A federal appeals court today revived a suit filed by the owner of a Virginia security company who was targeted, but not arrested, for prosecution in the District of Columbia on an unregistered firearms charge.
The suit, filed last year in the U.S. District Court for the District of Columbia, alleges the police acted in bad faith in securing a warrant for the arrest of Robert Ord, the owner of Falken Industries. Ord is licensed to carry a firearm in Virginia. Since 2006, he has provided security service in the District.
Last year, District lawyers abandoned the case against Ord. But he still sued, on the grounds that the threat of prosecution has cost him hundreds of thousands of dollars in contracts. Ord said he is unwilling to work in the city out of fear he will be arrested and prosecuted on a gun charge. His suit, which seeks damages, was thrown out last year. Judge John Bates said Ord’s fears of prosecution were “mere conjecture.”
But on Dec. 4 the U.S. Court of Appeals for the D.C. Circuit ruled in Ord’s favor, finding that the suit met certain thresholds. The court ordered additional hearings. “Obviously we are pleased the matter was reversed,” said Ord’s lawyer, Matthew LeFande, a solo practitioner in Arlington, Va. “Ultimately, we got the decision we wanted.” The court heard oral argument in September.
“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,” wrote Judge David Tatel, who was joined by Judge Judith Rogers. Judge Janice Rogers Brown agreed in part. “That injury is imminent because the District of Columbia has made clear its specific intention to prosecute him.”
District lawyers, including D.C. Solicitor General Todd Kim, said Ord’s claims are meritless since he was never arrested. There was neither a search nor seizure in the case, District lawyers said. The appeals court disagreed.
“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 substantial injury,” Tatel wrote. (Click here for the opinion.)
The Second Amendment Foundation, represented by Alan Gura of Alexandria, Va.’s Gura & Possessky, supported Ord as an amicus. Arthur Spitzer, legal director of the American Civil Liberties Union of the National Capital Area, was also on an amicus brief supporting Ord.