Enforcement Act of 1994, which barred

manufacturing and possessing semiautomatic assault

weapons. 18 U.S.C. §§ 921–924 (1994). Certain provisions

of the statute banned specific weapons by name. Navegar,

103 F.3d at 997. Observing that this specificity “show[ed]

that the law place[d] a high priority” on prosecuting the

companies that manufactured the named weapons, we found

that those companies had standing to challenge the provisions

of the statute that banned their products. Id. at 1000. By

contrast, we found that no plaintiff had standing to challenge

other parts of the statute prohibiting weapons not by name,

but by general characteristics. Given that the statute

8

described those weapons only in general terms, we concluded

that their manufacturers had failed to show that the

government placed a special priority on enforcing the law

against them. Id. at 1001–02.

Acknowledging that our case law demands more than

does United Farm Workers, we have nonetheless continued to

require plaintiffs to demonstrate that enforcing the law against

them represents a “‘special priority’ for the government.” See

Seegars, 396 F.3d at 1255 (quoting Navegar, 103 F.3d at

1001). For example, in Seegars we held that where plaintiffs

alleged nothing more than that but for the District of

Columbia’s gun laws they would have obtained and registered

pistols to keep and carry in their homes, they “ha[d] not

shown a threat of prosecution reaching the level of imminence

required by Navegar.” Id. “[N]othing in the record,” we

explained, demonstrated that plaintiffs had been “personally

threatened with prosecution” or that their prosecution had

“any special priority for the government.” Id. (internal

quotation marks omitted). Similarly, in Parker v. District of

Columbia, we felt “obliged to look for an allegation that

appellants . . . ha[d] been singled out or uniquely targeted by

the D.C. government for prosecution.” 478 F.3d at 375. We

were unable to find such an allegation because, with one

exception, the plaintiffs claimed only that (1) they wished to

own prohibited firearms and (2) the District of Columbia had

declared its intention to prosecute all violators. We found

those threats insufficient given that they expressed no

“‘special priority’ for preventing these [plaintiffs] from

violating the gun laws, or a particular interest in punishing

them for having done so.” Id. Instead, the District of

Columbia merely expressed “a sentiment ubiquitous among

stable governments the world over, to wit, scofflaws will be

punished.” Id.

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Ord argues that he has satisfied our preenforcement

standing requirements because the previous warrant for his

arrest demonstrates that enforcing the law against him is a

“special priority” of the District of Columbia. Challenging

the district court’s conclusion that the warrant’s nullification

was “strong evidence that the District [did] not presently

intend to prosecute” him, Ord, 573 F. Supp. 2d at 94–95, Ord

argues that D.C.’s only motivation for quashing the warrant

was to prevent judicial review of his claimed exemption from

the District’s firearms laws. According to Ord, the District of

Columbia’s bad faith in securing and then belatedly quashing

the warrant, together with the MPD’s determination to drive

his company from the District of Columbia, proves that he

faces a credible and imminent threat of future prosecution.

Ord also claims that the MPD memorandum supports his fear

of future prosecution, emphasizing its statement that

“SCOP[s] who [are] not covered by 18 U.S.C. § 926B and

carr[y] firearm[s] in the District of Columbia will be subject

to all relevant criminal penalties.” Mem. of Victor Brito.

The District of Columbia’s position with regard to Ord’s

standing has evolved during this litigation. In the district

court, it “ma[de] much ado about the fact that the Office of

the Attorney General declared a nolle prosequi of the

Information in support of the warrant” and insisted that this

action negated any inference of a credible and imminent

threat of future prosecution. Ord, 573 F. Supp. 2d at 93. On

appeal, however, the District of Columbia now agrees with

Ord that “his showing regarding the likelihood that [future]

prosecution [will] occur [is] sufficient” because “Ord’s

allegations that the District applied for an arrest warrant

against him [are] sufficient to show . . . a special priority.”

Appellee’s Br. 24.

10

Given the District of Columbia’s concession, the

previous arrest warrant, Ord’s claims of bad faith, and the

arrests of Falken employees, Ord’s allegations support his

standing under Navegar. Indeed, Ord’s position is quite

similar to that of the Navegar plaintiffs whose products the

statute banned by name. Just as the statute’s identification of

certain weapons by name evidenced “a high priority” on

prosecuting the companies that produced those weapons, the

warrant for Ord’s arrest reveals that the District of Columbia

has already targeted him for prosecution, and its concession

signals that it expects to prosecute him in the future. In

addition, Ord’s allegation that the MPD remains determined

to drive his company from the city suggests that the District

of Columbia places a special priority on enforcing the laws

against him.

