FOR THE RECORD
NRA Files Memorandum of Law in Opposition to NYAG’s Motion to Dismiss Lawsuit
Coalition of 16 Attorneys General File Amicus Brief Supporting
NRA Case Against NYAG Letitia James
December 22, 2020 — Brewer, Attorneys & Counselors, on behalf of its client, the National Rifle Association of America ("NRA"), filed a memorandum of law in opposition to New York Attorney General ("NYAG") Letitia James' motion to dismiss a lawsuit filed by the NRA against James. That lawsuit alleges that the NYAG weaponized her regulatory and legal powers to harm a political adversary.
"In this filing, the NRA confronts the efforts of the New York Attorney General to avoid legal scrutiny for the obvious abuse of the powers of her office,” said William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA. "The NRA believes James' open hostility toward the Association and its law-abiding members is unconscionable. Courts have repeatedly held that the underlying chilling effects of conduct like James’ require judicial scrutiny."
Filed in the United States District Court for the Northern District of New York, the NRA's August 2020 lawsuit notes that James vowed to "target the NRA" and "investigate the legitimacy of the NRA as a charitable organization" while on the campaign trail in July 2018 – before taking office and without any evidence of compliance failures. She called the NRA a “terrorist organization” and a “criminal enterprise.”
In April 2019, the NYAG announced an investigation of the NRA and, predictably, sued to dissolve the Association in the ramp up to the November national election. The NRA requested declaratory and injunctive relief under the First Amendment of the United States Constitution, as well as a judicial declaration that the NRA operates in substantial compliance with New York not-for-profit law.
On November 20, 2020, the NYAG filed a motion to dismiss the lawsuit.
In the most recent filing, dated December 21, 2020, the NRA states that it has "meritorious constitutional claims, the dismissal of which could radically alter how states regulate non-profits engaged in political speech.” The NRA confronts James’ plea for absolute immunity by observing, “…the conduct alleged in the Complaint was investigative in nature. Indeed, the NRA alleges that James’ actions as NYAG – including, but not limited to, the investigation into the NRA’s tax-exempt status – were done under color of state law and undertaken directly in response to and substantially motivated by the NRA’s political speech regarding the right to keep and bear arms.”
Joining the NRA in opposing James is Arkansas Attorney General Leslie Rutledge, who filed an amicus brief in support of the NRA's case. Arkansas is joined in the amicus brief by Alaska, Georgia, Idaho, Mississippi, Oklahoma, Kansas, Kentucky, Louisiana, Missouri, Ohio, South Carolina, South Dakota, Texas, Utah, and West Virginia.
In their brief, the Attorneys General state that the "New York AG cannot be allowed to wield the power of her Office to discriminate against the NRA simply because she doesn't like its members' political views, advocacy, and defense of a fundamental constitutional right.... Her motion should be denied, and the NRA's suit should move forward."
The actions of James to dissolve the NRA have come under scrutiny from many leading legal experts and constitutional scholars, including the ACLU.
In an editorial for The Wall Street Journal, dated August 26, 2020, ACLU national legal director David Cole writes, “You may have your own opinions about the NRA, but all Americans should be concerned about this sort of overreach. If the New York attorney general can do this to the NRA, why couldn’t the attorney general of a red state take similar action against the ACLU, the AFL-CIO, Common Cause, or Everytown for Gun Safety?”
Cole continues, “There is simply no precedent for such extreme action against an organization like the NRA, which, whether you like it or not, has been serving charitable purposes very effectively (indeed, many of its opponents would say, too effectively) for a century and a half.”