Justice Denied: Gura Files Renewed Petition for Mandamus in Palmer "Right to Bear" case

On May 6th, about six months after Alan Gura filed a petition for a writ of mandamus in the long delayed Palmer v. District of Columbia case, he filed for a renewal of the writ.

The Palmer case is a basic right to carry case against the District of Columbia, which is the only jurisdiction in the United States that categorically denies any legal ability to carry a firearm outside of the home for legal self defense.  The case was originally filed on August 6th, 2009, so the case has been pending for nearly five years; an incredible delay of justice.   A writ of mandamus would be an order from the appeals court to the lower court to issue a ruling.  Alan Gura's renewed request is more strongly worded than the original.  I have copied it here, but the formatting may not be exactly the same.  Those who wish to view the original PDF file can download it at this link:

RENEWAL OF PETITION FOR WRIT OF MANDAMUS
RELIEF SOUGHT

Pursuant to 28 U.S.C. § 1651, and to this Court’s order of December
16, 2013, Tom G. Palmer, Amy McVey, George Lyon, Edward
Raymond, and Second Amendment Foundation, Inc. (“SAF”)
respectfully renew their petition to this Court seeking a writ of
mandamus in aid of the Court’s appellate jurisdiction, directing the
United States District Court for the District of Columbia to decide the
cross-dispositive motions pending since October 6, 2009 in
Petitioners’ case below, Palmer v. District of Columbia, No. 09-1482.

ARGUMENT

Nearly six months ago, this Court denied the original petition for
mandamus “without prejudice to renewal,” on the theory 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.” Order,
Dec. 16, 2013.

Petitioners disagree that the delay in this case, on December 16,
2013, was not egregious or unreasonable. The delay was both, and extended deep beyond this Court’s normal threshold for mandamus
relief. In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C.
Cir. 2004) (“[t]his court has stated generally that a reasonable time for
an agency decision could encompass ‘months, occasionally a year or
two, but not several years or a decade.’”) (quoting MCI
Telecommunications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980))
(other quotation omitted).

But that was then. Over six months having passed since the
petition’s filing, the delay’s persistence is positively unconscionable. In
seeking mandamus, Petitioners stressed “the public’s interest in
knowing that the courts are responsive to serious claims of
constitutional injury.” Pet. 23. This delay is not escaping the public’s
attention.

As Petitioners noted, they need not establish that impropriety
underlies the district court’s failure to decide this case, id., although
Petitioners suppose that had the district court thought that their rights
are being violated, it would have acted long ago. For their part, courts
have an interest in avoiding an appearance of impropriety. Judging by
the public response to the delay, that interest is implicated here.

2USCA Case #13-5317
Document #1491654
Filed: 05/06/2014

Page 4 of 8

Many people fervently believe that the District of Columbia is
denying them a dearly-cherished fundamental constitutional right, to
the detriment of their physical safety and that of their loved ones.
Cases involving this issue have been decided through the appellate
level—sometimes in favor of individual claimants—in far less time than
that which the district court below has sat on this case. See, e.g., Peruta
v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014); Moore v.
Madigan, 702 F.3d 933 (7th Cir. 2012).

It thus appears difficult for commentators to shake the suspicion
that the delay—extending well-beyond normal for any kind of case, let
alone a factually undisputed priority civil rights case—is calculated.
“Dragging out the case . . . appears to be a deliberate attempt by lower
courts to leave intact this infringement on a fundamental right.” Emily
Miller, Justice delayed is justice denied - Appeal for decision on D.C.’s
gun carry-rights ban, Washington Times, Oct. 23, 2013, available at
http://www.washingtontimes.com/news/2013/oct/23/miller-justice-
delayed-justice-denied-appeal-decis/ (last visited May 5, 2014).

Judge Scullin . . . apparently has no desire to rule on what would obviously be another high-profile case involving that inconvenient, “embarrassing” Second Amendment.

3USCA Case #13-5317
Document #1491654
Filed: 05/06/2014

Page 5 of 8

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. * * * [T]his 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.

Ilya Shapiro, Justice Delayed Is Justice Denied, Cato At Liberty, Dec.
18, 2013, available at http://www.cato.org/blog/four-years-too-long-
wait-ruling-constitutional-claim (last visited May 5, 2014).

Adds Prof. Blackman,

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.

Josh Blackman, D.C. Circuit Denies Mandamus Petition in 2nd
Amendment Case Pending Since 2009, Dec. 18, 2013, available at
http://joshblackman.com/blog/2013/12/18/d-c-circuit-denies-mandamus-petition-in-2nd-amendment-case-pending-since-2009/ (last visited May
5, 2014).

These are difficult words to read about the handling of a case in our
judicial system, but under the circumstances, they are predictable. How long must Petitioners wait for a decision here? Another six months? Another year? “Four more years” is the maximum that voters may constitutionally give a sitting President, not what individuals should endure in seeking relief from a violation of their fundamental rights.  Petitioners should not, echoing Jarndyce v. Jarndyce, wait a lifetime seeking vindication of a right meant to defend their lives. Would a four and a half year delay be tolerated in the context of any other fundamental right? Had Petitioners challenged an abortion ban, would this Court accept the district court’s failure to decide the case for four and a half years? If not, why should that delay be tolerated here? Petitioners’ fundamental constitutional rights are being violated.  The city denies Petitioners’ Second Amendment rights, and the district court denies their rights to due process and to access the courts—this Court and, if need be, the Supreme Court. The writ of mandamus exists to remedy the latter violation.

CONCLUSION

Petitioners have paid their filing fee. They have followed all the
relevant deadlines and done what they are supposed to do. They—and
the public—are entitled to a decision in this case. And it is
fundamentally unfair to ask that they continue waiting for that
decision in the absence of a writ of mandamus.

The writ should issue.

Dated: May 6, 2014

Respectfully submitted,
Alan Gura
GURA & POSSESSKY, PLLC
105 Oronoco Street, Suite 305
Alexandria, VA 22314
703.835.9085/703.997.7665
By:
/s/ Alan Gura
Alan Gura
Counsel for Petitioners

As of July 5th, the court has still not ruled on the renewed request for a writ of Mandamus.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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