The National Rifle Association’s lawsuit against New York Gov. Andrew Cuomo and a state agency will move forward after a federal judge rejected part of the state’s motion to dismiss the group’s First Amendment claims Tuesday evening.
U.S. District Judge Thomas McAvoy of the Northern District of New York said in a lengthy decision that the NRA’s claims that actions by Cuomo and Department of Financial Services Superintendent Maria Vullo stifled its free speech rights were sufficient enough to be evaluated at trial.
“The allegations of direct and implied threats to insurers and financial institutions because of these entities’ links with the NRA, and the allegations of resulting harm to the NRA’s operations, are sufficient to make out plausible First Amendment freedom-of-speech claims,” McAvoy wrote. “While the NRA may not be able to establish the factual predicates for these claims, it has presented sufficient allegations to allow them to go forward.”
William Brewer III from Brewer, Attorneys & Counselors in Dallas and New York City is the lead attorney for the NRA in the case. He said in a statement Tuesday evening that they are looking forward to proceeding with discovery, which they have said could reveal a deliberate effort to dismantle the gun lobby through state actions.
“This decision upholds not only the NRA’s First Amendment claims, but basic First Amendment principles,” Brewer said. “The motion to dismiss was a misguided attempt to avoid addressing the substance of this case. As the court recognized, the NRA deserves its day in court—and we look forward to it. We are eager to proceed with discovery, which we believe will reveal more troubling facts about defendants’ abuse of state power to suppress opposing political views.”
A spokesman for Vullo did not immediately respond to a request for comment Tuesday evening.
The NRA sued the state in May over claims that Cuomo and Vullo acted to financially impair the association through official state actions, which the gun lobby has said will limit its ability to advocate on behalf of gun owners in New York.
Among those actions were two letters sent by Vullo, a set of press releases from state offices, and a pair of consent orders between DFS and two insurance providers.
The press release, from Cuomo’s office, directed DFS to ask financial institutions within the state to reevaluate any relationship they may have with the NRA and decide whether it may “harm their corporate reputations and jeopardize public safety.”
Vullo, in turn, sent letters to the state’s banks and insurance companies urging them to review any business dealings they may have with the gun lobby group.
“The department encourages its chartered and licensed financial institutions to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility,” Vullo wrote in one of the letters.
The NRA has argued that the state’s financial institutions could have interpreted the language in that letter as a threat to immediately stop doing business with the group or face sanctions from the state. The state has said that the letter contained no explicit threats to those companies and was not intended to intimidate them.
McAvoy said the letter could plausibly be interpreted as a threat.
“While neither the guidance letters nor the Cuomo press release specifically directs or even requests that insurance companies and financial institutions sever ties with the NRA, a plausible inference exists that a veiled threat is being conveyed,” McAvoy wrote.
The state has also argued that the NRA’s lawsuit is in retaliation to an investigation by DFS into an insurance product called Carry Guard, which provided insurance for legal fees, therapy and other costs associated with someone’s use of a gun. The Department of Financial Services, the state’s insurance regulator, investigated companies for selling the product in 2017 and ultimately found it to be illegal.
The agency said the Carry Guard product did not meet the state’s minimum liability requirements and “New York state law prohibits insurance coverage to defense costs arising out of a crime.”
Two companies entered into consent orders with the state in May for selling the product, which was marketed by the NRA. As part of the agreement, the companies agreed to cease any business arrangements they had with the NRA. They also agreed to financial penalties.
Since that time, the NRA has alleged that it’s had trouble obtaining corporate insurance coverage, and other insurance products. They claim that could harm their financial well-being in the future, which would inadvertently give them less resources to advocate for gun owners in New York.
McAvoy wrote in his decision that financial institutions could have perceived the series of actions by the state—from Cuomo’s press release to the consent orders—as a warning.
“The allegations in the amended complaint are sufficient to create a plausible inference that the guidance letters and Cuomo press release, when read together and in the context of the alleged backroom exhortations and the public announcements of the consent orders, constituted implicit threats of adverse action against financial institutions and insurers that did not disassociate from the NRA,” McAvoy wrote.
The decision was not completely in favor of the NRA’s claims. Four of the seven counts in the NRA’s amended complaint were dismissed in the decision, including claims that the state violated the gun lobby’s due process rights and interfered with its economic advantage.
That whittles down the number of claims the state has to respond to in the weeks going forward, but still leaves the crux of the NRA’s case intact.
“We believe this case moving forward is a resounding win for the NRA,” said Josh Powell, executive director of NRA General Operations. “On behalf of our organization and the millions of people it represents, I am proud to say that the NRA will have its day in court. The actions taken by the governor and others will never silence us from advocating for our members or fighting to protect the constitutional freedoms to which they are entitled.”