United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2009 Decided December 4, 2009 

No. 08-7094 

ROBERT L. ORD, 

APPELLANT

v. 

DISTRICT OF COLUMBIA, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:08-cv-00704) 

Matthew A. LeFande argued the cause and filed the briefs 

for appellant. 

Todd S. Kim, Solicitor General, Office of the Attorney 

General for the District of Columbia, argued the cause for 

appellee. With him on the brief were Peter J. Nickles, 

Attorney General, and Donna M. Murasky, Deputy Solicitor 

General. 

Alan Gura and Arthur B. Spitzer were on the brief for 

amici curiae Second Amendment Foundation, Inc. and 

American Civil Liberties Union of the National Capital Area 

in support of appellant. 
2 

Before: ROGERS, TATEL, and BROWN, Circuit Judges. 

Opinion for the Court filed by Circuit Judge TATEL. 

Opinion dissenting in part filed by Circuit Judge BROWN. 

TATEL, Circuit Judge: Appellant, a Virginia Special 

Conservator of the Peace authorized to carry weapons within 

the Commonwealth, brought suit against the District of 

Columbia alleging that it lacked probable cause to secure an 

arrest warrant against him for allegedly violating D.C. 

firearms laws. Because appellant was never arrested, the 

district court treated his suit as a preenforcement challenge 

and, finding that appellant failed to demonstrate that he faces 

a genuine and imminent risk of prosecution, dismissed it for 

lack of standing. For the reasons set forth in this opinion, we 

reverse. 

I. 

In 2007, the Virginia Circuit Court of Orange County 

appointed appellant Robert Ord a Special Conservator of the 

Peace (SCOP). That order authorized Ord to carry firearms 

while acting in the course of his duties. It also designated him 

a “Qualified Law Enforcement Officer” with respect to 

certain provisions of Virginia and federal law, including the 

federal Law Enforcement Officers Safety Act of 2004. 

Known as LEOSA, that statute allows officers to carry 

concealed firearms notwithstanding contrary state law. See

18 U.S.C. § 926B. 

 Ord owns Falken Industries, a private security company 

holding a Detective Agency License issued by the D.C. 

Metropolitan Police Department (MPD). Since 2006, Falken 

has provided private security services within the District of 
3 

Columbia. In 2008, sowing the seeds of this litigation, Falken 

contracted to provide armed security at a District of Columbia 

Head Start school. Because certain aspects of that contract 

required MPD approval, Ord discussed it with an MPD officer 

and submitted requested paperwork. Although Ord was told 

that “all things looked ‘OK,’” Appellant’s Aff. ¶ 16, he 

learned a few days later that the MPD had arrested Falken 

employees stationed at the school for carrying weapons 

without permits. An MPD officer then told Ord that a warrant 

had been issued for his arrest for violating D.C. Code 

§ 7-2502.01(a), which prohibits carrying a firearm without a 

license. The next day Ord noticed several MPD officers near 

Falken’s Virginia headquarters. 

 

 After learning of the warrant, Ord’s attorney contacted 

the D.C. Office of the Attorney General (OAG), supplied 

evidence of Ord’s SCOP status, and demanded nullification of 

the warrant because of Ord’s exemption from the District of 

Columbia’s firearms law. Although an OAG official initially 

indicated that the office would “not go forward with this 

warrant,” Compl. ¶ 26, OAG changed its position several 

hours later, informing counsel that it might enforce the 

warrant. Ord’s attorney immediately asked the D.C. Superior 

Court to quash the warrant. Again reversing course and 

shortly before a scheduled hearing, OAG declared a nolle 

prosequi. Ord was never arrested. 

 

 Fearing future prosecution and claiming injury from the 

arrest warrant, Ord brought suit in federal district court, 

seeking damages for a Fourth Amendment violation under 42 

U.S.C. § 1983. In his complaint, Ord alleged that MPD 

officers filed the affidavit in support of the warrant in bad 

faith and without probable cause. According to Ord, MPD 

officers knew not only that Ord is an SCOP, but also that 

SCOP status exempts him from section 7-2502.01(a)’s ban on 
4 

possessing weapons in the District of Columbia. He cited 

section 7-2502.01(b), which provides that “any law 

enforcement officer or agent of the government of any state or 

subdivision thereof” is exempt from the statute if he is 

“authorized to possess . . . a firearm . . . while on duty in the 

performance of official authorized functions.” 

 

 In support of his damages claim, Ord alleged that the 

issuance of an arrest warrant without probable cause required 

him to incur substantial attorney’s fees and forced his 

company to abandon contracts to provide armed security in 

the District of Columbia—contracts that were worth several 

hundred thousand dollars. Alleging that the MPD may arrest 

him in the future in order to intimidate him from competing 

with off-duty MPD officers for private security contracts, Ord 

also sought declaratory and injunctive relief. Specifically, 

Ord asked the court to declare him (1) a “law enforcement 

officer or agent of the government of any state or subdivision 

thereof” for the purposes of D.C. law and (2) exempt from 

D.C. Code § 7-2502.01(a) and “other such District of 

Columbia firearms regulations wherein law enforcement 

officers or agents are exempt therefrom.” Compl. ¶¶ 48–49. 

Finally, Ord asked the court to enjoin the District of Columbia 

from enforcing or prosecuting “such laws” against him. Id. 

¶ 50. 

 The district court, focusing on Ord’s request for 

declaratory and injunctive relief, labeled his claim a 

“preenforcement challenge” and dismissed the complaint for 

lack of standing under Federal Rule of Civil Procedure 

12(b)(1). Ord v. District of Columbia, 573 F. Supp. 2d 88 

(2008). Although the court acknowledged that “[a] credible 

and imminent threat of prosecution . . . ‘can simultaneously 

ripen a preenforcement challenge and give the threatened 

party standing,’” id. at 92 (quoting Navegar, Inc. v. United 
5 

States, 103 F.3d 994, 998 (D.C. Cir. 1997)), it nonetheless 

ruled that Ord had no basis for asserting such a credible and 

imminent threat of prosecution because “the affirmative step 

by the District to nullify the warrant is strong evidence that 

the District does not presently intend to prosecute Ord,” id. at 

94–95. The court also rejected Ord’s reliance on a 

memorandum the MPD sent to Reserve Corps Members, 

which stated that LEOSA authorizes only “employees of 

government agencies” to carry firearms within the District of 

Columbia, see 18 U.S.C. § 926B(c), and warned that SCOPs 

not “covered” by LEOSA will be subject to all relevant 

criminal penalties for violating D.C. firearms laws, Mem. of 

Victor Brito, Inspector/Director, MPD (Feb. 2, 2008). 