Indeed, Ord has alleged a more genuine and imminent

threat of prosecution than did the Navegar, Seegars, and

Parker plaintiffs whose standing we rejected. In Navegar, the

manufacturers whose weapons were unnamed by the statute

pointed only to the high-profile nature of their business, the

publicity surrounding enactment of the law, visits from ATF

agents, and a letter they all received from ATF describing the

newly enacted statute. See Navegar, 103 F.3d at 1001. The

Seegars and Parker plaintiffs showed even less: the Seegars

plaintiffs pointed to nothing more than the firearms laws and

alleged that the threat of prosecution discouraged them from

keeping guns within the District of Columbia, see 396 F.3d at

1255; the Parker plaintiffs (again, with one exception) also

pointed to the existence of the gun laws and relied on general

threats of their enforcement, see 478 F.3d at 375. Here, by

contrast, the previous arrest warrant, the District of

Columbia’s appellate concession, the arrests of Falken

employees, and Ord’s allegations of continuing bad faith all

demonstrate the District of Columbia’s special priority on

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enforcing the law against him. Thus, even without relying on

the MPD memorandum—the significance of which the parties

dispute—we conclude that Ord has sufficiently shown a

credible and imminent threat of prosecution.

The dissent faults us for “read[ing] ‘imminence’ out of

our precedents,” Dissenting Op. at 10, and contends that a

special law enforcement priority constitutes “simply one

factor” in the imminence analysis, id. at 9. In Navegar,

however, we chiefly relied on the fact that the statute

expressly targeted particular weapons manufacturers, pointing

out that “[t]he visits by the ATF agents to appellants’ places

of business merely provide[d] a bit of additional support for a

fear of prosecution already firmly grounded in the language

of the Act itself.” 103 F.3d at 1000 (emphasis added).

Following Navegar’s lead, Seegars and Parker looked only

for a “special priority” of prosecution. See Seegars, 396 F.3d

1255; Parker, 478 F.3d at 375. Thus, our case law makes

clear that such a special priority is sufficient to establish

imminence.

Our dissenting colleague, stating that Ord “faces a

certainty of no prosecution” because he has decided to avoid

entering D.C. with a firearm, argues more generally that “[a]

prosecution is unlikely to be imminent if individuals refrain

from violating the law out of fear of prosecution.” Dissenting

Op. at 10, 11. Navegar, however, demonstrates that

imminence is not defeated simply because the plaintiff

complies with the challenged statute. There, we

acknowledged that plaintiffs had ceased manufacturing the

banned weapons, Navegar, 103 F.3d at 997, but ruled that

such compliance did not extinguish their preenforcement

standing. Rather, “[i]t is . . . th[e] threat of prosecution which

creates the ‘injury in fact’ required under standing doctrine,

for the threat forces appellants to forego the manufacture and

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transfer of the weapons specified in the Act.” Id. at 1001. So

too here. Ord’s injury stems from his inability to travel to

D.C. and carry on his security business here while armed

without fear of prosecution. That injury is imminent because

the District of Columbia has made clear its specific intention

to prosecute him.

The District of Columbia insists that Ord also lacks

standing because he has failed to satisfy United Farm

Workers’ first requirement: that a preenforcement plaintiff

“allege[] an intention to engage in a course of conduct . . .

proscribed by a statute.” United Farm Workers, 442 U.S. at

298. To be sure, as the District of Columbia emphasizes, Ord

never alleges in so many words that he intends to enter the

District of Columbia while armed. But at this stage of the

litigation, we must make all reasonable inferences in Ord’s

favor, see supra at 6, and viewed through that lens, Ord’s

complaint and affidavit can only be understood to mean that if

the threat of arrest is removed, he intends to travel to D.C.

while armed to engage in his security business. See Seegars,

396 F.3d at 1251 (plaintiff need not express an unconditional

intent to engage in the prohibited behavior regardless of

whether the statute is invalidated). Specifically, Ord alleges

in his affidavit that Falken Industries possesses an MPD

license and that it had several contracts to provide armed

security services in the District of Columbia until forced to

abandon them once D.C. issued the warrant for his arrest and

actually arrested Falken employees. Although Ord’s

abandonment of the contracts could suggest that he no longer

plans to enter the District while armed, his affidavit indicates

just the opposite:

While I was once able to enter the District of

Columbia with my firearm as a police officer, I can

no longer do so for fear of my unlawful arrest. It is

13

impossible for me to go from one location in

Virginia where I need my firearm to perform my

duties to another location in the District of

Columbia. I have no means to secure and leave my

gun somewhere when I enter the District of

Columbia.

Appellant’s Aff. ¶ 30. Moreover, Ord’s request for relief—a

declaratory judgment and an injunction prohibiting the

District of Columbia from enforcing its firearms laws against

him—makes sense only if he actually intends to return to D.C.

while armed to service his clients. We thus conclude that Ord

has standing to bring his preenforcement claim.

Our dissenting colleague, who raises several interesting

points, would en banc this case “sua sponte and overrule

Navegar.” Dissenting Op. at 1. But because we have

concluded—without “strain[ing],” id.—that Ord has standing

under Navegar, this is simply not a case of “exceptional

importance” warranting the attention of the full court, Fed. R.

App. P. 35(a)(2). Nor, for the same reason, would an Irons

footnote be appropriate. See D.C. Cir., Policy Statement on

En Banc Endorsement of Panel Decisions 2 (Jan. 17, 1996)

(“The panel also should be satisfied that deciding the question

is necessary to an adequate disposition of the case.”

