NRA Moves Forward with Discovery in First Amendment Case Against NY Governor Cuomo

New York State Governor Andrew Cuomo reacts during a news conference announcing a tentative contract settlement between the Metropolitan Transportation Authority and the Transit Workers Local 100, Thursday, April 17, 2014, in New York. Nearly 38,000 subway and bus workers have been without a contract for about two years. (AP Photo/John Minchillo)

 

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New York Governor Andrew Cuomo is notoriously hostile to the Second Amendment and the exercise thereof. His administration has been riddled with corruption. He is considered one of the three engineers of the infamous “Safe Act”. The other two, Dean Skelos, former leader of the New York Senate, and Sidney Silver, former Speakerof the New York Assembly, have been convicted of corruption.  Governor Cuomo was intimately politically involved with both men.

Governor Cuomo has been able to evade corruption charges thus far.

Perhaps Governor Cuomo has a touch of believing he is invulnerable.  He used his vast powers to exhort the New York bureaucracy to blacklist the National Rifle Association (NRA). Governors have free speech rights, just as everyone is supposed to have in the United States. But, as leftists like to point out, there are limits on all rights.

Free speech does not include the right to threaten legal entities with a bureaucratic blacklist. Nice little non-profit you have there. Be a shame if something were to happen to it…

On 7 November, Jacob Sullum wrote about some of the details of the bureaucratic blacklisting of the NRA, after Cuomo made the not so subtle threats.  From creators.com:

Two weeks later, as if to underline the dangers of doing business with “gun promotion organizations,” DFS announced a consent decree with Lockton Companies, the New York administrator of Carry Guard, the NRA’s liability insurance program for people who use firearms in self-defense. Lockton agreed to pay a $7 million fine for alleged violations of state regulations and promised to stop helping the NRA with insurance programs in New York, regardless of their legality.

 

Five days later, DFS touted a consent decree with Chubb, which underwrote the Carry Guard program overseen by Lockton. Chubb agreed to pay $1.3 million and shun the NRA — not just in New York, but throughout the world. 

 

Lloyd’s of London severed its relationship with the NRA two days after the Chubb consent decree was announced. Because of the state’s implicit threats, the NRA says, it has had trouble finding companies willing to provide even basic banking and insurance services, much to Cuomo’s gloating delight.

 

The NRA sued, claiming Governor Cuomo’s actions were violations of the First Amendment freedom of speech and the press. Cuomo’s actions were detailed and clear enough that the national ACLU, no friend of the Second Amendment, agreed the NRA case should go to trial.  From thehill.com:

“In the ACLU’s view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment,” ACLU legal director David Cole wrote in his announcement of the filing on Friday.

 

“If the NRA’s charges are true, the state’s actions would clearly violate the First Amendment,” Cole wrote.

 

The ACLU argued that dismissing the NRA suit against Cuomo “would set a dangerous precedent for advocacy groups across the political spectrum.”

 

“Public officials would have a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny,” Cole wrote

The U.S. District Judge agreed the suit should go to trial. The judge refused to simply throw the case out, as Governor Cuomo had asked. From law.com:

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.

As in other civil lawsuits, the NRA now has the ability to demand any documentation that might have bearing on the case. New York State can, and likely will, be ordered by the trial court to provide discovery material to the NRA legal team. Governor Cuomo has demonstrated a lack of accountability and hostility to the Constituion. His administration may be less than forthcoming with discovery.

Governor Cuomo has made a lot of enemies. It is hard to believe one or two of them would be above leaking documents the Governor would rather not be seen by NRA lawyers.

The discovery process will be worth watching in this case.

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