Pointing out that “this memorandum was not sent to [Ord] and 

does not include him as a member of its general audience,” 

the district court found that the memorandum’s “general 

recognition of, or even intention to enforce, the District’s 

firearms laws does not establish that Ord was specifically 

targeted” for prosecution as required by our standing cases. 

Ord, 573 F. Supp. 2d at 95. 

 

Ord appeals, arguing that he has sufficiently alleged 

standing based on the previous arrest warrant, his allegations 

of bad faith, and the MPD memorandum. Amici curiae, the 

Second Amendment Foundation and the American Civil 

Liberties Union of the National Capital Area, urge us to 

overrule our preenforcement standing cases because, in their 

view, they conflict with Supreme Court doctrine. 

II.

 As an initial matter, the District of Columbia urges us to 

convert its motion to dismiss into a motion for summary 

judgment because the district court considered matters outside 

the pleadings, namely Ord’s affidavit describing his business, 

the events surrounding the arrest warrant, and his concerns 
6 

about future prosecution. See Fed. R. Civ. P. 12(d). But 

because Rule 12(d)’s conversion mechanism applies only to 

motions under Rule 12(b)(6) or 12(c), “the impropriety of 

transforming Rule 12(b)(1) motions into summary-judgment 

motions is well-settled.” Haase v. Sessions, 835 F.2d 902, 

906 (D.C. Cir. 1987) (internal quotation marks omitted). To 

be sure, the District of Columbia filed motions to dismiss 

under both Rules 12(b)(1) and 12(b)(6), but the district court 

ruled only on the Rule 12(b)(1) motion. We thus consider 

Ord’s complaint and the parties’ arguments under standards 

applicable to a motion to dismiss. Specifically, reviewing de 

novo, see, e.g., Doe v. Metro. Police Dep’t, 445 F.3d 460, 465 

(D.C. Cir. 2006), we “must accept as true all material 

allegations of the complaint, and must construe the complaint 

in favor of the complaining party,” Warth v. Seldin, 422 U.S. 

490, 501 (1975). 

With this standard in mind, we first consider whether Ord 

has sufficiently alleged Article III standing. Then in Part III 

we consider the District of Columbia’s alternative 

jurisdictional argument, namely that Ord’s preenforcement 

and damages claims are too insubstantial to invoke federal 

jurisdiction. 

 

Preenforcement Challenge 

 To establish Article III standing, “[a] plaintiff must have 

suffered an ‘injury in fact’—an invasion of a legally protected 

interest which is (a) concrete and particularized, and (b) actual 

or imminent, not conjectural or hypothetical.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal 

quotation marks and citations omitted). The plaintiff’s injury 

must be “fairly traceable to the challenged action of the 

defendant,” and likely to be “redressed by a favorable 

decision.” Id. at 560–61 (internal quotation marks and 

alterations omitted). 
7 

 Where a plaintiff has yet to face prosecution under a 

statute he seeks to challenge, the Supreme Court, in Babbitt v. 

United Farm Workers, requires that he establish Article III 

standing by (1) “alleg[ing] an intention to engage in a course 

of conduct arguably affected with a constitutional interest, but 

proscribed by a statute,” and (2) demonstrating that “there 

exists a credible threat of prosecution thereunder.” 442 U.S. 

289, 298 (1973). In Navegar, Inc. v. United States, however, 

we held that plaintiffs must show more than a “credible 

threat” of prosecution: they must demonstrate an “imminent” 

threat. 103 F.3d at 999; see also Parker v. District of 

Columbia, 478 F.3d 370, 375 (D.C. Cir. 2007), aff’d in part 

sub nom. District of Columbia v. Heller, 128 S. Ct. 2783 

(2008); Seegars v. Gonzales, 396 F.3d 1248, 1255 (D.C. Cir. 

2005). To prove that a threat is both credible and imminent, 

we require plaintiffs to demonstrate that their prosecution 

results from a special law enforcement priority, namely that 

they have been “singled out or uniquely targeted by the . . . 

government for prosecution.” Parker, 478 F.3d at 375. 

 In Navegar, we considered gun manufacturers’ 

preenforcement challenges to provisions of the Violent Crime 

Control and Law Enforcement Act of 1994, which barred 

manufacturing and possessing semiautomatic assault 

weapons. 18 U.S.C. §§ 921–924 (1994). Certain provisions 

of the statute banned specific weapons by name. Navegar, 

103 F.3d at 997. Observing that this specificity “show[ed] 

that the law place[d] a high priority” on prosecuting the 

companies that manufactured the named weapons, we found 

that those companies had standing to challenge the provisions 

of the statute that banned their products. Id. at 1000. By 

contrast, we found that no plaintiff had standing to challenge 

other parts of the statute prohibiting weapons not by name, 

but by general characteristics. Given that the statute 
8 

described those weapons only in general terms, we concluded 

that their manufacturers had failed to show that the 

government placed a special priority on enforcing the law 

against them. Id. at 1001–02. 

 Acknowledging that our case law demands more than 

does United Farm Workers, we have nonetheless continued to 

require plaintiffs to demonstrate that enforcing the law against 

them represents a “‘special priority’ for the government.” See 

Seegars, 396 F.3d at 1255 (quoting Navegar, 103 F.3d at 

1001). For example, in Seegars we held that where plaintiffs 

alleged nothing more than that but for the District of 

Columbia’s gun laws they would have obtained and registered 

pistols to keep and carry in their homes, they “ha[d] not 

shown a threat of prosecution reaching the level of imminence 

required by Navegar.” Id. “[N]othing in the record,” we 

explained, demonstrated that plaintiffs had been “personally 

threatened with prosecution” or that their prosecution had 

“any special priority for the government.” Id. (internal 

quotation marks omitted). Similarly, in Parker v. District of 

Columbia, we felt “obliged to look for an allegation that 

appellants . . . ha[d] been singled out or uniquely targeted by 

the D.C. government for prosecution.” 478 F.3d at 375. We 

were unable to find such an allegation because, with one 

exception, the plaintiffs claimed only that (1) they wished to 

own prohibited firearms and (2) the District of Columbia had 

declared its intention to prosecute all violators. We found 

those threats insufficient given that they expressed no 

“‘special priority’ for preventing these [plaintiffs] from 

violating the gun laws, or a particular interest in punishing 

them for having done so.” Id. Instead, the District of 

Columbia merely expressed “a sentiment ubiquitous among 

stable governments the world over, to wit, scofflaws will be 

punished.” Id. 
9 

 Ord argues that he has satisfied our preenforcement 

standing requirements because the previous warrant for his 

arrest demonstrates that enforcing the law against him is a 

“special priority” of the District of Columbia. Challenging 

the district court’s conclusion that the warrant’s nullification 

was “strong evidence that the District [did] not presently 

intend to prosecute” him, Ord, 573 F. Supp. 2d at 94–95, Ord 

argues that D.C.’s only motivation for quashing the warrant 

was to prevent judicial review of his claimed exemption from 

the District’s firearms laws. According to Ord, the District of 

Columbia’s bad faith in securing and then belatedly quashing 

the warrant, together with the MPD’s determination to drive 

his company from the District of Columbia, proves that he 

faces a credible and imminent threat of future prosecution. 

