Robert Ord says he stays away from the District of Columbia because he fears he will be arrested on a gun charge. The private security officer unsuccessfully sought a declaration in federal court that he is immune from prosecution on D.C. gun laws. His suit was tossed for a lack of standing.
Ord is challenging the dismissal in the U.S. Court of Appeals for the D.C. Circuit, where the Second Amendment Foundation and the ACLU National Capital Area are participating as amicus curiae in support of Ord, saying his case against the city should move forward. At issue on appeal is whether Ord has standing to sue the District.
For background, Ord runs a private security business, Falken Industries, and is considered a special conservator of the peace under Virginia law. That means Ord, who is a “qualified” law enforcement officer in the eyes of Virginia, allowed to carry a gun there. Ord thinks he should be allowed to carry a gun in D.C. for his line of work. But he’s not willing to test the authorities—not after police in April 2008 applied for and received a warrant for his arrest on the charge of possession of an unregistered firearm, a misdemeanor.
Ord’s lawyer, Matthew LeFande, convinced the D.C. Office of the Attorney General to dismiss the charge. Ord was never arrested. He was not prosecuted. D.C. police issued a memo in 2008 to its reserve corps members saying that a “qualified law enforcement officer” is someone who works for the Metropolitan Police Department. The memo said conservators of the peace cannot carry guns in the District.
On the same day the arrest warrant was dropped, Ord filed a complaint in federal court alleging the initiation of prosecution—even though the case didn’t go anywhere—amounted to a deprivation of civil rights and malicious prosecution. He sought compensatory and punitive damages in addition to a declaration that he is immune from prosecution under D.C. gun laws. A copy of Ord's complaint is here.
Ord alleges fear of future arrest and prosecution based on the D.C. police memo. But U.S. District Judge John Bates noted that the memo does not apply to Ord but only to members of the D.C. police reserve corps. Ord’s fear of future arrest, the judge said, is “mere conjecture” and not enough to prove he has standing in the case.
The amicus curiae lawyers, Alan Gura of Gura & Possessky and Art Spitzer of the ACLU National Capital Area, say the D.C. Circuit has adopted too narrow a standard to prove standing, effectively limiting access to the courts.
“We think the doors to the courthouse ought to be open to people who have legitimate disputes,” Spitzer says. Gura, who successfully argued in the Supreme Court the landmark Second Amendment case, D.C. v. Heller, says the Ord case is a chance for the D.C. Circuit to “correct its error” in how to show standing.
Ord, who started Falken Industries in 2003, says he’s dropped contracts in the District that cost him hundreds of thousands of dollars. “A guy who’s been run out of town by the D.C. police department has a right to his day in court, and he was denied that by the district court,” Ord’s lawyer, LeFande, says. “The D.C. government was given a pass on this whole thing.”
In December, Circuit Judges Karen LeCraft Henderson, Janice Rogers Brown, and Brett Kavanaugh denied the District’s motion for summary affirmance, saying the merits of the opposing sides are not so clear to grant the motion. No argument date is set.