Rhonda Ezell, et al v. Virginia Kendall
Filing
Filed Nonprecedential Disposition PER CURIAM. We DENY the petition for mandamus without prejudice to refiling should it become necessary. Michael S. Kanne, Circuit Judge; Ilana Diamond Rovner, Circuit Judge, concurring and Diane S. Sykes, Circuit Judge. [6823625-1] [6823625] [17-1443]
Case: 17-1443
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Filed: 03/06/2017
Pages: 4
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
March 6, 2017
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐1443
IN RE:
RHONDA EZELL, et al.,
Petitioners.
Petition for Writ of Mandamus
from the United States District Court
for the Northern District of Illinois,
Eastern Division.
No. 10 C 5135
Virginia M. Kendall,
Judge.
O R D E R
The plaintiffs seek a writ of mandamus to enforce their right to the relief
mandated in our most recent decision in this matter. See Ezell v. City of Chicago (“Ezell II”),
846 F.3d 888 (7th Cir. 2017). In Ezell II we invalidated, on Second Amendment grounds,
three Chicago regulations governing the siting and operation of firing ranges:
(1) Section 17‐5‐0207 of the Chicago Municipal Code, which permits firing ranges only in
manufacturing districts with a special‐use permit; (2) Section 17‐9‐0120, which bars a
firing range from locating within 100 feet of another range or within 500 feet of any
district that is zoned for residential use or planned residential use, or any preexisting
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school, day‐care facility, and multiple other uses; and (3) Section 4‐151‐100(d), which
prohibits anyone under age 18 from entering a firing range. Id. at 891, 898. Our decision
concluded with the mandate language typically used in this situation: We remanded and
directed the district court to issue an injunction “consistent with this opinion.” Id. at 898.
Ezell II was released on January 18, 2017. Although we could have stayed the
mandate to give the City a period of time to promulgate new regulations to replace the
unconstitutional provisions, see Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), we
did not do so.
That was not an oversight. Unlike in Moore v. Madigan, here there was no reason
to stay the mandate. By way of brief explanation, Moore was a Second Amendment
challenge to an Illinois law prohibiting the carrying of firearms outside the home. A
panel of this court struck down the law but stayed the issuance of the mandate for
180 days to give state authorities time to fill the regulatory gap with a permitting system
to govern the carrying of firearms outside the home. Id.
The situation here is very different. As a consequence of the City’s regulatory
regime, Chicago has no publicly accessible firing ranges at present. Ezell II, 846 F.3d at
890; see also Ezell v. City of Chicago (“Ezell I”), 651 F.3d 684, 690–92 (7th Cir. 2011). Firing
ranges do not open overnight. Myriad practical considerations and the current state of
the City’s regulatory scheme ensure that it will be some time before any range operator
approaches the City with a viable proposal to open a firing range. As clearly explained in
our opinion, the invalidation of the manufacturing‐district and buffer‐zone restrictions
puts “the ball squarely in the City’s court to decide which districts it will now open to
firing ranges and on what terms.” Ezell II, 846 F.3d at 894. Moreover, the City has “a host
of [additional] regulations to guard against environmental and fire hazards and
otherwise ensure that shooting ranges will be properly constructed, maintained, and
operated.” Id. at 895–96. Under these circumstances, the temporary regulatory vacuum
created by the invalidation of these three regulations entails none of the exigencies that
justified the decision to stay the mandate in Moore v. Madigan.
The City knows all this. Still, when our mandate issued on February 9, the City
asked the district judge to stay for 180 days the effective date of “any injunction and
judgment” issued in compliance with the mandate in order to allow it to research and
enact new zoning rules to replace the unconstitutional provisions. The judge set a
briefing schedule on the motion, to be followed by a status conference on April 25, 2017.
That precipitated the present mandamus petition. The plaintiffs claim a present
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enforceable right to the entry of judgment consistent with the mandate without further
delay.
“The mandate rule requires a lower court to adhere to the commands of a higher
court on remand.” United States v. Polland, 56 F.3d 776, 777 (7th Cir. 1995). Our mandate
is straightforward and requires the district court to enter a simple judgment enjoining
the three invalid regulations. That has not yet occurred. “One of the less controversial
functions of mandamus is to assure that a lower court complies with the spirit as well as
the letter of the mandate issued to that court by a higher court.” In re Continental Ill. Sec.
Litig., 985 F.2d 867, 869 (7th Cir. 1993). An appellate mandate directing the district court
to enter an injunction gives the prevailing party an enforceable right to that relief; once
the mandate issues, the district court has a plain legal duty to enter a conforming
judgment without undue delay. Indep. Nail & Packing Co., Inc. v. Perry, 214 F.2d 670, 672–
73 (7th Cir. 1954). Staying the effective date over the objection of the prevailing party in
order to give the losing party extra time to adjust its affairs violates that plain legal duty
and the prevailing party’s rights and may be remedied by mandamus. Id. “Where a
lower court has failed to comply with a mandate of a reviewing court, compliance with
such mandate may be compelled by writ of mandamus.” Id. at 673.
So mandamus may be used to enforce compliance with our mandate. The present
petition, however, is premature. The plaintiffs have not yet asked the district court to
enter the judgment to which they are entitled. Although no rule expressly requires a
formal motion to that effect—the district court has a legal duty to comply with the
mandate—proceeding directly to mandamus without first asking the district court to
perform its duty is irregular and blindsides the district judge.
With these clarifications, we deny the petition for mandamus without prejudice to
refiling should it become necessary, “though we trust that it will not be necessary.” Lake
Shore Asset Mgmt. Ltd. v. Commodity Futures Trading Comm’n, 511 F.3d 762, 763 (7th Cir.
2007).
PETITION DENIED.
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ROVNER, J., Circuit Judge, concurring. I concur in the result. A request for a writ
of mandamus is premature. The remedy of mandamus is a drastic and extraordinary
one. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004). This court can issue a writ of
mandamus only if the party requesting the writ has no other adequate means to attain
the relief requested. Id. We do not know whether the plaintiffs have any other adequate
means of relief because they have never asked the district court for any relief at all. The
district court has not received any input from either party regarding the substance of an
injunction, whether it should be stayed while the City revises its zoning regulations, and,
if so, for how long. It is not at all clear to me that there is one obvious path or form of the
injunction, and it is neither aberrant nor an abuse of discretion for a district court to seek
input from the parties before issuing an injunction upon remand from an appellate
court. It is, however, outside the norm for this court to prejudge a matter before the
district court has had the opportunity to consider it, and for that reason a writ of
mandamus is not an appropriate remedy here.
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