Ord also claims that the MPD memorandum supports his fear 

of future prosecution, emphasizing its statement that 

“SCOP[s] who [are] not covered by 18 U.S.C. § 926B and 

carr[y] firearm[s] in the District of Columbia will be subject 

to all relevant criminal penalties.” Mem. of Victor Brito. 

 The District of Columbia’s position with regard to Ord’s 

standing has evolved during this litigation. In the district 

court, it “ma[de] much ado about the fact that the Office of 

the Attorney General declared a nolle prosequi of the 

Information in support of the warrant” and insisted that this 

action negated any inference of a credible and imminent 

threat of future prosecution. Ord, 573 F. Supp. 2d at 93. On 

appeal, however, the District of Columbia now agrees with 

Ord that “his showing regarding the likelihood that [future] 

prosecution [will] occur [is] sufficient” because “Ord’s 

allegations that the District applied for an arrest warrant 

against him [are] sufficient to show . . . a special priority.” 

Appellee’s Br. 24. 
10 

 Given the District of Columbia’s concession, the 

previous arrest warrant, Ord’s claims of bad faith, and the 

arrests of Falken employees, Ord’s allegations support his 

standing under Navegar. Indeed, Ord’s position is quite 

similar to that of the Navegar plaintiffs whose products the 

statute banned by name. Just as the statute’s identification of 

certain weapons by name evidenced “a high priority” on 

prosecuting the companies that produced those weapons, the 

warrant for Ord’s arrest reveals that the District of Columbia 

has already targeted him for prosecution, and its concession 

signals that it expects to prosecute him in the future. In 

addition, Ord’s allegation that the MPD remains determined 

to drive his company from the city suggests that the District 

of Columbia places a special priority on enforcing the laws 

against him. 

 Indeed, Ord has alleged a more genuine and imminent 

threat of prosecution than did the Navegar, Seegars, and 

Parker plaintiffs whose standing we rejected. In Navegar, the 

manufacturers whose weapons were unnamed by the statute 

pointed only to the high-profile nature of their business, the 

publicity surrounding enactment of the law, visits from ATF 

agents, and a letter they all received from ATF describing the 

newly enacted statute. See Navegar, 103 F.3d at 1001. The 

Seegars and Parker plaintiffs showed even less: the Seegars 

plaintiffs pointed to nothing more than the firearms laws and 

alleged that the threat of prosecution discouraged them from 

keeping guns within the District of Columbia, see 396 F.3d at 

1255; the Parker plaintiffs (again, with one exception) also 

pointed to the existence of the gun laws and relied on general 

threats of their enforcement, see 478 F.3d at 375. Here, by 

contrast, the 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 
11 

enforcing the law against him. Thus, even without relying on 

the MPD memorandum—the significance of which the parties 

dispute—we conclude that Ord has sufficiently shown a 

credible and imminent threat of prosecution. 

The dissent faults us for “read[ing] ‘imminence’ out of 

our precedents,” Dissenting Op. at 10, and contends that a 

special law enforcement priority constitutes “simply one 

factor” in the imminence analysis, id. at 9. In Navegar, 

however, we chiefly relied on the fact that the statute 

expressly targeted particular weapons manufacturers, pointing 

out that “[t]he visits by the ATF agents to appellants’ places 

of business merely provide[d] a bit of additional support for a 

fear of prosecution already firmly grounded in the language 

of the Act itself.” 103 F.3d at 1000 (emphasis added). 

Following Navegar’s lead, Seegars and Parker looked only 

for a “special priority” of prosecution. See Seegars, 396 F.3d 

1255; Parker, 478 F.3d at 375. Thus, our case law makes 

clear that such a special priority is sufficient to establish 

imminence. 

Our dissenting colleague, stating that Ord “faces a 

certainty of no prosecution” because he has decided to avoid 

entering D.C. with a firearm, argues more generally that “[a] 

prosecution is unlikely to be imminent if individuals refrain 

from violating the law out of fear of prosecution.” Dissenting 

Op. at 10, 11. Navegar, however, demonstrates that 

imminence is not defeated simply because the plaintiff 

complies with the challenged statute. There, we 

acknowledged that plaintiffs had ceased manufacturing the 

banned weapons, Navegar, 103 F.3d at 997, but ruled that 

such compliance did not extinguish their preenforcement 

standing. Rather, “[i]t is . . . th[e] threat of prosecution which 

creates the ‘injury in fact’ required under standing doctrine, 

for the threat forces appellants to forego the manufacture and 
12 

transfer of the weapons specified in the Act.” Id. at 1001. So 

too here. 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. That injury is imminent because 

the District of Columbia has made clear its specific intention 

to prosecute him. 

The District of Columbia insists that Ord also lacks 

standing because he has failed to satisfy United Farm 

Workers’ first requirement: that a preenforcement plaintiff 

“allege[] an intention to engage in a course of conduct . . . 

proscribed by a statute.” United Farm Workers, 442 U.S. at 

298. To be sure, as the District of Columbia emphasizes, Ord 

never alleges in so many words that he intends to enter the 

District of Columbia while armed. But at this stage of the 

litigation, we must make all reasonable inferences in Ord’s 

favor, see supra at 6, and viewed through that lens, Ord’s 

complaint and affidavit can only be understood to mean that if 

the threat of arrest is removed, he intends to travel to D.C. 

while armed to engage in his security business. See Seegars, 

396 F.3d at 1251 (plaintiff need not express an unconditional 

intent to engage in the prohibited behavior regardless of 

whether the statute is invalidated). Specifically, Ord alleges 

in his affidavit that Falken Industries possesses an MPD 

license and that it had several contracts to provide armed 

security services in the District of Columbia until forced to 

abandon them once D.C. issued the warrant for his arrest and 

actually arrested Falken employees. Although Ord’s 

abandonment of the contracts could suggest that he no longer 

plans to enter the District while armed, his affidavit indicates 

just the opposite: 

While I was once able to enter the District of 

Columbia with my firearm as a police officer, I can 

no longer do so for fear of my unlawful arrest. It is 
13 

impossible for me to go from one location in 

Virginia where I need my firearm to perform my 

duties to another location in the District of 

Columbia. I have no means to secure and leave my 

gun somewhere when I enter the District of 

Columbia. 

