Why is that that, just last month, Judge Snow granted a Preliminary Injunction for Arizona residents who sued a branch of government (the executive) for an alleged constitution deprivation (First Amendment) but won't grant our blogger the same? Our blogger is also suing a branch of government (the judicial) for an actual constitutional deprivation (Second Amendment). One would think if our dumb pro se's motion was so refutable it would have been an easy matter for Judge Snow to refute at least a part of it.
So what to make of Judge Snow's short order? While you cannot make an argument from silence, our blogger thinks Judge Snow's silence will make it easier to refute him in an Emergency Interlocutory Appeal to the Ninth's Motion Panel, which is planned next. (Notice of Appeal filed today.) It turns out that Judge Snow overlooked a very on-point ruling from the Ninth Circuit, recently cited when the Ninth Circuit shot down parts of Arizona's controversial SB1070.
To quote the Ninth,
The Ninth Circuit Court of Appeals has stated "'that an alleged constitutional infringement will often alone constitute irreparable harm.'" Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Assoc. Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equal., 950 F.2d 1401, 1412 (9th Cir. 1991)). Indeed, if an individual or entity faces the imminent threat of enforcement of a preempted state law and the resulting injury may not be remedied by monetary damages, the individual or entity is likely to suffer irreparable harm. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (stating that a federal court may properly enjoin “state officers ‘who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution’” (quoting Ex parte Young, 209 U.S. 123, 156 (1908)); New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 366-67 (1989) (suggesting that irreparable injury is an inherent result of the enforcement of a state law that is preempted on its face); Edmondson, 594 F.3d at 771 (concluding that plaintiff is likely to suffer irreparable injury if enforcement of state law that is likely preempted by IRCA and IIRIRA is not enjoined); Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858, 878 (N.D. Tex. 2008) (concluding that there is a likelihood of irreparable injury if enforcement of a city ordinance that is preempted by the INA is not enjoined).This paragraph from the Ninth will be the final trust of our blogger's interlocutory appeal. He has not suffered an alleged constitutional infringement, but quoting the Second Amendment, our blogger's right to keep and bear arms has in fact been infringed. And that absent state law!
If any attorneys have jumped through the hoops of actually filing an Emergency Appeal to the Ninth's Motion Panel, our blogger would appreciate some guidance. (It's amazing that Jared Loughner, the Tucson Murderer, has already had three or four.) Our blogger can write the arguments and certifications. But it's the little things like having the wrong color paper can trip one up. So any guidance from someone who's been there, done that would be appreciated. Please leave your contact info via a comment. (All comments are moderated, so your info will not be published.)
We'll plan to post the Appeal as soon as it's filed.