(Photo: Nicole S Glass/Shutterstock.com) (Photo: Nicole S Glass/Shutterstock.com)

Lawyers for New York state argued in a new motion to dismiss part of the National Rifle Association’s lawsuit that neither Gov. Andrew Cuomo nor Superintendent Maria Vullo of the state Department of Financial Services owe the gun lobby group a cent for the actions alleged in the litigation.

The motion, if granted, would not dismiss the lawsuit in its entirety, but it would leave Cuomo and Vullo off the hook for any monetary damages the NRA attempts to recoup through one count of the litigation dealing with alleged selective enforcement by the state.

Those monetary damages date back to earlier this year, when DFS entered into consent orders with two insurance companies that previously sold an insurance product called Carry Guard in partnership with the NRA. Carry Guard provided insurance for legal fees, therapy and other costs associated with someone’s use of a gun.

The consent orders fined those companies, Chubb and Lockton, for selling Carry Guard, which DFS said violated state insurance laws because it 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.”

Chubb and Lockton, as part of the consent orders, also agreed not to sell any insurance product in New York that was affiliated with the NRA, regardless of whether the coverage was legal or not. The NRA has claimed the state selectively targeted those companies because of their relationship with the organization, while ignoring similar violations by other insurance carriers.

The NRA alleged in its lawsuit that the consent orders had the potential to harm both its immediate and future financial well-being as a gun advocacy group in New York.

Lockton, the NRA said, broke its contract with the organization when it entered into the consent order and therefore owes the NRA unpaid royalties, according to the complaint. The NRA also claimed it could be forced to pay more money to a new insurance company to underwrite products in New York than it would have under its agreements with Chubb and Lockton.

The monetary damages, which haven’t been quantified in past filings, would fall on the defendants in the case if the district court decides to hold them liable. Adrienne Kerwin, an assistant attorney general, wrote in the state’s motion this week that none of the named defendants could legally be held liable for any of the NRA’s damages.

William Brewer III, a partner at Brewer, Attorneys & Counselors, based in New York and Dallas, is leading the case for the NRA. He said in a statement that they’re not worried about the new motion affecting the litigation, which has now entered the discovery phase.

“Governor Cuomo and his co-defendants tried, and failed, to dismiss the NRA’s core constitutional claims back in September,” Brewer said. “We believe this motion will fare no better. In the meantime, we look forward to proceeding with discovery—which is already underway.”

There are technically five defendants in the case. Cuomo and Vullo each count twice because the lawsuit named them in both their official and individual capacities. DFS is also named as the fifth defendant in the suit, though the state argued that federal law prevents a plaintiff from seeking damages from an entity that’s not a person.

The legal justification for exempting Cuomo and Vullo from liability is more complicated. The state claimed in its motion that state officers in their official capacities, such as Cuomo and Vullo, cannot be sued under the Eleventh Amendment. That amendment, the state wrote, only allows a lawsuit against the state—and by extension state officers—if federal law overrides the state’s immunity or if the state consents to be sued.

“The State has not consented to suit here, and plaintiffs can point to no federal legislation that overrode the State’s sovereign immunity,” Kerwin wrote. “Therefore, the Eleventh Amendment bars all claims for money damages against DFS and Governor Cuomo and Superintendent Vullo in their official capacities.”

The state separated its defense of Cuomo and Vullo in their individual capacities, arguing that Cuomo wasn’t personally involved in the consent orders and that Vullo is entitled to absolute immunity from any liability tied to the state’s actions.

Cuomo, the state claimed, was hands-off from the investigation and consent orders over Carry Guard by DFS. That means he should also not be held liable for any financial harm that may have happened as a result, according to the motion.

“The Amended Complaint does not include any factual allegations sufficient to allege Governor Cuomo’s personal involvement in the alleged selective enforcement of the Lockton Consent Order,” Kerwin wrote. “Indeed, the allegations in the Amended Complaint relate to DFS’s investigation into Carry Guard, and other affinity policies administered by Lockton for the NRA, and focus only on alleged actions of DFS.”

That leaves Vullo, in her individual capacity, which the state claimed has absolute immunity because she’s a government official. Her responsibility as the head of the state’s financial regulatory agency grants her that immunity to give her discretion when she’s carrying out her responsibilities as superintendent, the state claimed.

But the state also provided a sort of fail-safe in the event that the court disagrees with their arguments against holding Cuomo and Vullo liable for damages.

For one, the state claimed, the NRA has argued that it’s entitled to some sort of relief because the state singled out their products over other insurance carriers that sell similar coverage. But there are no other products like Carry Guard on the market in New York that the NRA could compare its coverage to, Kerwin wrote.

“While the NRA attempts to identify other organizations whose insurance programs, it claims, contain similar violations, no rational jury could find that those other organizations are similarly situated,” Kerwin wrote. “This is so because none of their alleged violations include insurance coverage for criminal liability resulting from the use of a firearm—a far more serious violation of the Insurance Law than those violations identified in the [lawsuit.]”

Cuomo and Vullo, the state wrote, are also both entitled to qualified immunity, which effectively protects government officials from civil liability if it was reasonable for them to believe their actions did not violate anyone’s constitutional rights at the time. When DFS entered into the consent order with Lockton, there was no indication the agreement would violate the NRA’s rights, the state argued.

“Since, as detailed in the Lockton Consent Order, Lockton admitted to several violations of the Insurance Law, Governor Cuomo and Superintendent Vullo could have reasonably believed that the enforcement proceeding and resulting Consent Order was consistent with the law, and not in violation of the NRA’s constitutional rights,” the state wrote.

The motion is scheduled to be heard in federal court in Binghamton on Jan. 25, according to filings. The state had originally tried to dismiss the NRA’s lawsuit in its entirety earlier this year, but a federal judge allowed it to continue in a decision last month.


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