Appellant’s Aff. ¶ 30. Moreover, Ord’s request for relief—a 

declaratory judgment and an injunction prohibiting the 

District of Columbia from enforcing its firearms laws against 

him—makes sense only if he actually intends to return to D.C. 

while armed to service his clients. We thus conclude that Ord 

has standing to bring his preenforcement claim. 

 Our dissenting colleague, who raises several interesting 

points, would en banc this case “sua sponte and overrule 

Navegar.” Dissenting Op. at 1. But because we have 

concluded—without “strain[ing],” id.—that Ord has standing 

under Navegar, this is simply not a case of “exceptional 

importance” warranting the attention of the full court, Fed. R. 

App. P. 35(a)(2). Nor, for the same reason, would an Irons

footnote be appropriate. See D.C. Cir., Policy Statement on 

En Banc Endorsement of Panel Decisions 2 (Jan. 17, 1996) 

(“The panel also should be satisfied that deciding the question 

is necessary to an adequate disposition of the case.” 

(emphasis added)); see also LaShawn v. Barry, 87 F.3d 1389, 

1395 (D.C. Cir. 1996) (en banc). We thus turn to Ord’s 

standing to bring his claim for damages flowing from the 

issuance of the warrant. 

Damages Claim 

 This issue is easy. The District does not challenge Ord’s 

standing to bring his damages claim, and for good reason. To 

begin with, Ord has plainly alleged injury in fact. According 

to his complaint, an MPD officer caused a warrant to issue for 
14 

Ord’s arrest on the basis of a false affidavit and without 

probable cause, forcing him to abandon lucrative armed 

security contracts within the District of Columbia. Ord has 

also sufficiently alleged causation: the arrest warrant 

prevented him from entering D.C., which in turn required him 

to abandon the contracts. Finally, an award of damages 

would obviously redress his injuries. 

III. 

 This brings us to the District of Columbia’s argument that 

Ord’s preenforcement and damages claims are too 

insubstantial to invoke federal court jurisdiction. Federal 

courts are “without power to entertain claims otherwise within 

their jurisdiction if [the claims] are ‘so attenuated and 

unsubstantial as to be absolutely devoid of merit.’” Hagans v. 

Lavine, 415 U.S. 528, 536 (1974) (quoting Newburyport 

Water Co. v. Newburyport, 193 U.S. 561, 579 (1904)). To 

warrant dismissal for insubstantiality, “claims [must] be 

flimsier than ‘doubtful or questionable’—they must be 

‘essentially fictitious.’” Best v. Kelly, 39 F.3d 328, 330 (D.C. 

Cir. 1994) (quoting Hagans, 415 U.S. at 536–37) (finding 

claim sufficiently substantial where plaintiffs had not 

“suggested any bizarre conspiracy theories, any fantastic 

government manipulations of their will or mind, any sort of 

supernatural intervention”). Although we have said that 

“[t]he Rule 12(b)(1) ‘substantiality’ doctrine is, as a general 

matter, reserved for complaints resting on truly fanciful 

factual allegations,” id. at 331 n.5, a legal claim may be so 

insubstantial as to deprive federal courts of jurisdiction if 

“prior decisions inescapably render the claims frivolous.” 

Hagans, 415 U.S. at 538. That said, “previous decisions that 

merely render claims of doubtful or questionable merit do not 

render them insubstantial.” Id. Thus, to qualify as 

insubstantial, a claim’s “unsoundness [must] so clearly 

result[] from the previous decisions of [the Supreme Court] as 
15 

to foreclose the subject and leave no room for the inference 

that the question sought to be raised can be the subject of 

controversy.” Ex parte Poresky, 290 U.S. 30, 32 (1933) 

(internal quotation marks omitted). The substantiality inquiry 

is, however, a separate question from whether a complaint is 

subject to dismissal under Federal Rule of Civil Procedure 

12(b)(6) for failing to state a claim on which relief may be 

granted. See, e.g., Hagans, 415 U.S. at 542; Bell v. Hood, 327 

U.S. 678, 682 (1946); Best, 39 F.3d at 331 & n.5. 

“Jurisdiction, therefore, is not defeated . . . by the possibility 

that the averments might fail to state a cause of action on 

which petitioners could actually recover.” Bell, 327 U.S. at 

682. 

Preenforcement Challenge 

 The District of Columbia contends that Ord’s 

preenforcement challenge is insubstantial because “under 

binding precedent, Ord has a Fourth Amendment claim as to a 

future arrest only if the invalidity of such an arrest is 

obvious.” Appellee’s Br. 12. In support, the District of 

Columbia relies on Michigan v. DeFillippo, 443 U.S. 31 

(1979), in which the Supreme Court held that an arrest for 

violating an ordinance later found to be unconstitutionally 

vague did not run afoul of the Fourth Amendment. The 

DeFillippo court reasoned that probable cause existed 

because, at the time of the arrest, the officer had a factual 

basis for concluding that the arrestee had violated the 

ordinance and the officer was not “required to anticipate that a 

court would later hold the ordinance unconstitutional.” Id. at 

37–38. Similarly, in Barwood, Inc. v. District of Columbia, 

202 F.3d 290, 294 (D.C. Cir. 2000), also relied on by the 

District, we concluded that arrests of taxicab drivers for 

violating an allegedly invalid D.C. law would not necessarily 

contravene the Fourth Amendment. The District of Columbia 

takes DeFillippo and Barwood to mean that “the mere 
16 

possibility that a court would hold as a matter of law” that 

Ord is exempt from the District’s firearms laws “clearly 

should not negate probable cause.” Appellee’s Br. 15. Thus, 

according to the District of Columbia, DeFillippo and 

Barwood make clear that Ord’s Fourth Amendment claim 

cannot succeed and thus “inescapably render [it] frivolous.” 

Hagans, 415 U.S. at 538. 