(emphasis added)); see also LaShawn v. Barry, 87 F.3d 1389,

1395 (D.C. Cir. 1996) (en banc). We thus turn to Ord’s

standing to bring his claim for damages flowing from the

issuance of the warrant.

Damages Claim

This issue is easy. The District does not challenge Ord’s

standing to bring his damages claim, and for good reason. To

begin with, Ord has plainly alleged injury in fact. According

to his complaint, an MPD officer caused a warrant to issue for

14

Ord’s arrest on the basis of a false affidavit and without

probable cause, forcing him to abandon lucrative armed

security contracts within the District of Columbia. Ord has

also sufficiently alleged causation: the arrest warrant

prevented him from entering D.C., which in turn required him

to abandon the contracts. Finally, an award of damages

would obviously redress his injuries.

III.

This brings us to the District of Columbia’s argument that

Ord’s preenforcement and damages claims are too

insubstantial to invoke federal court jurisdiction. Federal

courts are “without power to entertain claims otherwise within

their jurisdiction if [the claims] are ‘so attenuated and

unsubstantial as to be absolutely devoid of merit.’” Hagans v.

Lavine, 415 U.S. 528, 536 (1974) (quoting Newburyport

Water Co. v. Newburyport, 193 U.S. 561, 579 (1904)). To

warrant dismissal for insubstantiality, “claims [must] be

flimsier than ‘doubtful or questionable’—they must be

‘essentially fictitious.’” Best v. Kelly, 39 F.3d 328, 330 (D.C.

Cir. 1994) (quoting Hagans, 415 U.S. at 536–37) (finding

claim sufficiently substantial where plaintiffs had not

“suggested any bizarre conspiracy theories, any fantastic

government manipulations of their will or mind, any sort of

supernatural intervention”). Although we have said that

“[t]he Rule 12(b)(1) ‘substantiality’ doctrine is, as a general

matter, reserved for complaints resting on truly fanciful

factual allegations,” id. at 331 n.5, a legal claim may be so

insubstantial as to deprive federal courts of jurisdiction if

“prior decisions inescapably render the claims frivolous.”

Hagans, 415 U.S. at 538. That said, “previous decisions that

merely render claims of doubtful or questionable merit do not

render them insubstantial.” Id. Thus, to qualify as

insubstantial, a claim’s “unsoundness [must] so clearly

result[] from the previous decisions of [the Supreme Court] as

15

to foreclose the subject and leave no room for the inference

that the question sought to be raised can be the subject of

controversy.” Ex parte Poresky, 290 U.S. 30, 32 (1933)

(internal quotation marks omitted). The substantiality inquiry

is, however, a separate question from whether a complaint is

subject to dismissal under Federal Rule of Civil Procedure

12(b)(6) for failing to state a claim on which relief may be

granted. See, e.g., Hagans, 415 U.S. at 542; Bell v. Hood, 327

U.S. 678, 682 (1946); Best, 39 F.3d at 331 & n.5.

“Jurisdiction, therefore, is not defeated . . . by the possibility

that the averments might fail to state a cause of action on

which petitioners could actually recover.” Bell, 327 U.S. at

682.

Preenforcement Challenge

The District of Columbia contends that Ord’s

preenforcement challenge is insubstantial because “under

binding precedent, Ord has a Fourth Amendment claim as to a

future arrest only if the invalidity of such an arrest is

obvious.” Appellee’s Br. 12. In support, the District of

Columbia relies on Michigan v. DeFillippo, 443 U.S. 31

(1979), in which the Supreme Court held that an arrest for

violating an ordinance later found to be unconstitutionally

vague did not run afoul of the Fourth Amendment. The

DeFillippo court reasoned that probable cause existed

because, at the time of the arrest, the officer had a factual

basis for concluding that the arrestee had violated the

ordinance and the officer was not “required to anticipate that a

court would later hold the ordinance unconstitutional.” Id. at

37–38. Similarly, in Barwood, Inc. v. District of Columbia,

202 F.3d 290, 294 (D.C. Cir. 2000), also relied on by the

District, we concluded that arrests of taxicab drivers for

violating an allegedly invalid D.C. law would not necessarily

contravene the Fourth Amendment. The District of Columbia

takes DeFillippo and Barwood to mean that “the mere

16

possibility that a court would hold as a matter of law” that

Ord is exempt from the District’s firearms laws “clearly

should not negate probable cause.” Appellee’s Br. 15. Thus,

according to the District of Columbia, DeFillippo and

Barwood make clear that Ord’s Fourth Amendment claim

cannot succeed and thus “inescapably render [it] frivolous.”

Hagans, 415 U.S. at 538.

