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Ord v. District of Columbia

August 29, 2008


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Robert L. Ord brings this action against the District of Columbia alleging deprivation of a liberty interest in violation of the Fourth Amendment, malicious prosecution, and intentional infliction of emotional distress. Currently before the Court is Ord's motion for a preliminary injunction seeking to restrain the District, its officers, agents, servants, employees and/or attorneys from prosecuting or arresting him for alleged violations of the District of Columbia's firearms statutes. In response, the District has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing that Ord lacks standing, that his claims are unripe, and that he has failed to state a claim upon which relief can be granted. Upon careful consideration of the motions, the parties' memoranda, the applicable law, and the entire record, and for the reasons set forth below, the Court will grant the District's motion to dismiss and will deny Ord's motion for a preliminary injunction.


Ord started a private security business, Falken Industries, in 2003. See Stmt. of Robert Ord (Docket No. 9) ¶ 5. On June 8, 2007, he was appointed by the Virginia Circuit Court of Orange County as a Special Conservator of the Peace. See Compl. ¶ 12 (citing Pl.'s Ex. A). The appointment order states that Ord "is authorized to carry firearms while acting within the course and scope of his employment and appointment as a Special Conservator of the Peace, so long as firearms certification is maintained." Pl.'s Ex. A at 4. The appointment order also states that Ord is designated as a "Qualified Law Enforcement Officer" pursuant to the Law Enforcement Officers Safety Act of 2004, 18 U.S.C. § 926B. See id.

On February 2, 2008, the Metropolitan Police Department ("MPD") issued a memorandum to all Metropolitan Police Department Reserve Corps Members. See Compl. ¶ 18. Ord attaches a copy of this memorandum to the complaint, although Ord does not claim to be an MPD Reserve Corps Member. See Pl.'s Ex. B. The memorandum warns MPD Reserve Corps Members who also serve as Special Conservators of the Peace that they have "no authority to carry a firearm in the District of Columbia" unless they are qualified law enforcement officers under the Law Enforcement Officers Safety Act of 2004. Id. at 1. The MPD memorandum further states that regardless of what the Virginia Circuit Court's Order of Appointment represented, a qualified law enforcement officer "includes only those law enforcement officers who are employees of government agencies." Id. For those individuals who carry firearms in the District of Columbia while not properly covered under 18 U.S.C. § 926B, then, the memorandum warns that they will be "subject to all relevant criminal penalties." Id.

On April 17, 2008, MPD Detective Kimberly Marshall made an application for an arrest warrant against Ord, alleging that Ord had possessed unregistered firearms and ammunition on or about April 4, 2008, in violation of D.C. Code § 7-2502.01. See Compl. ¶ 19. Ord learned of the arrest warrant on April 21, 2008. See Stmt. of Robert Ord ¶ 21. The next day, Ord's attorney provided evidence to the District of Ord's status as a Special Conservator of the Peace, and the Office of the Attorney General indicated it would "not go forward with this warrant." Compl. ¶ ¶ 24, 26. Ord's counsel thereafter moved the Superior Court to dismiss the Information and quash the warrant, and on April 24, 2008, the Office of the Attorney General declared a nolle prosequi of the Information in support of the warrant. See Compl. ¶¶ 28-29. Ord was therefore never arrested or taken into custody. In Ord's own words, he "does not claim that the Defendant or its agents physically seized his person or property, or that he was subjected to post-arraignment limitations on his freedom." Pl.'s Opp'n at 10.

On the same day that the warrant was nullified, however, Ord filed his complaint in this Court alleging deprivation of a liberty interest pursuant to 42 U.S.C. § 1983 and common law claims of malicious prosecution and intentional infliction of emotional distress pursuant to District of Columbia law. In addition to compensatory and punitive damages, Ord seeks a declaration that he is exempt from certain District of Columbia firearms regulations, and he asks this Court to enjoin the District from prosecuting or enforcing these laws against him.


"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992).


I. Ord's Federal Law Claim

Because Ord has not been arrested and prosecuted, Ord's "case constitutes a 'preenforcement' challenge." Seegars v. Gonzales, 396 F.3d 1248, 1251 (D.C. Cir. 2005). Preenforcement challenges often encounter particular problems of justiciability because the authority of the judiciary is limited by Article III of the Constitution to the "resolution of 'cases' and 'controversies.'" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). A matter may be rendered non-justiciable for a variety of reasons, frequently blending constitutional and prudential considerations. See Flast v. Cohen, 392 U.S. 83, 95 (1968) ("no justiciable controversy is presented . . . when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action"). Here, the District argues that the absence of a ripe claim and standing deprives this Court of jurisdiction to grant the relief Ord requests.

"Ripeness analysis tests whether a question has sufficiently matured to be amenable to adjudication." Flynt v. Rumsfeld, 355 F.3d 697, 702 (D.C. Cir. 2004); see also Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997) ("A related component of justiciability which is particularly relevant in the context of actions for preenforcement review of statutes is 'ripeness,' which focuses on the timing of the action rather than on the parties seeking to bring it."). Under the two-pronged test for ripeness, "[a] court is to evaluate 'both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'" Nevada v. Dep't of Energy, 457 F.3d 78, 84 (D.C. Cir. 2006) (quoting Abbott Labs. v. Gardner, 387 U.S. 136 (1967)). "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Id. at 85 (quoting Texas v. United States, 523 U.S. ...

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