 We disagree that DeFillippo and Barwood foreclose all 

debate on Ord’s allegations. Neither decision addresses the 

precise question Ord raises: whether a warrant or arrest would 

lack probable cause where the responsible officer, knowing 

that the arrestee is exempt from the criminal statute, 

nonetheless files an affidavit in bad faith—an allegation we 

must take as true at this stage of the litigation. Indeed, unlike 

the issues addressed in DeFillipo and Barwood, the question 

here bears directly on the existence of probable cause, for it 

requires an inquiry into whether “facts and circumstances 

within the officer’s knowledge [could be] sufficient to warrant 

a prudent person, or one of reasonable caution, in believing, 

in the circumstances shown, that the suspect has committed, is 

committing, or is about to commit an offense.” DeFillipo, 

443 U.S. at 37. Moreover, even were we to agree with the 

District of Columbia that Ord’s allegations ultimately fail to 

state a Fourth Amendment claim—a question we leave for the 

district court to resolve in the first instance—that would 

provide no basis for finding that Ord’s claim is so 

insubstantial as to deprive the district court of jurisdiction. 

Damages Claim 

 We are equally unpersuaded by the District of 

Columbia’s argument that Ord’s claim for damages caused by 

the warrant is so insubstantial as to deprive the district court 

of jurisdiction. According to the District of Columbia, Ord’s 

claim is frivolous because he was never arrested. The Fourth 
17 

Amendment, D.C. insists, protects only against unreasonable 

“searches” and “seizures,” and “there is no seizure without 

actual submission.” Brendlin v. California, 551 U.S. 249, 254 

(2007). 

 To be sure, the Supreme Court often speaks of the Fourth 

Amendment exclusively in terms of “searches” and 

“seizures,” see, e.g., County of Sacramento v. Lewis, 523 U.S. 

833, 843 (1998), but none of those cases considered a claim, 

like the one at issue here, which alleges that the issuance of a 

warrant without probable cause may itself deprive a person of 

his liberty in violation of the Fourth Amendment. 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 him 

substantial injury. Cf. Albright v. Oliver, 510 U.S. 266, 277–

79 (1994) (Ginsburg, J., concurring) (suggesting that a 

criminal defendant facing pending prosecution remains 

“continually seized” after release from custody due, in part, to 

the travel restrictions and reputational and employment 

consequences that often flow from a criminal prosecution). 

Because neither Supreme Court nor D.C. Circuit case law 

forecloses the possibility that Ord’s allegations raise a 

constitutional issue, his damages claim is sufficiently 

substantial to confer federal jurisdiction. Although we leave 

open the question whether injury from the issuance of a 

warrant without arrest is cognizable under the Fourth 

Amendment, we are sure that Ord’s claim is neither 

“fictitious,” “fantastic,” nor “fanciful,” and thus that the 

district court has jurisdiction to entertain it. Best, 39 F.3d at 

330–31 (internal quotation marks omitted). 
18 

IV. 

 For the foregoing reasons, we reverse the dismissal of 

Ord’s claims and remand to the district court for further 

proceedings consistent with this opinion. 

So ordered. 
BROWN, Circuit Judge, dissenting in part: For more than 

a decade, this circuit has offered a wary allegiance to the 

imminence standard, first articulated in Navegar, Inc. v. 

United States, 103 F.3d 994, 998 (D.C. Cir. 1997). Today’s 

opinion labors to extend that line of cases, barring 

preenforcement claims for declaratory relief unless the 

plaintiff can show a threat of imminent prosecution, and thus 

denying access to Article III courts to District of Columbia 

litigants seeking vindication of civil rights claims—access 

they would have under applicable Supreme Court precedent. 

Whether Ord’s allegations meet Navegar’s stringent standard 

is a close question, but this controversy demonstrates why 

litigants should not be required to jump through such hoops to 

get past the courthouse door. Consequently, while I agree 

Ord has standing to bring his claim for damages under 42 

U.S.C. § 1983, and agree his claims are not so insubstantial as 

to deprive the federal courts of jurisdiction over them, I do 

not think we can or should strain to fit this case within 

Navegar’s standard based on the government’s belated 

concession. I do think the en banc court can and should 

rehear this appeal sua sponte and overrule Navegar. 

 

According to Ord’s complaint and affidavit, his security 

firm, Falken Industries, is licensed by the Metropolitan Police 

Department (MPD). Aff. ¶ 10. Using information Ord 

voluntarily provided to the MPD, the MPD and the D.C. 

Office of the Attorney General (OAG) arrested and jailed 

Ord’s employees in D.C. and obtained a warrant for Ord’s 

arrest. Compl. ¶ 19; Aff. ¶¶ 16–18, 20. MPD officers used 

the ruse of asking Ord to pick up his employee’s vehicle to try 

to lure him back into D.C. Aff. ¶ 19. When that failed, they 

staked out Falken’s Virginia office. Id. ¶¶ 24, 26. Ord had 

also seen a memorandum the MPD sent to its Reserve Corps 

Members warning them that Special Conservators of the 

Peace who were not government “employee[s]” under the 
2 

Law Enforcement Officers Safety Act of 2004 (LEOSA), 18 

U.S.C. § 926B(c), would be subject to all relevant criminal 

penalties for violating D.C.’s firearms laws. Compl. ¶ 18. 

Thus, Ord effectively was exiled from D.C. by his fear of 

being prosecuted if he ever returned. Aff. ¶ 30. 

Under Supreme Court doctrine, these facts would be 

more than sufficient to establish Ord’s standing under Article 

III to bring a claim under the Declaratory Judgment Act 

(DJA), 28 U.S.C. § 2201. As the Supreme Court repeatedly 

has confirmed, “where threatened action by government is 

concerned, we do not require a plaintiff to expose himself to 

liability before bringing suit to challenge the basis for the 

threat . . . . The plaintiff’s own action (or inaction) in failing 

to violate the law eliminates the imminent threat of 

prosecution, but . . . does not eliminate Article III 

jurisdiction.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 

118, 128–29 (2007) (emphasis omitted). Thus, the District’s 

decision to declare a nolle prosequi, and thereby to eliminate 

the threat of imminent prosecution, would be no impediment 

to Ord’s standing under Supreme Court standards. 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. 

There are, of course, sensible constraints on litigants’ 

access to federal courts. Even in suits seeking declaratory or 

injunctive relief, federal courts have jurisdiction only if there 

exists an actual case or controversy. U.S. CONST. art. III, § 2. 

These “constitutional boundaries” are “measure[d] through 

the application of standing, mootness, and ripeness 

doctrines.” Worth v. Jackson, 451 F.3d 854, 857 (D.C. Cir. 