We disagree that DeFillippo and Barwood foreclose all

debate on Ord’s allegations. Neither decision addresses the

precise question Ord raises: whether a warrant or arrest would

lack probable cause where the responsible officer, knowing

that the arrestee is exempt from the criminal statute,

nonetheless files an affidavit in bad faith—an allegation we

must take as true at this stage of the litigation. Indeed, unlike

the issues addressed in DeFillipo and Barwood, the question

here bears directly on the existence of probable cause, for it

requires an inquiry into whether “facts and circumstances

within the officer’s knowledge [could be] sufficient to warrant

a prudent person, or one of reasonable caution, in believing,

in the circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.” DeFillipo,

443 U.S. at 37. Moreover, even were we to agree with the

District of Columbia that Ord’s allegations ultimately fail to

state a Fourth Amendment claim—a question we leave for the

district court to resolve in the first instance—that would

provide no basis for finding that Ord’s claim is so

insubstantial as to deprive the district court of jurisdiction.

Damages Claim

We are equally unpersuaded by the District of

Columbia’s argument that Ord’s claim for damages caused by

the warrant is so insubstantial as to deprive the district court

of jurisdiction. According to the District of Columbia, Ord’s

claim is frivolous because he was never arrested. The Fourth

17

Amendment, D.C. insists, protects only against unreasonable

“searches” and “seizures,” and “there is no seizure without

actual submission.” Brendlin v. California, 551 U.S. 249, 254

(2007).

To be sure, the Supreme Court often speaks of the Fourth

Amendment exclusively in terms of “searches” and

“seizures,” see, e.g., County of Sacramento v. Lewis, 523 U.S.

833, 843 (1998), but none of those cases considered a claim,

like the one at issue here, which alleges that the issuance of a

warrant without probable cause may itself deprive a person of

his liberty in violation of the Fourth Amendment. True, Ord

may not have been seized in the traditional sense, but the

arrest warrant effectively exiled him from the District of

Columbia, thus restricting his ability to travel and causing him

substantial injury. Cf. Albright v. Oliver, 510 U.S. 266, 277–

79 (1994) (Ginsburg, J., concurring) (suggesting that a

criminal defendant facing pending prosecution remains

“continually seized” after release from custody due, in part, to

the travel restrictions and reputational and employment

consequences that often flow from a criminal prosecution).

Because neither Supreme Court nor D.C. Circuit case law

forecloses the possibility that Ord’s allegations raise a

constitutional issue, his damages claim is sufficiently

substantial to confer federal jurisdiction. Although we leave

open the question whether injury from the issuance of a

warrant without arrest is cognizable under the Fourth

Amendment, we are sure that Ord’s claim is neither

“fictitious,” “fantastic,” nor “fanciful,” and thus that the

district court has jurisdiction to entertain it. Best, 39 F.3d at

330–31 (internal quotation marks omitted).

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IV.

For the foregoing reasons, we reverse the dismissal of

Ord’s claims and remand to the district court for further

proceedings consistent with this opinion.

So ordered.

BROWN, Circuit Judge, dissenting in part: For more than

a decade, this circuit has offered a wary allegiance to the

imminence standard, first articulated in Navegar, Inc. v.

United States, 103 F.3d 994, 998 (D.C. Cir. 1997). Today’s

opinion labors to extend that line of cases, barring

preenforcement claims for declaratory relief unless the

plaintiff can show a threat of imminent prosecution, and thus

denying access to Article III courts to District of Columbia

litigants seeking vindication of civil rights claims—access

they would have under applicable Supreme Court precedent.

Whether Ord’s allegations meet Navegar’s stringent standard

is a close question, but this controversy demonstrates why

litigants should not be required to jump through such hoops to

get past the courthouse door. Consequently, while I agree

Ord has standing to bring his claim for damages under 42

U.S.C. § 1983, and agree his claims are not so insubstantial as

to deprive the federal courts of jurisdiction over them, I do

not think we can or should strain to fit this case within

Navegar’s standard based on the government’s belated

concession. I do think the en banc court can and should

rehear this appeal sua sponte and overrule Navegar.

According to Ord’s complaint and affidavit, his security

firm, Falken Industries, is licensed by the Metropolitan Police

Department (MPD). Aff. ¶ 10. Using information Ord

voluntarily provided to the MPD, the MPD and the D.C.

Office of the Attorney General (OAG) arrested and jailed

Ord’s employees in D.C. and obtained a warrant for Ord’s

arrest. Compl. ¶ 19; Aff. ¶¶ 16–18, 20. MPD officers used

the ruse of asking Ord to pick up his employee’s vehicle to try

to lure him back into D.C. Aff. ¶ 19. When that failed, they

staked out Falken’s Virginia office. Id. ¶¶ 24, 26. Ord had

also seen a memorandum the MPD sent to its Reserve Corps

Members warning them that Special Conservators of the

Peace who were not government “employee[s]” under the

2

Law Enforcement Officers Safety Act of 2004 (LEOSA), 18

U.S.C. § 926B(c), would be subject to all relevant criminal

penalties for violating D.C.’s firearms laws. Compl. ¶ 18.

Thus, Ord effectively was exiled from D.C. by his fear of

being prosecuted if he ever returned. Aff. ¶ 30.

