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Private security company owner wins federal court standing to sue the D.C. government to prevent further arrest efforts over gun possession

Dec 07, 2009 Private security company owner wins federal court standing to sue the D.C. government to prevent further arrest efforts over gun possession

Robert L. Ord owns a Virginia-based private security company. As the D.C. Circuit tells it:

“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 v. D.C., ___ F.3d ___ (D.C. Cir., Dec. 4, 2009).

Perhaps still smarting over its loss in the landmark Second Amendment case of District of Columbia v. Heller, 128 S. Ct. 2783 (2008) — or perhaps, as a possibility suggested by Ord, the D.C. government wanted to protect off-duty police officers’ corner of the lucrative private armed security market — the D.C. Attorney General’s Office officials vacillated between saying the OAG would not go forward on an arrest warrant for violating the D.C. law against carrying a firearm without a license, then saying a few hours later that it might, and then finally declaring a nolle prosequi (a dismissal without prejudice to recharging the alleged crime) shortly before a hearing on Ord’s motion to quash the arrest warrant.

The United States District Court for the District of Columbia dismissed Ord’s lawsuit filed to avert further enforcement action and to collect damages, treating “his suit as a preenforcement challenge and, finding that [Ord] failed to demonstrate that he faces a genuine and imminent risk of prosecution, dismissed it for lack of standing.”

Subsequent to the District Court’s dismissal, the D.C. Circuit in Ord said:

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.

Ruling 2-1, Ord found Ord has standing to sue, saying:

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.

Ord also found that Ord has standing to bring his 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 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.

On appeal, Ord was represented by Matt LeFande, whose blog — not updated for over a year — I have listed in my blogroll’s prosecutor and law enforcement category, based on my understanding, at the time of linking to him, that he was a volunteer reserve officer with the D.C. police. His current biography seems to say he no longer volunteers with the D.C. police, which makes me inclined to remove him from my blogroll, because my only reason for listing a blog that has so few updates is that I know of few blogroll-worthy prosecutor and police blogs that regularly update.

On Ord’s amicus side was — apparently jointly — the Second Amendment Foundation and the American Civil Liberties Union of the National Capital Area — represented by lawyers Alan Gura and Art Spitzer. Born in 1971, Alan Gura successfully argued Heller in the Supreme Court. Longtime local ACLU legal director Art Spitzer — whom I have known for seventeen years — is a smart and very able advocate.

Ord reaches a good result that goes beyond Second Amendment issues to protecting people against the harassment and damage of threatened prosecution.

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