Dec 18, 2013

Posted in Uncategorized

D.C. Circuit Denies Mandamus Petition in 2nd Amendment Case Pending Since 2009

In the aftermath of District of Columbia v. Heller, several Second Amendment suits were filed across the country, including Palmer v. District of Columbia in D.D.C. This case concerns the District of Columbia’s ban on carry permits outside the home. Recall that the 7th Circuit struck down a similar ban in Chicago. This case has now been pending for four years without a resolution of motions for summary judgment. And now, the D.C. Circuit has denied mandamus.

I have embedded below the Petition from Alan Gura (whom I have co-authored an article with), and the docket begins on page 36. Here is the rough sequence of events. This case was first filed on August 6, 2009. Summary judgment was filed on August 26, 2009. There was a hearing on 1/22/10, and the matter was taken under advisement. Then, on July 18, 2011, eighteen months later (!), Chief Justice John Roberts reassigned the case from Judge Henry. H. Kennedy to Judge Frederick J. Scullin, Jr. of the Northern District of New York. Why? Because of the delay!? There was a status conference on July 22, 2011. There was a motion hearing scheduled for 8/29/2012 , which was then rescheduled for 10/1/12 (a full year later?!). Matters were taken under advisement. A motion to expedite was filed on 8/9/13 (another year later?!). And that’s it.

This case has been pending for four years. Four years! An important constitutional decision that has already been resolved by another Circuit court has not even made it past summary judgment.

On October 21, 2013, Gura sought mandamus in the D.C. Circuit.

On December 16, 2013, Mandamus was denied by the D.C. Circuit:

BEFORE: Henderson, Brown, and Srinivasan, Circuit Judges O RDE R

Upon consideration of the petition for a writ of mandamus, it is

ORDERED that the petition for a writ of mandamus be denied without prejudice to renewal. Petitioners have not shown that the district court’s delay in ruling on the pending cross-motions for summary judgment is so egregious or unreasonable as to warrant the extraordinary remedy of mandamus at this time. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988); cf. Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 79-81 (D.C. Cir. 1984). We are confident that the district court will act on the motions as promptly as its docket permits.

Four years is “egregious.” It is “unreasonable.” There is absolutely no reason why such an important constitutional decision is still pending. This is a significant constitutional issue, the resolution of which could create a Circuit Split, and lead to Supreme Court review. This is embarrassing. I hope this is the magnum opus of Second Amendment opinions, because with all this time to work on it, it better be.

UpdateIlya Shapiro, my other co-author in the same article as Gura, opines at Cato@Liberty:

Not “unreasonable”?! This case has now been pending for than two years before the current judge – after spending two years before a different judge – who’s had the full briefing papers from the beginning and held a hearing 14 months ago. In the time since this lawsuit was filed, several other similar cases have produced circuit court (appellate) rulings in Second Amendment-related cases, and the Supreme Court has considered cert petitions in many of those. And yet, here a district court has not ruled at all as to whether there’s any right to bear arms at all.

I’m sorry to say that I’m much less confident than is the D.C. Circuit that Judge Scullin will act promptly. He’s had plenty of time (as did Judge Kennedy before him) but apparently has no desire to rule on what would obviously be another high-profile case involving that inconvenient, “embarrassing” Second Amendment.

But the implications of this delay go well beyond the Second Amendment. What does the inability to reach a ruling in Palmer v. District of Columbia mean for the right to access the courts? If the government prosecutes someone for violating a challenged law, they don’t wait four years in incarcerating you. What are civil rights lawyers supposed to tell their client? That federal courts don’t think that certain claims are important enough to even bother ruling on?

This is a significant constitutional issue involving an outright ban of an enumerated right. If Judge Scullin wants to write some cute opinion that says that D.C.’s ban is just a time-place-manner regulation – e.g., you don’t have absolute freedom of speech, everywhere, all the time – the place being Washington and the time being always, let him do that. Alan Gura will then get on with his appeal.

In the meantime, this is a black eye on the judiciary. Judges dismiss meritless lawsuits all the time, so the only conclusion we can draw here is that the district court knows that there’s no way to square D.C.’s law with the Constitution but doesn’t want to say so.

And I understand that shortly after CJ Roberts reassigned the case, Judge Kennedy retired. But still at that time, he was sitting on the case for 18 months with no decision!

Petition for a writ of Mandamus in Palmer v. District of Columbia by Josh Blackman

Palmer v. District of Columbia ORder by Josh Blackman

Print Friendly