Under Supreme Court doctrine, these facts would be

more than sufficient to establish Ord’s standing under Article

III to bring a claim under the Declaratory Judgment Act

(DJA), 28 U.S.C. § 2201. As the Supreme Court repeatedly

has confirmed, “where threatened action by government is

concerned, we do not require a plaintiff to expose himself to

liability before bringing suit to challenge the basis for the

threat . . . . The plaintiff’s own action (or inaction) in failing

to violate the law eliminates the imminent threat of

prosecution, but . . . does not eliminate Article III

jurisdiction.” MedImmune, Inc. v. Genentech, Inc., 549 U.S.

118, 128–29 (2007) (emphasis omitted). Thus, the District’s

decision to declare a nolle prosequi, and thereby to eliminate

the threat of imminent prosecution, would be no impediment

to Ord’s standing under Supreme Court standards. Navegar

turns this easy case into a close call; and worse, it makes

Ord’s access to federal court depend on the government’s

litigation strategy.

There are, of course, sensible constraints on litigants’

access to federal courts. Even in suits seeking declaratory or

injunctive relief, federal courts have jurisdiction only if there

exists an actual case or controversy. U.S. CONST. art. III, § 2.

These “constitutional boundaries” are “measure[d] through

the application of standing, mootness, and ripeness

doctrines.” Worth v. Jackson, 451 F.3d 854, 857 (D.C. Cir.

2006). The doctrine at issue here, standing, requires the

plaintiff to establish an injury-in-fact that is fairly traceable to

the challenged conduct and that will likely be redressed by a

3

favorable decision on the merits. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–61 (1992). The injury, in turn,

must be “distinct and palpable,” not “abstract,” “conjectural,”

or “hypothetical.” Allen v. Wright, 468 U.S. 737, 751 (1984)

(internal quotation marks omitted). And even when these

constitutional criteria are met, standing may be denied on

prudential grounds where, for example, the plaintiff seeks to

raise another person’s legal rights or seeks to adjudicate a

mere generalized grievance. See Elk Grove Unified Sch. Dist.

v. Newdow, 542 U.S. 1, 12 (2004). These limitations ensure

federal courts are not “‘called upon to decide abstract

questions of wide public significance even though other

governmental institutions may be more competent to address

the questions and even though judicial intervention may be

unnecessary to protect individual rights.’” Id. (quoting Warth

v. Seldin, 422 U.S. 490, 500 (1975)). But these limitations do

not exist to give law enforcement agencies carte blanche to

violate individual rights.

There is nothing unique about suits brought under the

DJA that requires a special jurisdictional analysis. See

Franchise Tax Bd. of California v. Constr. Laborers Vacation

Trust, 463 U.S. 1, 17 (1983) (DJA “was intended to affect

only the remedies available in a federal district court, not the

court’s jurisdiction”). As the Supreme Court has long made

clear, if a plaintiff has been placed “between the Scylla of

intentionally flouting state law and the Charybdis of forgoing

what he believes to be constitutionally protected activity in

order to avoid becoming enmeshed in a criminal proceeding,”

he has suffered an injury sufficient to establish standing to

seek declaratory relief without “first expos[ing] himself to

actual arrest or prosecution.” Steffel v. Thompson, 415 U.S.

452, 462 (1974). All that is required is that the threat of

prosecution be “credible”—as it would be with any regularly

enforced statute—rather than “imaginary or speculative” as

4

would be the case if a statute were obsolete and never

enforced. Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289, 298 (1979) (internal quotation marks omitted).

Although Navegar purported to rely on the standard

articulated in United Farm Workers, it actually grafted an

imminence requirement onto the credible threat standard

seemingly from whole cloth. See Navegar, 103 F.3d at 998

(citing United Farm Workers, 442 U.S. at 298–99, but

referring to a “threat of prosecution . . . which is credible and

immediate” and a “credible threat of imminent prosecution”

(emphasis added)). Of course, United Farm Workers and

Navegar are distinguishable but those differences do not

account for Navegar’s divergence. United Farm Workers

was the product of a lengthy evolution. The Supreme Court’s

doctrine began to take shape in Poe v. Ullman, 367 U.S. 497,

509 (1961) (plurality), where the Court denied standing to

plaintiffs seeking a declaration that a state law, which

prohibited contraceptives but had not been enforced in

decades, was unconstitutional. The Court explained, “the

mere existence of a state penal statute . . . constitute[s]

insufficient grounds to support a federal court’s adjudication

of its constitutionality . . . if real threat of enforcement is

wanting.” Id. at 507.

The Court reached the opposite result in Doe v. Bolton,

410 U.S. 179, 188 (1973), holding physicians had standing to

challenge a criminal abortion statute even though none of

them had “been prosecuted, or threatened with prosecution,

for violation” of the law. Unlike the obsolete statute in Poe,

here the statute was “recent and not moribund.” Doe, 410

U.S. at 188. Finding the statute, if enforced, would “directly

operate” against the plaintiffs, the Court held they could sue

immediately rather than waiting for “a criminal prosecution as

the sole means of seeking relief.” Id. The statute’s mere

5

existence constituted “a sufficiently direct threat of personal

detriment.” Id.

