ALBANY, N.Y. (CN) – Just a few days after New York’s attorney general expanded her subpoena of National Rife Association members, the gun rights group suffered an early defeat in its bid to probe state records for abuses.
The NRA’s court battle began in early 2018, when New York Governor Andrew Cuomo directed banks, insurers and other state-licensed financial companies to review their relationships with the NRA and other gun rights groups for “reputational risk.”
“This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all,” Cuomo said in an April 2018 press conference, a few months after the high school shooting in Parkland, Florida.
Cuomo later tweeted that he considered the NRA “an extremist organization” and urged financial companies in New York to cut ties with the group.
The NRA fired back in court, saying the Cuomo administration had exerted more pressure behind the scenes, targeting insurers with “selective prosecution, backroom exhortations, and public threats with a singular goal — to deprive the NRA and its constituents of their First Amendment right to speak freely about gun-related issues and defend the Second Amendment.”
Other constitutional defenders rallied to the NRA’s side. In one amicus brief, the American Civil Liberties Union said that state officials “cannot abuse their regulatory authority to retaliate against disfavored advocacy organizations and to impose burdens on those organizations’ ability to conduct lawful business.”
With only free-speech claims advancing, the NRA entered a demand for New York to produce a wide range of investigatory documents, including those into affinity insurance programs endorsed by the NRA and intra- and inter-agency communications regarding the NRA’s lawsuit.
U.S. Magistrate Judge Christian Hummel rejected the maneuver late Thursday, denying several of the requests as irrelevant and finding that New York must file a privilege log over the remaining records.
“Because the court does not have any documents before it, it cannot assess the application of the attorney-client privilege or attorney work-product privilege,” Hummel’s 54-page opinion states.
He added that “documents do not automatically gain the protections of these privileges solely because they were authored by an attorney.”
Once the privilege log is submitted by Aug. 29, Hummell said the court will conduct an in camera review of the requested documents.
The state has until Aug. 22 meanwhile to determine whether it has any documents pertaining to government agency referrals.
“As neither party has provided anything beyond extremely broad, vague categories of information, the court cannot unilaterally assess the varying interests and assess whether a confidentiality or protective order is proper,” Hummel wrote.
Hummel also threw cold water on the NRA’s request for investigative documents related to consent orders the state entered into with three insurers, Chubb Group Holdings, Lockton Affinity and Lloyds of London.
New York fined the insurers in May 2018 for providing illegal insurance under the NRA’s “Carry Guard” program to gun owners for acts of intentional wrongdoing involving legally possessed firearms.
The NRA “has failed to demonstrate how communication between [Cuomo and other state officials] and financial institutions or insurers about their business relationship with non-NRA gun promotion organizations is relevant to their First Amendment claims,” Hummel wrote.
NRA attorney William Brewer nevertheless hailed the ruling as an "important breakthrough."
Taking aim at Cuomo and New York’s Department of Financial Services, Brewer accused the state of having worked for “months ... to conceal from the public, and the court, documents demonstrating the state’s internal rationale for its blacklisting campaign against the NRA.”
“The NRA will aggressively pursue all the facts and press every advantage in this important advocacy,” Brewer added. “We look forward to continued discovery in this case, and the NRA fully intends to renew its motion after repleading its 14th Amendment equal-protection claims – to redress New York’s intentionally unequal, politically motivated enforcement of certain financial-services laws.”
The battle between Cuomo and the NRA over the insurance programs is just one salvo in the larger war between the two sides.
On Aug. 6, New York Attorney General Letitia James issued a subpoena for documents from more than 90 current and former members of the NRA’s board. The investigation into the NRA began earlier this year and is looking at whether the organization has misused funds earmarked for charitable purposes.
The NRA came under increased scrutiny earlier this year after press reports of questionable spending by the group and the lucrative pay lavished on some of its members.
President Donald Trump has criticized New York’s multiple NRA investigations. “The NRA is under siege by Cuomo and the New York State A.G., who are illegally using the State’s legal apparatus to take down and destroy this very important organization, & others,” Trump tweeted in April.
Cuomo responded to Trump, writing in a statement that “the only thing illegal is the gun lobby’s insurance scheme.”
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