NRA V. GOV. CUOMO
ABOUT THE NRA'S CASE
The NRA is involved in a First Amendment lawsuit against New York Governor Andrew Cuomo and other defendants that has become one of the highest-profile cases of its kind.
The lawsuit arises from a series of public statements and enforcement actions by Gov. Cuomo and New York’s chief financial regulator, the New York Department of Financial Services (DFS), during 2017 and 2018. At Gov. Cuomo’s direction, DFS issued official regulatory guidance to all banks and insurance companies doing business in New York, urging them to “discontinue . . . [business] arrangements” with the NRA and other so-called “gun promotion” organizations.
Simultaneously, DFS pursued high-profile investigations of several insurance-industry firms that did business with the NRA, exacting multimillion-dollar penalties for purported regulatory violations. Importantly, DFS required that the firms forswear future business with the NRA — but not other organizations whose insurance programs exhibited the same features.
American Banker magazine interviewed multiple finance-industry sources, who confirmed that DFS’s actions had a chilling effect. The article quoted a banker who said that it’s “hard to know what the rules are” or whom to "do business with." The article noted that such regulatory guidelines can “compel institutions to cease catering to legal businesses” based on apparent political bias.
The NRA believes and alleges that these actions amount to a “blacklisting campaign” — an effort to intimidate the NRA’s potential business partners, choke off its access to financial services, and retaliate against it based on the viewpoint of its speech.
The NRA commenced its lawsuit on May 11, 2018, in the United States District Court for the Northern District of New York. On August 3, 2018, the State filed its Motion to Dismiss, followed by a hearing in Albany, New York, on September 10, 2018. On November 6, 2018, U.S. District Judge Thomas J. McAvoy issued his highly-anticipated decision, which upheld the NRA’s First Amendment freedom-of-speech claims — the crux of its complaint. The court also upheld the NRA’s equal protection claims.
James Freeman, an editor of The Wall Street Journal editorial page, writes of the decision, “...no elected official in the country has more aggressively sought to limit free speech rights than Gov. Andrew Cuomo. Now he will have to answer for it in court…. There is an enormous interest for all Americans in making sure that a politician like Mr. Cuomo cannot abuse his authority to silence law-abiding citizens with whom he disagrees.”
The NRA claims to have acquired compelling evidence from Lloyd’s America, Inc. (LAI) that Vullo and DFS “leveraged DFS’s considerable power… to inflict targeted harm on ‘gun programs’ – irrespective of whether those programs violated the law.” The NRA claims that it was only able to obtain the documents by promising to file them under seal. Therefore, several exhibits that accompany the gun group’s court filing are filed under seal.
According to the proposed Second Amended Complaint, intent on inflicting damage on the NRA, “Vullo met with senior executives of Lloyd’s [of London] and LAI, and presented Defendants’ views on gun control and their desire to leverage their powers to combat the availability of firearms, including
specifically by weakening the NRA.”
“The NRA has troubling new information that underscores the true motives of the State’s actions,” says William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA. “Our client is determined to bring this evidence to light – to expose the backroom meetings and communications
that were essential to Defendant’s scheme to silence and harm the NRA by any means necessary.”
On February 5, 2020, DFS filed civil charges against the NRA and issued a Notice of Hearing in connection with an investigation into insurance products offered to NRA members. DFS alleges that the NRA acted as an insurance producer without a license in endorsing and marketing the insurance products – a violation, DFS claims, of New York State Insurance Laws. As noted in media reports, it announced the charges even as it defends against a May 2018 lawsuit accusing the regulator and Gov. Cuomo of “blacklisting” the group.
“The NRA acted appropriately at all times,” says Brewer. “The NRA did not underwrite, sell, or administer any insurance programs, period. Instead, like countless other affinity groups, the NRA relied on insurance-industry experts to oversee and market products tailored for its members. The New York Bar Association and Habitat for Humanity have similar programs. None of those other groups have been targeted by DFS – because today’s announcement is about politics, not protecting consumers.”