The following year, in Steffel, the Court held a plaintiff

who wished to distribute handbills protesting American

involvement in Vietnam had standing to seek a declaration

that the state law prohibiting such conduct was

unconstitutional. 415 U.S. at 459. Because the plaintiff had

been told by police that continuing to ignore their warnings

would likely lead to prosecution, the plaintiff’s fears were not

“imaginary or speculative.” Id. (internal quotation marks

omitted). Thus, it was “not necessary that [the plaintiff] first

expose himself to actual arrest or prosecution to be entitled to

challenge a statute that he claims deters the exercise of his

constitutional rights.” Id. at 459.

These principles coalesced in United Farm Workers

where the Court held plaintiffs have preenforcement standing

when they have “alleged an intention to engage in a course of

conduct arguably affected with a constitutional interest, but

proscribed by a statute, and there exists a credible threat of

prosecution thereunder.” 442 U.S. at 298. The Court held the

plaintiffs had standing to challenge a state criminal law

prohibiting certain union practices because, although the

“criminal penalty provision ha[d] not yet been applied,” “the

State ha[d] not disavowed any intention of invoking the . . .

provision against unions that commit unfair labor practices.”

Id. at 302.

Clearly, Navegar’s imminence requirement is not derived

from United Farm Workers. Instead, its language seems to

echo the injury-in-fact element of standing—requiring “an

invasion of a legally protected interest that is . . . ‘actual or

imminent.’” Navegar, 103 F.3d at 998 (quoting Lujan, 504

U.S. at 560–61). As the Navegar court perceived the axis

6

between injury and enforcement, the terms are near

synonyms. That may be because standing and ripeness tend

to merge in preenforcement challenges to criminal statutes.

Perhaps, then, the Navegar court believed that if a plaintiff

seeking to challenge a criminal statute does not face an

“actual” prosecution, he must at least face an “imminent” one.

However, by erroneously conflating a plaintiff’s injury and

the government’s prosecution, Navegar ignored the injurious

effect of the mere existence of a regularly enforced statute

that prohibits conduct a plaintiff believes is protected.

Requiring a threat of imminent prosecution also ignores the

injurious effect of other types of government coercion, such

as harassment and intimidation. The Supreme Court has

repeatedly made clear the DJA was designed to provide relief

in precisely such circumstances. See, e.g., Steffel, 415 U.S. at

462–63. Standing exists because the plaintiff’s abstention is

itself an actual injury, regardless of whether a prosecution is

imminent. See Poe, 367 U.S. at 508 (noting that a plaintiff

has preenforcement standing when his “compliance with the[]

statutes is []coerced by the risk of their enforcement”).

In the decade since it was decided, we have repeatedly

expressed grave misgivings about Navegar. We have noted

that Navegar’s analysis is in “sharp tension with standard

rules governing preenforcement challenges to agency

regulations” and freely admit it is contrary to our cases

“upholding preenforcement review of First Amendment

challenges to criminal statutes.” Seegars v. Gonzales, 396

F.3d 1248, 1253–54 (D.C. Cir. 2005). We have said (and the

court says again today) Navegar appears to demand more

than the credible threat the Supreme Court found sufficient in

United Farm Workers. See Parker v. District of Columbia,

478 F.3d 370, 375 (D.C. Cir. 2007), aff’d in part sub nom.

District of Columbia v. Heller, 128 S. Ct. 2783 (2008); Op. at

7. In Parker, we were even more forthright, noting the

7

Supreme Court’s decision in Virginia v. American

Booksellers Ass’n, 484 U.S. 383 (1988), “held it sufficient for

plaintiffs to allege ‘an actual and well-founded fear that the

law will be enforced against them,’ . . . without any additional

requirement that the challenged statute single out particular

plaintiffs by name.” Parker, 478 F.3d at 375 (quoting Am.

Booksellers, 484 U.S. at 393 (internal citation and footnote

omitted)). We noted: “In both United Farm Workers and

American Booksellers, the Supreme Court took a far more

relaxed stance on pre-enforcement challenges than Navegar

and Seegars permit.” Id.

MedImmune can now be added to the list of Supreme

Court cases conflicting with Navegar. Navegar reasons that

“a credible threat of imminent prosecution can injure the

threatened party by putting her between a rock and a hard

place[:] . . . either forego possibly lawful activity because of

her well-founded fear of prosecution, or willfully violate the

statute.” Navegar, 103 F.3d at 998. But MedImmune makes

clear that this dilemma exists even before the threatened

prosecution becomes imminent. A plaintiff may “eliminate[]

the imminent threat of harm by simply not doing what he

claimed the right to do,” but will still have preenforcement

standing “because the threat-eliminating behavior was

effectively coerced.” MedImmune, 549 U.S. at 129. Indeed,

“[t]he dilemma posed by that coercion—putting the

challenger to the choice between abandoning his rights or

risking prosecution—is ‘a dilemma that it was the very

purpose of the Declaratory Judgment Act to ameliorate.’” Id.