2006). The doctrine at issue here, standing, requires the 

plaintiff to establish an injury-in-fact that is fairly traceable to 

the challenged conduct and that will likely be redressed by a 
3 

favorable decision on the merits. See Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560–61 (1992). The injury, in turn, 

must be “distinct and palpable,” not “abstract,” “conjectural,” 

or “hypothetical.” Allen v. Wright, 468 U.S. 737, 751 (1984) 

(internal quotation marks omitted). And even when these 

constitutional criteria are met, standing may be denied on 

prudential grounds where, for example, the plaintiff seeks to 

raise another person’s legal rights or seeks to adjudicate a 

mere generalized grievance. See Elk Grove Unified Sch. Dist. 

v. Newdow, 542 U.S. 1, 12 (2004). These limitations ensure 

federal courts are not “‘called upon to decide abstract 

questions of wide public significance even though other 

governmental institutions may be more competent to address 

the questions and even though judicial intervention may be 

unnecessary to protect individual rights.’” Id. (quoting Warth 

v. Seldin, 422 U.S. 490, 500 (1975)). But these limitations do 

not exist to give law enforcement agencies carte blanche to 

violate individual rights. 

There is nothing unique about suits brought under the 

DJA that requires a special jurisdictional analysis. See

Franchise Tax Bd. of California v. Constr. Laborers Vacation 

Trust, 463 U.S. 1, 17 (1983) (DJA “was intended to affect 

only the remedies available in a federal district court, not the 

court’s jurisdiction”). As the Supreme Court has long made 

clear, if a plaintiff has been placed “between the Scylla of 

intentionally flouting state law and the Charybdis of forgoing 

what he believes to be constitutionally protected activity in 

order to avoid becoming enmeshed in a criminal proceeding,” 

he has suffered an injury sufficient to establish standing to 

seek declaratory relief without “first expos[ing] himself to 

actual arrest or prosecution.” Steffel v. Thompson, 415 U.S. 

452, 462 (1974). All that is required is that the threat of 

prosecution be “credible”—as it would be with any regularly 

enforced statute—rather than “imaginary or speculative” as 
4 

would be the case if a statute were obsolete and never 

enforced. Babbitt v. United Farm Workers Nat’l Union, 442 

U.S. 289, 298 (1979) (internal quotation marks omitted). 

Although Navegar purported to rely on the standard 

articulated in United Farm Workers, it actually grafted an 

imminence requirement onto the credible threat standard 

seemingly from whole cloth. See Navegar, 103 F.3d at 998 

(citing United Farm Workers, 442 U.S. at 298–99, but 

referring to a “threat of prosecution . . . which is credible and 

immediate” and a “credible threat of imminent prosecution” 

(emphasis added)). Of course, United Farm Workers and 

Navegar are distinguishable but those differences do not 

account for Navegar’s divergence. United Farm Workers

was the product of a lengthy evolution. The Supreme Court’s 

doctrine began to take shape in Poe v. Ullman, 367 U.S. 497, 

509 (1961) (plurality), where the Court denied standing to 

plaintiffs seeking a declaration that a state law, which 

prohibited contraceptives but had not been enforced in 

decades, was unconstitutional. The Court explained, “the 

mere existence of a state penal statute . . . constitute[s] 

insufficient grounds to support a federal court’s adjudication 

of its constitutionality . . . if real threat of enforcement is 

wanting.” Id. at 507. 

The Court reached the opposite result in Doe v. Bolton, 

410 U.S. 179, 188 (1973), holding physicians had standing to 

challenge a criminal abortion statute even though none of 

them had “been prosecuted, or threatened with prosecution, 

for violation” of the law. Unlike the obsolete statute in Poe, 

here the statute was “recent and not moribund.” Doe, 410 

U.S. at 188. Finding the statute, if enforced, would “directly 

operate” against the plaintiffs, the Court held they could sue 

immediately rather than waiting for “a criminal prosecution as 

the sole means of seeking relief.” Id. The statute’s mere 
5 

existence constituted “a sufficiently direct threat of personal 

detriment.” Id.

The following year, in Steffel, the Court held a plaintiff 

who wished to distribute handbills protesting American 

involvement in Vietnam had standing to seek a declaration 

that the state law prohibiting such conduct was 

unconstitutional. 415 U.S. at 459. Because the plaintiff had 

been told by police that continuing to ignore their warnings 

would likely lead to prosecution, the plaintiff’s fears were not 

“imaginary or speculative.” Id. (internal quotation marks 

omitted). Thus, it was “not necessary that [the plaintiff] first 

expose himself to actual arrest or prosecution to be entitled to 

challenge a statute that he claims deters the exercise of his 

constitutional rights.” Id. at 459. 

These principles coalesced in United Farm Workers

where the Court held plaintiffs have preenforcement standing 

when they have “alleged an intention to engage in a course of 

conduct arguably affected with a constitutional interest, but 

proscribed by a statute, and there exists a credible threat of 

prosecution thereunder.” 442 U.S. at 298. The Court held the 

plaintiffs had standing to challenge a state criminal law 

prohibiting certain union practices because, although the 

“criminal penalty provision ha[d] not yet been applied,” “the 

State ha[d] not disavowed any intention of invoking the . . . 

provision against unions that commit unfair labor practices.” 

Id. at 302. 

Clearly, Navegar’s imminence requirement is not derived 

from United Farm Workers. Instead, its language seems to 

echo the injury-in-fact element of standing—requiring “an 

invasion of a legally protected interest that is . . . ‘actual or 

imminent.’” Navegar, 103 F.3d at 998 (quoting Lujan, 504 

U.S. at 560–61). As the Navegar court perceived the axis 
6 

between injury and enforcement, the terms are near 

synonyms. That may be because standing and ripeness tend 

to merge in preenforcement challenges to criminal statutes. 

Perhaps, then, the Navegar court believed that if a plaintiff 

seeking to challenge a criminal statute does not face an 

“actual” prosecution, he must at least face an “imminent” one. 

However, by erroneously conflating a plaintiff’s injury and 

the government’s prosecution, Navegar ignored the injurious 

effect of the mere existence of a regularly enforced statute 

that prohibits conduct a plaintiff believes is protected. 

