ALBANY, N.Y. (CN) – Fending off claims that it tried to bankrupt the National Rifle Association, attorneys for the state of New York will press a federal judge Monday to dismiss the gun lobby’s free-speech suit.
The NRA brought the suit four months ago in Albany, accusing the state agency that regulates New York’s banks and insurers of using selective enforcement to harm the NRA’s longstanding corporate relationships.
“Defendants’ abuses will imminently deprive the NRA of basic bank-depository services, corporate insurance coverage, and other financial services essential to the NRA’s corporate existence and its advocacy mission,” an amended complaint filed in July states.
Facing a claim for tens of millions of dollars in damages, New York shot back that its use of enforcement actions to punish violations “do not … implicate the NRA’s First Amendment rights.”
New York argues as well that the guidance letters it sends to banks and insurers qualify as protected government speech.
“The NRA has failed to – because it cannot – allege any particularized instances of speech that have directly been stifled by defendants’ alleged conduct,” the state argued in a motion to dismiss last month.
For the American Civil Liberties Union and the Texas Public Policy Foundation, groups on opposite ends of the constitutional rights spectrum, the controversy created odd bedfellows. Both urged Senior U.S. District Judge Thomas McAvoy in amicus briefs to advance the NRA’s case.
The Texas foundation stated bluntly in its brief: “The government may not bully its citizens into not doing business with organizations with whom it disagrees politically.”
Meanwhile the ACLU warned that dismissal of the NRA’s suit “would set a dangerous precedent for advocacy groups,” no matter their viewpoint, because public officials would be encouraged to use their regulatory power against the “disfavored.”
The Albany Times Union quoted the executive director of the ACLU’s New York affiliate as saying they did not support the amicus brief due to “deep skepticism” of the NRA’s claims.
Just weeks before the NRA filed suit, New York Governor Andrew Cuomo and Maria Vullo, who heads the state’s Department of Financial Services, urged banks and insurers to weigh their “reputational risk” in doing business with the NRA and similar groups.
The so-called guidance letter pointed to “several recent horrific shootings” at schools, clubs and music festivals nationwide.
“The tragic devastation caused by gun violence … is a public safety and health issue that should no longer be tolerated by the public,” the letter from Vullo read in part.
ABC News reported that since this year’s shooting at Marjory Stoneman Douglas High School in south Florida, where 17 were killed on Valentine’s Day, a growing list of companies has severed ties to the NRA, including hotels, airlines and car-rental companies.
Days before the NRA filed its complaint, New York fined two insurers for violating state law by selling or underwriting NRA-branded “carry guard” insurance, which is meant to protect owners sued after using their gun in self-defense.
In consent orders with the state, Lockton Cos. and affiliate Lockton Affinity of Kansas City agreed to a $7 million fine, and Chubb Ltd. and subsidiary Illinois Union Insurance Co. of Chicago agreed to a $1.3 million fine. Both also said they would end their involvement with carry-guard coverage in New York.
New York contended the product “unlawfully provided liability insurance to gun owners for acts of intentional wrongdoing” by providing coverage in any criminal proceeding arising out of an investigation or defense of charges against the policyholder or a family member, according to a news release on the consent orders.
Gun-control groups have criticized the product as “murder insurance.” The NRA, which is not alone in offering it, is not licensed as an insurance provider in New York, but actively markets carry-guard coverage through its website as a member benefit, according to materials fstate.
The NRA complaint also alleges a “political vendetta” by Cuomo, calling the governor “a political opportunist who has consistently sought to gain political capital by attacking the NRA.”
It traces the rancor to Cuomo’s tenure as secretary of the U.S. Department of Housing and Urban Development in the late 1990s, when he sued gunmakers to hold them liable for crimes in public housing projects committed with illegally obtained firearms. A grassroots effort led by the NRA and other pro-gun groups helped defeat the effort, according to the lawsuit.
Cuomo subsequently vowed to “beat them state by state, community by community,” the complaint states.
Despite the lawsuit, Cuomo has kept up pressure on the NRA.
Late last month, he urged other states to follow New York’s lead and outlaw carry guard insurance. Cuomo also sent a letter to President Trump asking him to “step up” and “tell the NRA to end this reckless program that incentivizes dangerous and criminal conduct.”