A district court judge in New York has dismissed numerous claims brought by the National Rifle Association of America (the “NRA”) against various New York officials relating to the NRA's Carry Guard insurance.

The Case

The National Rifle Association of America (the “NRA”) sued New York Governor Andrew Cuomo, individually and in his official capacity, then-superintendent of the New York State Department of Financial Services Maria T. Vullo, both individually and in her official capacity, and the New York State Department of Financial Services (the “DFS”) (collectively, the “Defendants”), asserting several federal and New York State constitutional claims and a New York common law tort claim relating to its Carry Guard insurance.

After a decision on the Defendants' motion under Federal Rule of Civil Procedure 12(b)(6), only the NRA's First Amendment claims (Counts 1 and 2) and that portion of its selective enforcement claims (Count 4) seeking money damages for past acts remained to be litigated.

The Defendants moved to dismiss any 42 U.S.C. § 1983 claims against the DFS on the ground that the DFS was not a “person” subject to liability under Section 1983; to dismiss all money damage claims against the DFS, and against Governor Cuomo and the DFS superintendent in their official capacities, as barred by the 11th Amendment; to dismiss Count 4 for failing to state a legally cognizable selective enforcement claim; to dismiss any remaining selective enforcement claims against Governor Cuomo for lack of personal involvement; to dismiss any remaining selective enforcement claims against the DFS superintendent on the ground that she was shielded from liability by the doctrine of absolute immunity; and to grant Governor Cuomo and the DFS superintendent qualified immunity on any remaining selective enforcement claims.

The District Court's Decision

In its decision, the court first noted that the NRA had agreed to withdraw its Section 1983 claims against the DFS and that it did not oppose the Defendants' motion to dismiss all money damage claims against the DFS, Governor Cuomo, and the DFS superintendent in their official capacities. Therefore, the court dismissed all Section 1983 claims against the DFS as withdrawn and the money damages claims as abandoned.

The court then addressed the NRA's claims that the Defendants had engaged in selective enforcement of the New York insurance laws in violation of the NRA's rights to equal protection of law. In particular, the NRA alleged that the Defendants had “knowingly and willfully violated the NRA's equal protection rights by seeking to selectively enforce certain provisions of the Insurance Law against Lockton's affinity-insurance programs for the NRA. Meanwhile, other affinity-insurance programs that were identically (or at least similarly) marketed by Lockton, but not endorsed by 'gun promotion' organizations, have not been targeted by DFS's investigation.”

The NRA also asserted that the “Defendants' selective enforcement of the Insurance Law against the NRA and its business partners has been knowing, willful, arbitrary, capricious, unreasonable, discriminatory, and undertaken in bad faith and without a rational basis” and that this selective enforcement was “based on the NRA's political views and speech relating to the Second Amendment.”

The court explained that, to succeed on its selective enforcement claims, the NRA had to identify “comparators whom a prudent person would think were roughly equivalent.” It then dismissed the NRA's selective enforcement claims, finding that the NRA had not plausibly alleged that the Defendants had knowledge of the purported Insurance Law violations by the comparators.

Finally, the court considered the NRA's remaining claims on Count 4, against Governor Cuomo and the DFS superintendent, in their individual capacities. It ruled that the NRA's “conclusory statements” in Count Four that “Defendants” acted “knowingly and willfully” was “insufficient” to survive a motion to dismiss.

The court found that the NRA's argument that the Defendants' own “public statements” made clear that their selective-enforcement actions were intended to injure the NRA because of its political views failed to provide “a factual basis upon which to conclude” that either Governor Cuomo or the DFS superintendent were aware of comparators' violations of the non-firearm-related Insurance Law provisions enforced against Lockton.

Moreover, the court said, even assuming that Governor Cuomo and the DFS superintendent's public statements indicated their intention to harm the NRA for its gun-promotion efforts and advocacy, the NRA failed “to point to specific statements plausibly supporting the inference that either defendant knew of similar non-firearm-related Insurance Law violations by the comparators but consciously declined to prosecute them.” Similarly, the court continued, the NRA's argument that it was entitled to an inference that the Defendants had intended to harm the NRA based on the temporal proximity between the public statements and the DFS enforcement action failed to support an inference that either Governor Cuomo or the DFS superintendent were aware of similar violations by the comparators yet failed to take comparable action against them.

Accordingly, the court dismissed the NRA's equal protection claims, albeit without prejudice to re-pleading.

The NRA's First Amendment claims remain.

The case is National Rifle Association of America v. Cuomo, No. 1:18-CV-0566 (N.D.N.Y. May 10, 2019). Attorneys involved include: For National Rifle Association of America, Plaintiff: Sarah Rogers, LEAD ATTORNEY, Brewer Attorneys & Counselors, New York, NY; William A Brewer, III, LEAD ATTORNEY, Brewer, Attorneys & Counselors, Dallas, TX; Charles J. Cooper, Harold S. Reeves, Jose Joel Alicea, Michael W. Kirk, Cooper & Kirk, PLLC, Washington, DC. For Andrew Cuomo, both individually and in his official capacity, Defendant: Adrienne J. Kerwin, LEAD ATTORNEY, Office of Attorney General – Albany, State of New York, Albany, NY; William A. Scott, LEAD ATTORNEY, Helena O. Pederson, New York State Attorney General – Albany, Albany, NY; Michael G. McCartin, Office of Attorney General – Albany, Albany, NY. For Maria T. Vullo both individually and in her official capacity, Defendant: Adrienne J. Kerwin, LEAD ATTORNEY, Office of Attorney General – Albany, State of New York, Albany, NY; William A. Scott, LEAD ATTORNEY, New York State Attorney General – Albany, Albany, NY; Debra L. Greenberger, Elizabeth S. Saylor, Emery Celli Brinckerhoff & Abady LLP, New York, NY; Helena O. Pederson, New York State Attorney General – Albany, Albany, NY; Michael G. McCartin, Office of Attorney General – Albany, Albany, NY. For The New York State Department of Financial Services, Defendant: Adrienne J. Kerwin, LEAD ATTORNEY, Office of Attorney General – Albany, State of New York, Albany, NY; Nathaniel J. Dorfman, LEAD ATTORNEY, New York State Department of Financial Services, New York, NY; William A. Scott, LEAD ATTORNEY, New York State Attorney General – Albany, Albany, NY; Eamon G. Rock, New York State Department of Financial Services, Albany, NY; Helena O. Pederson, New York State Attorney General – Albany, Albany, NY; Michael G. McCartin, Office of Attorney General – Albany, Albany, NY. For American Civil Liberties Union Foundation, Amicus: Brian Matthew Hauss, LEAD ATTORNEY, American Civil Liberties Union – New York Office, New York, NY. For Texas Public Policy Foundation, Amicus: Chance Weldon, Texas Public Policy Foundation, Austin, TX; Keisha Russell, First Liberty Institute, Plano, TX.

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Steven A. Meyerowitz

Steven A. Meyerowitz

Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].

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