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967)).

Thus, failing to violate the statute, or, as in this case,

convincing the government to suspend its enforcement action,

eliminates the imminent threat but not Article III jurisdiction.

8

Navegar’s conflict with Supreme Court doctrine

notwithstanding, the court strains—unpersuasively in my

view—to fit this case within its standard. The court bases its

conclusion that “Ord’s allegations support his standing under

Navegar” on the District’s “concession” that “‘Ord’s

allegations that the District applied for an arrest warrant

against him [are] sufficient to show . . . a special priority.’”

Op. at 9–10 (quoting Appellee’s Br. 24) (alterations in

original). But, by issuing a warrant, arresting Ord’s

employees, and following Ord to another jurisdiction, the

authorities already had passed that threshold. The concession

adds nothing.

Navegar speaks of requiring a “credible threat of

imminent prosecution,” not merely a showing that the

authorities have placed a special priority on enforcing the law

against the plaintiff. 103 F.3d at 998. True, in Parker and

Seegars, we emphasized that the plaintiffs had not been

singled out for prosecution and relied on that fact to hold their

allegations of standing insufficient under Navegar. See

Parker, 478 F.3d at 375; Seegars, 396 F.3d at 1255–56. But

while this means it is necessary to show special targeting to

establish standing under Navegar, it does not necessarily

mean such a showing is sufficient. Indeed, the district court

reasonably read Navegar to demand special targeting plus

imminence, and noted that once the warrant was nullified,

there was no longer “‘a threat of prosecution reaching the

level of imminence required by Navegar.’” Ord v. District of

Columbia, 573 F. Supp.2d 88, 95 (D.D.C. 2008) (quoting

Seegars, 396 F.3d at 1255). By contrast, the court concludes

that plaintiffs meet the Navegar “credible and imminent”

standard by demonstrating that “their prosecution results from

a special law enforcement priority, namely that they have

been ‘singled out or uniquely targeted by the . . . government

9

for prosecution.’” Op. at 7 (quoting Parker, 478 F.3d at 375

(alteration in original)).

Navegar’s analysis began with an observation: “whether

a threat of prosecution adequate to satisfy the requirements of

justiciability is present in any particular preenforcement

challenge is a factual and case-specific” determination,

requiring courts to “look to a variety of factors.” 103 F.3d at

999. The court then explained, “[t]he most important

circumstance . . . [here] is that the Act in effect singles out the

appellants as its intended targets.” Id. at 1000. Thus, the fact

that the plaintiffs had been “single[d] out” was simply one

factor, albeit a significant one. See also id. at 1001 (noting,

with respect to the second part of the statute, that “[i]n the

absence of this factor, the threat of prosecution becomes far

less imminent”). The court proceeded to uphold the

plaintiffs’ standing by examining the unique factual

circumstances and drawing a connection between the

targeting in the statute and the existence of a threat of

imminent prosecution. See id. at 1000–01. It was the whole

constellation of events—the specificity of the statute, the

agents’ visits to the manufacturing facility, and the ongoing

“pro-enforcement activities”—that convinced the court the

government would not “sit idly by” if the statute was violated.

Id. at 1000. But what if the government had pledged to sit

idly by?

Here, it is obvious—even without the District’s

“concession”—that the MPD has, in some sense, “targeted”

or “singled out” Ord by obtaining a warrant for his arrest.

But it does not follow that Ord faces a threat of imminent

prosecution. The court finds that the District’s “concession

signals that it expects to prosecute [Ord] in the future.” Op. at

10. Even assuming this is a valid inference, an expectation of

future prosecution is not even remotely the same as a threat of

10

imminent prosecution. Ord currently is abstaining from

reentering D.C. with a firearm. See Aff. ¶ 30. Of course, the

court is correct in finding that Ord has alleged a desire to

reenter D.C. with his firearm, see Op. at 12–13, and no doubt

he would do so if he did not fear that a criminal prosecution

would result. But we cannot say here, as we said in Navegar,

that “if these provisions of the statute are enforced at all, they

will be enforced against th[is] appellant[].” 103 F.3d at 1000.

Under the status quo, not only does Ord not face a threat of

imminent prosecution, but in light of the nolle prosequi and

his decision to avoid reentering D.C. with a firearm, he faces

a certainty of no prosecution. Is it absurd that Ord lacks

standing to challenge a law merely because the prosecutors

decided at the last moment to nullify the warrant for his

arrest? Yes, but such is the result of our doctrine.

