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Robert L. Ord v. District of Columbia

September 15, 2011

ROBERT L. ORD, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff Robert L. Ord brings this action against the District of Columbia regarding an allegedly unlawful warrant for his arrest that remained outstanding for three days before the charges were abandoned. Plaintiff seeks damages, as well as declaratory and injunctive relief, pursuant to 42 U.S.C. § 1983 for alleged violations of his Fourth Amendment, Due Process, and Equal Protection rights, and pursuant to common-law theories of malicious prosecution and intentional infliction of emotional distress. The District of Columbia has moved for summary judgment. Because plaintiff cannot "demonstrate that the statutes [pursuant to which he was arrested] are so unambiguous that a reasonable officer could not believe that he is subject to the firearms laws," Ord v. District of Columbia, 417 Fed. App'x 1, 2 (D.C. Cir. 2011) (citing Doe v. Metro. Police Dep't, 445 F.3d 460, 461, 467-69 (D.C. Cir. 2006)), the Court will grant defendant's motion for summary judgment as to plaintiff's federal claims and decline to exercise jurisdiction over his remaining District of Columbia-law claims.

BACKGROUND

To repeat the obvious, the Court, and the parties, have been here before. See Ord v. District of Columbia, 573 F. Supp. 2d 88, 90-91 (D.D.C. 2008); Ord v. District of Columbia, No. 08-cv--704 (D.D.C. May 10, 2010) [Docket Entry 27] at 1-3; see also Ord v. District of Columbia, 587 F.3d 1136, 1138-40 (D.C. Cir. 2009); Ord, 417 Fed. App'x 1. Therefore, the Court only briefly recounts the relevant background.

Plaintiff is the owner of a private security company and sought to provide security services in the District of Columbia. See Aff. of Robert Ord ("Ord Aff.") [Docket Entry 9] ¶ 5. He is appointed in Virginia as a special conservator of the peace ("SCOP"), which permits him "to carry firearms while acting within the course and scope of his employment and appointment as a special conservator of the peace." Compl. [Docket Entry 1] ¶ 12, Ex. A (special conservator of the peace appointment) at 4. Prior to the warrant for plaintiff's arrest, the District of Columbia Metropolitan Police Department ("MPD") had issued a memorandum warning that "[a] SCOP who is" not an "employee[] of [a] government agenc[y] . . . and carries a firearm in the District of Columbia will be subject to all relevant criminal penalties." Compl. ¶ 18 & Ex. B (MPD Memorandum) at 1. After learning of plaintiff's intent to do business in the District and after arresting two of his employees who were armed with firearms unregistered in the District, the MPD applied for, and was granted, a warrant for plaintiff's arrest for possession of unregistered firearms and ammunition in violation of D.C. Code §§ 7-2502.01, -2506.01. Compl. ¶ 19. Three days after the warrant was issued, the Office of the Attorney General decided not to pursue the prosecution, declaring a nolle prosequi. Compl. ¶¶ 28-29. Plaintiff was neither arrested nor taken into custody.

On the same day that the District nullified the warrant, plaintiff commenced this action.

This Court originally dismissed the case for lack of standing, Ord, 573 F. Supp. 2d at 96, but was reversed on appeal, Ord, 587 F.3d at 1138. Plaintiff then applied for a preliminary injunction, which this Court denied, see Ord [Docket Entry 27], and the denial of which the D.C. Circuit affirmed, Ord, 417 Fed. App'x 1. The District of Columbia now moves for summary judgment.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. Moreover, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

DISCUSSION

The District of Columbia is entitled to judgment as a matter of law on plaintiff's federal claims. In his only substantial claim -- brought under § 1983 -- plaintiff fails to address the D.C. Circuit's admonition that he "must prove more than that under the best reading of the various statutes at issue in this case, he is exempt from the District's firearms laws." Ord, 417 Fed App'x at 2. As to his other two federal claims, not only does plaintiff fail sufficiently to allege a constitutional violation, but he concedes those claims by failing to reply to defendant's contentions. Because defendant is entitled to judgment as a matter of law as to plaintiff's federal claims, this Court will decline to exercise supplemental jurisdiction over the common law claims and will dismiss the action.

1. Fourth Amendment Claim

On appeal of this Court's denial of a preliminary injunction, the D.C. Circuit explained that "to prevail on his 42 U.S.C. ยง 1983 claim that the District would violate his Fourth Amendment rights by arresting and prosecuting him for carrying an unregistered firearm in the District, Ord must prove more than that under the best reading of the various statutes at issue in this case, he is exempt from the District's firearms laws." Id. As the D.C. Circuit explained, under circuit law, plaintiff "must demonstrate that the statutes are so unambiguous that a ...


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