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
 3
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
 4
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
 6
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).
 7

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.
 9
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
 11
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
 12
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).
 18

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.