Ex-New York official asks Second Circuit for qualified immunity in NRA First Amendment case

MANHATTAN (CN) — After the U.S. Supreme Court ruled in May that the National Rifle Association can sue a New York official over claims in unfairly targeted its business operations, the Second Circuit on Wednesday weighed whether that official should be granted qualified immunity.

The NRA filed its 2018 First Amendment lawsuit against Maria Vullo, then-superintendent of the New York State Department of Financial Services, after she announced a plan to urge banks and insurers in the state to stop doing business with the gun rights nonprofit in the aftermath of the school shooting in Parkland, Florida. After the Second Circuit in 2022 upheld a lower court’s dismissal, the Supreme Court breathed new life into the suit, ruling unanimously that the NRA plausibly alleged that Vullo leveraged her authority to coerce the group’s business associates to distance themselves from the group to suppress its pro-gun advocacy.

“Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors,” Supreme Court Justice Sonia Sotomayer, a Barack Obama appointee, wrote in the court’s opinion.

Sotomayer, historically a staunch opponent of the NRA in its Second Amendment litigation, said Vullo was “free to criticize the NRA” but her supposed bid to punish banks and insurers for doing business with the organization was a bridge too far.

With the case’s dismissal now reversed, the parties returned to the Second Circuit in lower Manhattan Wednesday to duke out the issue of qualified immunity for Vullo.

Vullo claims that her intent, even if malicious, is irrelevant. Her attorney, William Havemann of Hogan Lovells, argued to the panel of circuit judges that Vullo was still acting in an “objectively reasonable law enforcement context,” thus is entitled to immunity.

Failure to recognize Vullo’s immunity would have a “chilling effect on public officials to subject them to money damages for failing to identify a constitutional principle that three judges of this court did not identify,” Havemann said, acknowledging the circuit’s previous ruling in his client’s favor.

He added that Vullo cannot be targeted since it would not have been clear to her at the time that her conduct amounted to a “coercive threat” to suppress the NRA’s First Amendment rights, a necessary bar to clear in this case.

“Is it not indirect coercion of speech by pushing the insurance companies not to do business that somehow deters the NRA from engaging fully in speech?” asked U.S. Circuit Judge Denny Chin, a Barack Obama appointee.

Havemann said the question was irrelevant since the inquiry before the court concerns a precedent that existed before 2018, when Vullo was alleged to have violated the NRA’s right to free speech.

“We can accept the allegation that this was coercive, as the Supreme Court found,” Havemann said. “And nonetheless, on the face of the complaint, it is clear that no precedent in existence at the time she is alleged to have done this would have put her on notice.”

The NRA’s attorney, Noel Francisco of Jones Day, disagreed.

“What you have here is the DFS essentially going to the service providers of a speech organization and saying, ‘Look, unless you stop providing this certain set of important services to this organization, because I don’t like their speech I am going to investigate you for other things that I ordinarily wouldn’t care about,” Francisco said.

Francisco panned Havemann’s argument, claiming that just because Vullo didn’t directly threaten the NRA, she coerced the NRA’s business partners with the same intended effect of stifling free speech.

“Just because you come up with a slightly different way to violate somebody’s rights doesn’t mean you’re entitled to qualified immunity,” Francisco said.

Joining Chin on Wednesday’s panel were U.S. Circuit Judge Susan Carney, a Barack Obama appointee, and U.S. Circuit Judge Beth Robinson, a Joe Biden appointee. The trio of judges didn’t immediately issue a ruling following the arguments.

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