(CN) – A Virginia special conservator of the peace can sue the District of Columbia for trying to have him arrested for allegedly violating the district’s handgun ban, the D.C. Circuit ruled.
The federal appeals court overturned a ruling dismissing Robert Ord’s lawsuit for lack of standing. Ord faces a “credible and imminent threat of prosecution,” the circuit court wrote.
The D.C. metro police filed an affidavit for an arrest warrant for Ord after employees of his private security company, Falken, were arrested while stationed at a Head Start school in the district.
Ord said the metro police tried to lure him into the city by telling him he had to pick up his company truck. When that didn’t work, they staked out his Virginia office, according to the ruling.
Ord filed suit, claiming D.C. police had no probable cause to pursue an arrest warrant, because Ord was a law enforcement officer exempt from the D.C. handgun ban.
The lower court ruled that Ord’s case amounted to a “pre-enforcement challenge,” because police hadn’t actually arrested him. The D.C. Circuit reversed, saying Ord’s fear of arrest constituted an imminent injury.
“[T]he arrest warrant effectively exiled him from the District of Columbia,” which amounted to a type of illegal search and seizure, the court wrote.
It noted that the District of Columbia had admitted on appeal that, by seeking a warrant for Ord, it had a special priority for his arrest.
“[T]he 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 enforcing the law against him,” Judge David Tatel wrote.
The court said the special priority was proof of imminent prosecution.
Dissenting Judge Janice Rogers Brown said the majority strained to fit the case to a previous ruling, Navegar Inc. v. United States, which demands that plaintiffs show an imminent threat of prosecution, or that they have been “singled out or uniquely targeted by the government for prosecution.”
But Brown said Ord had a case without drawing on Navegar, stressing that it was wrong to compare a special priority to arrest Ord with imminent prosecution.
“An expectation of future prosecution is not even remotely the same as a threat of imminent prosecution,” Brown wrote.
“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,” Brown wrote. She urged the court to overrule Navegar.
“It is long past time to recognize Navegar‘s flaws and articulate a pre-enforcement standing doctrine consistent with decades of Supreme Court precedent,” she wrote. “There can be no valid jurisprudential rationale for prolonging error.”