February 8, 2023 — The New York Law Journal reports that Brewer client the National Rifle Association of America (NRA) is asking the U.S. Supreme Court to consider its suit against former New York Department of Financial Services Superintendent Maria Vullo, "whom the gun-rights advocacy group accused of threatening insurers because they did business with the NRA."
According to the NRA, Vullo and former New York Governor Andrew Cuomo engineered a 2018 “blacklisting campaign” against the NRA. The Association filed a lawsuit in May 2018, alleging the campaign was retaliation for the NRA’s viewpoint of speech. The State of New York filed a Motion to Dismiss, and, on November 6, 2018, U.S. District Judge Thomas J. McAvoy issued a highly-anticipated decision, which upheld the NRA’s First Amendment freedom-of-speech claims — the crux of its complaint. That decision was overturned by the United States Court of Appeals for the Second Circuit on September 22, 2022.
The New York Law Journal notes that the petition for a writ of certiorari was signed by NRA's counsel, William Brewer III, and First Amendment scholar and law professor Eugene Volokh. Together, they argue that the Second Circuit’s opinion “gives state officials free rein to financially blacklist their political opponents—from gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond.”
“It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views,” they wrote.
Brewer told the Journal that reversal of the Second Circuit’s ruling is “important not only to the NRA but all advocacy groups that rely upon the protections of the First Amendment.”
New York Law Journal: Judge's Ruling Allows NRA's First Amendment Claims to Proceed
On March 15, 2021, the New York Law Journal reported that a ruling by U.S. District Judge Thomas McAvoy of the Northern District of New York allows the NRA's First Amendment claims against New York state officials to move forward with discovery.
The lawsuit argues that New York state officials violated the NRA's First Amendment rights to express its political views.
“This important decision reaffirms that all public officials, even Gov. Cuomo and Maria Vullo, the former superintendent of the New York State Department of Financial Services, are accountable under the First Amendment,” said William Brewer, counsel to the NRA. “It will allow the NRA to pursue discovery and bring important evidence to light—to expose the communications and coordinated efforts of New York officials and others to harm the NRA and impinge its Constitutional freedoms. The message is clear: the NRA will stand up to those who unlawfully interfere with its Second Amendment advocacy.”
The article reports that Judge McAvoy denied qualified immunity to former New York Department of Financial Services (DFS) superintendent Maria Vullo, noting that "a question of material fact exists" as to whether Vullo "explicitly threatened" an insurer with DFS enforcement unless it broke ties with the NRA.
New York Post Reports on Brewer's Representation of NRA in New York Gun Store Lawsuit
On April 3, 2020, the New York Post reported on the NRA filing a federal lawsuit challenging New York Governor Andrew Cuomo's decision to label gun stores "non-essential" businesses.
The article, titled "NRA sues NY for calling gun stores 'non-essential' amid coronavirus," reports that the NRA lawsuit asks the court to declare gun stores essential businesses that can operate during the coronavirus crisis.
The article quotes NRA lawyer William A. Brewer III of Brewer, Attorneys & Counselors. "The current public health emergency does not justify the complete elimination of this right [to bear arms], especially during a time when many New Yorkers have valid concerns about their physical safety and welfare," Brewer said.
Brewer News Release: NRA Files Lawsuit Against State of New York, Seeks Gun Stores to be Designated “Essential” in Wake of Shutdown
New York, NY…April 3, 2020 – Brewer, Attorneys & Counselors announced today that its client, the National Rifle Association of America (“NRA”), filed suit against New York Governor Andrew Cuomo, the New York State Department of Economic Development, and New York State Department of Economic Development Acting Commissioner, President, and CEO Eric Gertler in response to the state’s attack on the rights of New York citizens and residents to exercise their Second Amendment freedoms.
The lawsuit focuses on Executive Order 202.8, issued by Gov. Cuomo on March 20, 2020, in response to the COVID-19 health crisis. According to the lawsuit, that order “effectively and indefinitely suspended a key component of the Second Amendment to the United States Constitution – shutting down all gun stores in the State of New York, including federally licensed gun stores, by deeming them ‘non-essential’ businesses.” Under the order, “essential” businesses are permitted to remain open. According to the NRA, the order had the intended effect of eliminating the only way of legally purchasing firearms in the state.
“There isn’t a single person who has ever used a gun for self-defense who would consider it nonessential,” said Wayne LaPierre, NRA CEO & Executive Vice President. “This is clearly another assault by Gov. Cuomo on the NRA, on the rights of New Yorkers to defend themselves and their families, and on our Second Amendment freedoms. The NRA will continue to fight all such attacks until Gov. Cuomo recognizes that constitutional rights are for every New Yorker and every American – and not just for politicians and their privileged friends.”
Filed on April 2, 2020, in the United States District Court for the Northern District of New York, the lawsuit states, “Reasonable steps to prevent the spread of the COVID-19 Coronavirus do not include the suspension of the Second Amendment. Plaintiff asks the Court to declare that the Second Amendment right to bear arms requires that citizens and residents of New York be afforded reasonable access to purchase firearms and ammunition, and to prohibit Defendants from needlessly forcing gun stores to remain closed.”
“The right to keep and bear arms is enshrined in the Constitution, in part, to give Americans the ability to defend themselves and their families,” said William A. Brewer III, counsel for the NRA and partner at Brewer, Attorneys & Counselors. “The current public health emergency does not justify the complete elimination of this right, especially during a time when many New Yorkers have valid concerns about their physical safety and welfare. Our client believes that Gov. Cuomo is again weaponizing the power of his office – to prevent gun owners from exercising the rights to which they are entitled.”
The NRA has approximately 5 million members.
As stated in the lawsuit, on March 28, 2020, the United States Department of Homeland Security issued a list of critical infrastructure “intended to help State, local, tribal and territorial officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.” This list of critical infrastructure includes: “Workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges.”
In the wake of this guidance, a litany of states and municipalities clarified that gun stores are “essential.” For example, on March 30, 2020, New Jersey Gov. Phil Murphy announced that gun stores will be classified as “essential businesses” and allowed to reopen.
Gov. Murphy stated, “In accordance with the guidance released over the weekend by the federal Department of Homeland Security, we will allow firearms sellers to operate.”
Unfortunately, New York refused to clarify or reexamine its position as it relates to gun stores. However, liquor stores remain “essential businesses” under the governor’s order last month.