Requiring a threat of imminent prosecution also ignores the 

injurious effect of other types of government coercion, such 

as harassment and intimidation. The Supreme Court has 

repeatedly made clear the DJA was designed to provide relief 

in precisely such circumstances. See, e.g., Steffel, 415 U.S. at 

462–63. Standing exists because the plaintiff’s abstention is 

itself an actual injury, regardless of whether a prosecution is 

imminent. See Poe, 367 U.S. at 508 (noting that a plaintiff 

has preenforcement standing when his “compliance with the[] 

statutes is []coerced by the risk of their enforcement”). 

In the decade since it was decided, we have repeatedly 

expressed grave misgivings about Navegar. We have noted 

that Navegar’s analysis is in “sharp tension with standard 

rules governing preenforcement challenges to agency 

regulations” and freely admit it is contrary to our cases 

“upholding preenforcement review of First Amendment 

challenges to criminal statutes.” Seegars v. Gonzales, 396 

F.3d 1248, 1253–54 (D.C. Cir. 2005). We have said (and the 

court says again today) Navegar appears to demand more 

than the credible threat the Supreme Court found sufficient in 

United Farm Workers. See Parker v. District of Columbia, 

478 F.3d 370, 375 (D.C. Cir. 2007), aff’d in part sub nom.

District of Columbia v. Heller, 128 S. Ct. 2783 (2008); Op. at 

7. In Parker, we were even more forthright, noting the 
7 

Supreme Court’s decision in Virginia v. American 

Booksellers Ass’n, 484 U.S. 383 (1988), “held it sufficient for 

plaintiffs to allege ‘an actual and well-founded fear that the 

law will be enforced against them,’ . . . without any additional 

requirement that the challenged statute single out particular 

plaintiffs by name.” Parker, 478 F.3d at 375 (quoting Am. 

Booksellers, 484 U.S. at 393 (internal citation and footnote 

omitted)). We noted: “In both United Farm Workers and 

American Booksellers, the Supreme Court took a far more 

relaxed stance on pre-enforcement challenges than Navegar

and Seegars permit.” Id.

MedImmune can now be added to the list of Supreme 

Court cases conflicting with Navegar. Navegar reasons that 

“a credible threat of imminent prosecution can injure the 

threatened party by putting her between a rock and a hard 

place[:] . . . either forego possibly lawful activity because of 

her well-founded fear of prosecution, or willfully violate the 

statute.” Navegar, 103 F.3d at 998. But MedImmune makes 

clear that this dilemma exists even before the threatened 

prosecution becomes imminent. A plaintiff may “eliminate[] 

the imminent threat of harm by simply not doing what he 

claimed the right to do,” but will still have preenforcement 

standing “because the threat-eliminating behavior was 

effectively coerced.” MedImmune, 549 U.S. at 129. Indeed, 

“[t]he dilemma posed by that coercion—putting the 

challenger to the choice between abandoning his rights or 

risking prosecution—is ‘a dilemma that it was the very 

purpose of the Declaratory Judgment Act to ameliorate.’” Id.

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967)). 

Thus, failing to violate the statute, or, as in this case, 

convincing the government to suspend its enforcement action, 

eliminates the imminent threat but not Article III jurisdiction. 
8 

Navegar’s conflict with Supreme Court doctrine 

notwithstanding, the court strains—unpersuasively in my 

view—to fit this case within its standard. The court bases its 

conclusion that “Ord’s allegations support his standing under 

Navegar” on the District’s “concession” that “‘Ord’s 

allegations that the District applied for an arrest warrant 

against him [are] sufficient to show . . . a special priority.’” 

Op. at 9–10 (quoting Appellee’s Br. 24) (alterations in 

original). But, by issuing a warrant, arresting Ord’s 

employees, and following Ord to another jurisdiction, the 

authorities already had passed that threshold. The concession 

adds nothing. 

Navegar speaks of requiring a “credible threat of 

imminent prosecution,” not merely a showing that the 

authorities have placed a special priority on enforcing the law 

against the plaintiff. 103 F.3d at 998. True, in Parker and 

Seegars, we emphasized that the plaintiffs had not been 

singled out for prosecution and relied on that fact to hold their 

allegations of standing insufficient under Navegar. See 

Parker, 478 F.3d at 375; Seegars, 396 F.3d at 1255–56. But 

while this means it is necessary to show special targeting to 

establish standing under Navegar, it does not necessarily 

mean such a showing is sufficient. Indeed, the district court 

reasonably read Navegar to demand special targeting plus 

imminence, and noted that once the warrant was nullified, 

there was no longer “‘a threat of prosecution reaching the 

level of imminence required by Navegar.’” Ord v. District of 

Columbia, 573 F. Supp.2d 88, 95 (D.D.C. 2008) (quoting 

Seegars, 396 F.3d at 1255). By contrast, the court concludes 

that plaintiffs meet the Navegar “credible and imminent” 

standard by demonstrating that “their prosecution results from 

a special law enforcement priority, namely that they have 

been ‘singled out or uniquely targeted by the . . . government 
9 

for prosecution.’” Op. at 7 (quoting Parker, 478 F.3d at 375 

(alteration in original)). 

Navegar’s analysis began with an observation: “whether 

a threat of prosecution adequate to satisfy the requirements of 

justiciability is present in any particular preenforcement 

challenge is a factual and case-specific” determination, 

requiring courts to “look to a variety of factors.” 103 F.3d at 

999. The court then explained, “[t]he most important 

circumstance . . . [here] is that the Act in effect singles out the 

appellants as its intended targets.” Id. at 1000. Thus, the fact 

that the plaintiffs had been “single[d] out” was simply one 

factor, albeit a significant one. See also id. at 1001 (noting, 

with respect to the second part of the statute, that “[i]n the 

absence of this factor, the threat of prosecution becomes far 

less imminent”). The court proceeded to uphold the 

plaintiffs’ standing by examining the unique factual 

circumstances and drawing a connection between the 

targeting in the statute and the existence of a threat of 

imminent prosecution. See id. at 1000–01. It was the whole 

constellation of events—the specificity of the statute, the 

agents’ visits to the manufacturing facility, and the ongoing 

“pro-enforcement activities”—that convinced the court the 

government would not “sit idly by” if the statute was violated. 

Id. at 1000. But what if the government had pledged to sit 

idly by? 

Here, it is obvious—even without the District’s 

“concession”—that the MPD has, in some sense, “targeted” 

or “singled out” Ord by obtaining a warrant for his arrest. 