Brewer adds, “The NRA believes it has been singled out to weaken gun-rights advocacy in New York. Undeterred, the NRA will fight for its mission and millions of loyal members.”
On February 28, 2020, the NRA filed court papers seeking a preliminary injunction in federal court to block DFS from conducting the enforcement proceedings. The NRA claims that in the face of startling new evidence and documents detailing backroom pressure it placed on insurance companies to blacklist the NRA, the DFS hurriedly amended its hearing rules, then contrived to conclude its investigation of the NRA – so it could divert important issues to a private, DFS-controlled forum instead of a New York jury.
Brewer states, “The NRA believes the timing of DFS’s enforcement action – on the heels of that proposed amendment – is no coincidence. Rather than litigate these troubling allegations in federal court, where they belong, DFS seeks to distract the public with negative headlines and divert important legal issues to a chamber it controls.”
In connection with the filing, expert witnesses claim that any DFS adjudicatory procedure would be “highly likely to involve factual issues overlapping with those before the Court” in the federal case.
Former Deputy Superintendent of Insurance for the State of New York John R. Cashin states that, since 2014, he finds no evidence of proceedings by DFS against any other affinity client. Further, in more than 45 years, he has “never witnessed hostilities against an affinity client that are comparable to those directed by DFS at the NRA.”
NYU Law School Professor Arthur R. Miller writes, “Allowing DFS to avert, preempt, or muddle this Court’s adjudication of the NRA’s claims by diverting core factual issues to a DFS-controlled tribunal would subject the NRA to irreparable harm.”
On June 1, 2020, the NRA received a favorable ruling in connection with its December 20, 2019, Motion for Leave to file a Second Amended Complaint. U.S. Magistrate Judge Christian F. Hummel granted the NRA’s request to replead its selective enforcement claim.
“We are pleased that the court granted the NRA’s motion to replead its selective enforcement claim,” says Brewer. “The NRA believes that the evidence will show that it was intentionally treated more harshly than other regulated entities – singled out to weaken gun-rights advocacy in the State of New York.”
On September 23, 2022, a panel of three Democratic appointees in the Second Circuit Court of Appeals reversed repeated holdings by the trial judge and dismissed the claims against Vullo individually.
Although the NRA’s claims against Cuomo are not encompassed by this ruling, the decision will, the NRA believes, encourage exactly the corrupting effects scholars warned against.
“The Second Circuit’s decision regarding the NRA’s claims against Ms. Vullo misstates the facts, and offends the First Amendment,” says Brewer. “The NRA is exploring its options, including certiorari to the Supreme Court, which recently reversed yet another Second Circuit decision by a panel in the Bruen case.”
Brewer added that the Second Circuit’s Vullo opinion “endorses a radical idea: that financial regulators can selectively punish businesses to advance ‘public policy,’ including ‘social issues’ such as gun control. This is a derogation of the First Amendment that should not prevail.”
On October 6, 2022, the NRA filed a petition with the Second Circuit seeking a rehearing en banc in connection with the court's September 23, 2022, ruling.
In its filing, the NRA states that the panel should not have proclaimed that a prohibition on viewpoint discrimination by government actors is "antithetical to a healthy representative democracy." The NRA argues that the "panel confuses the role of government officials as regulators with their role as speakers."
The filing states, "The Supreme Court has been clear that when exercising its regulatory power, 'the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others[.]'"
On November 9, 2022, the Second Circuit denied the NRA's request for a rehearing.
"The Second Circuit's ruling would allow government officials free rein to use threats of regulatory action to punish their political opponents," said Brewer, as counsel to the NRA.
"Worse, it even suggests that a speaker's First Amendment-protected advocacy might provide justification for such threats. The ruling is contrary to the protections provided by the First Amendment. The NRA will seek Supreme Court review and is confident that the Second Circuit's decision will be overturned," Brewer continued.