The court attempts to rehabilitate Navegar by asserting

that, because Ord’s “injury is imminent,” he has satisfied the

Navegar standard. Op. at 12. I accept the premise, but not

the conclusion. If an imminent injury were all Navegar

required, it would be on all fours with Supreme Court

doctrine. See Lujan, 504 U.S. at 560 (injury-in-fact must be

“actual or imminent”). Instead, Navegar requires a threat of

imminent prosecution. 103 F.3d at 998. Thus, while Ord’s

“inability to travel to D.C. and carry on his security business

here while armed without fear of prosecution,” Op. at 12,

would establish his injury-in-fact under Supreme Court

standards, it is beside the point under Navegar. Only by

redefining the word “imminent” beyond recognition is the

court able to conclude that Ord faces a threat of imminent

prosecution. While the court’s willingness to read

“imminence” out of our precedents on a case-by-case basis

may occasionally benefit plaintiffs whose standing would be

indisputable under Supreme Court standards, such an ad hoc

11

approach provides no guidance to lower courts and no

certainty to litigants.1

Not only does Navegar conflict with Supreme Court

doctrine, but our reliance on it has anomalous and injurious

practical consequences. A prosecution is unlikely to be

imminent if individuals refrain from violating the law out of

fear of prosecution. Yet, even under the court’s reading of

Navegar, individuals only have preenforcement standing if

they come close enough to violating the law to become

“singled out” or “uniquely targeted” by law enforcement. See

Op. at 7. And if they do violate the law, declaratory relief in

federal court becomes unavailable as soon as the government

initiates a prosecution. See Younger v. Harris, 401 U.S. 37,

40–41 (1971); see also Samuels v. Mackell, 401 U.S. 66, 73

(1971) (extending Younger to declaratory relief); JMM Corp.

v. District of Columbia, 378 F.3d 1117, 1125 (D.C. Cir. 2004)

(treating D.C. as a state for purposes of Younger abstention).

However, as the Supreme Court has made clear, the DJA was

designed to provide “‘an alternative to pursuit of the arguably

1

The court contends that Navegar “makes clear that . . . a special

priority is sufficient to establish imminence.” Op. at 11. To the

contrary, any such mechanical and inflexible rule would have

contravened Navegar’s opening remark that preenforcement

standing analysis is “factual and case-specific” and involves “a

variety of factors.” 103 F.3d at 999. The singling out of the

Navegar plaintiffs in the text of the statute was strong evidence

they faced a threat of imminent prosecution; but Navegar did not

suggest that every time someone is singled out by law enforcement

officers he is transformed automatically into a plaintiff with

preenforcement standing, regardless of other circumstances. In any

event, by now requiring, in effect, “a credible threat of specially

prioritized prosecution,” the court continues to mold our doctrine

around the peculiar facts of the cases that come before us, rather

than simply applying the straightforward doctrine developed by the

Supreme Court.

12

illegal activity.’” MedImmune, 549 U.S. at 129 (quoting

Steffel, 415 U.S. at 480 (Rehnquist, J., concurring)). Navegar

essentially nullifies this Congressional intent.

An even more pernicious effect of Navegar’s imminence

requirement is that it places access to preenforcement relief

entirely in the hands of the government. As the court below

explained, “[a]t first glance,” the fact that the MPD obtained a

warrant for Ord’s arrest “seems to establish that the threat of

prosecution against Ord is not imaginary or speculative.”

Ord, 573 F. Supp.2d at 94 (internal quotation marks omitted).

However, the district court correctly found that after “the

Office of the Attorney General declared a nolle prosequi of

the Information in support of the warrant,” the warrant ceased

to have effect and the threat of prosecution ceased to be

imminent. Id. at 94–95. In effect, Navegar’s imminence

requirement gave the government a “pocket veto” over Ord’s

effort to seek preenforcement relief. Amici Br. 13. Even here

on appeal, the court only finds Navegar satisfied by relying

on a concession in the District’s brief. See Op. at 9–10.

Thus, both the district court and this court agree that, under

Navegar, a plaintiff’s standing depends on the affirmative

actions of the prosecuting authorities. Our doctrine thereby

enables the government to deprive a plaintiff of

preenforcement standing simply by being silent or

deliberately vague about its intentions. Unless declaratory

relief is available, prosecutors can act strategically to protect

criminal laws or arbitrary enforcement procedures from

judicial review. That is essentially what happened here. The

District avoided a judicial decision about the validity of its

interpretation of LEOSA by withdrawing its warrant without

throttling back the level of threat. Were we content to follow

the Supreme Court’s doctrine, we would simply ask whether

Ord’s current compliance with D.C. law has been effectively

coerced by his reasonable fear that he would be prosecuted if

13

he reentered D.C. with a firearm. See MedImmune, 549 U.S.

at 129. We would answer this question in the affirmative

without being distracted by the District’s “evolving” litigation

stratagems. See Op. at 9.

It is long past time to recognize Navegar’s flaws and

articulate a preenforcement standing doctrine consistent with

decades of Supreme Court precedent. There can be no valid

jurisprudential rationale for prolonging error. Stare decisis is

an enduring principle, but it was never intended to preserve

mistakes, like an insect in amber, and prevent them from ever

being corrected. To borrow a trope from Theodore

Roosevelt: “Nine-tenths of wisdom consists in being wise in

time.” In that spirit, I urge the court to rehear this appeal en

banc and overrule Navegar.