But it does not follow that Ord faces a threat of imminent 

prosecution. The court finds that the District’s “concession 

signals that it expects to prosecute [Ord] in the future.” Op. at 

10. Even assuming this is a valid inference, an expectation of 

future prosecution is not even remotely the same as a threat of 
10 

imminent prosecution. Ord currently is abstaining from 

reentering D.C. with a firearm. See Aff. ¶ 30. Of course, the 

court is correct in finding that Ord has alleged a desire to 

reenter D.C. with his firearm, see Op. at 12–13, and no doubt 

he would do so if he did not fear that a criminal prosecution 

would result. But we cannot say here, as we said in Navegar, 

that “if these provisions of the statute are enforced at all, they 

will be enforced against th[is] appellant[].” 103 F.3d at 1000. 

Under the status quo, not only does Ord not face a threat of 

imminent prosecution, but in light of the nolle prosequi and 

his decision to avoid reentering D.C. with a firearm, he faces 

a certainty of no prosecution. Is it absurd that Ord lacks 

standing to challenge a law merely because the prosecutors 

decided at the last moment to nullify the warrant for his 

arrest? Yes, but such is the result of our doctrine. 

The court attempts to rehabilitate Navegar by asserting 

that, because Ord’s “injury is imminent,” he has satisfied the 

Navegar standard. Op. at 12. I accept the premise, but not 

the conclusion. If an imminent injury were all Navegar

required, it would be on all fours with Supreme Court 

doctrine. See Lujan, 504 U.S. at 560 (injury-in-fact must be 

“actual or imminent”). Instead, Navegar requires a threat of 

imminent prosecution. 103 F.3d at 998. Thus, while Ord’s 

“inability to travel to D.C. and carry on his security business 

here while armed without fear of prosecution,” Op. at 12, 

would establish his injury-in-fact under Supreme Court 

standards, it is beside the point under Navegar. Only by 

redefining the word “imminent” beyond recognition is the 

court able to conclude that Ord faces a threat of imminent 

prosecution. While the court’s willingness to read 

“imminence” out of our precedents on a case-by-case basis 

may occasionally benefit plaintiffs whose standing would be 

indisputable under Supreme Court standards, such an ad hoc 
11 

approach provides no guidance to lower courts and no 

certainty to litigants.1

Not only does Navegar conflict with Supreme Court 

doctrine, but our reliance on it has anomalous and injurious 

practical consequences. A prosecution is unlikely to be 

imminent if individuals refrain from violating the law out of 

fear of prosecution. Yet, even under the court’s reading of 

Navegar, individuals only have preenforcement standing if 

they come close enough to violating the law to become 

“singled out” or “uniquely targeted” by law enforcement. See

Op. at 7. And if they do violate the law, declaratory relief in 

federal court becomes unavailable as soon as the government 

initiates a prosecution. See Younger v. Harris, 401 U.S. 37, 

40–41 (1971); see also Samuels v. Mackell, 401 U.S. 66, 73 

(1971) (extending Younger to declaratory relief); JMM Corp. 

v. District of Columbia, 378 F.3d 1117, 1125 (D.C. Cir. 2004) 

(treating D.C. as a state for purposes of Younger abstention). 

However, as the Supreme Court has made clear, the DJA was 

designed to provide “‘an alternative to pursuit of the arguably 

 

1

 The court contends that Navegar “makes clear that . . . a special 

priority is sufficient to establish imminence.” Op. at 11. To the 

contrary, any such mechanical and inflexible rule would have 

contravened Navegar’s opening remark that preenforcement 

standing analysis is “factual and case-specific” and involves “a 

variety of factors.” 103 F.3d at 999. The singling out of the 

Navegar plaintiffs in the text of the statute was strong evidence 

they faced a threat of imminent prosecution; but Navegar did not 

suggest that every time someone is singled out by law enforcement 

officers he is transformed automatically into a plaintiff with 

preenforcement standing, regardless of other circumstances. In any 

event, by now requiring, in effect, “a credible threat of specially 

prioritized prosecution,” the court continues to mold our doctrine 

around the peculiar facts of the cases that come before us, rather 

than simply applying the straightforward doctrine developed by the 

Supreme Court. 
12 

illegal activity.’” MedImmune, 549 U.S. at 129 (quoting 

Steffel, 415 U.S. at 480 (Rehnquist, J., concurring)). Navegar

essentially nullifies this Congressional intent. 

An even more pernicious effect of Navegar’s imminence 

requirement is that it places access to preenforcement relief 

entirely in the hands of the government. As the court below 

explained, “[a]t first glance,” the fact that the MPD obtained a 

warrant for Ord’s arrest “seems to establish that the threat of 

prosecution against Ord is not imaginary or speculative.” 

Ord, 573 F. Supp.2d at 94 (internal quotation marks omitted). 

However, the district court correctly found that after “the 

Office of the Attorney General declared a nolle prosequi of 

the Information in support of the warrant,” the warrant ceased 

to have effect and the threat of prosecution ceased to be 

imminent. Id. at 94–95. In effect, Navegar’s imminence 

requirement gave the government a “pocket veto” over Ord’s 

effort to seek preenforcement relief. Amici Br. 13. Even here 

on appeal, the court only finds Navegar satisfied by relying 

on a concession in the District’s brief. See Op. at 9–10. 

Thus, both the district court and this court agree that, under 

Navegar, a plaintiff’s standing depends on the affirmative 

actions of the prosecuting authorities. Our doctrine thereby 

enables the government to deprive a plaintiff of 

preenforcement standing simply by being silent or 

deliberately vague about its intentions. Unless declaratory 

relief is available, prosecutors can act strategically to protect 

criminal laws or arbitrary enforcement procedures from 

judicial review. That is essentially what happened here. The 

District avoided a judicial decision about the validity of its 

interpretation of LEOSA by withdrawing its warrant without 

throttling back the level of threat. Were we content to follow 

the Supreme Court’s doctrine, we would simply ask whether 

Ord’s current compliance with D.C. law has been effectively 

coerced by his reasonable fear that he would be prosecuted if 
13 

he reentered D.C. with a firearm. See MedImmune, 549 U.S. 

at 129. We would answer this question in the affirmative 

without being distracted by the District’s “evolving” litigation 

stratagems. See Op. at 9. 

It is long past time to recognize Navegar’s flaws and 

articulate a preenforcement standing doctrine consistent with 

decades of Supreme Court precedent. There can be no valid 

jurisprudential rationale for prolonging error. Stare decisis is 

an enduring principle, but it was never intended to preserve 

mistakes, like an insect in amber, and prevent them from ever 

being corrected. To borrow a trope from Theodore 

Roosevelt: “Nine-tenths of wisdom consists in being wise in 

time.” In that spirit, I urge the court to rehear this appeal en 

banc and overrule Navegar.