The Second Circuit Court of Appeals has once again ruled that a New York official who pressured companies to end their relationships with the National Rifle Association is immune from a civil suit over her actions, more than a year after the U.S. Supreme Court ruled that the organization had “plausibly alleged” that then-New York Department of Financial Services head Maria Vullo violated the First Amendment by “coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy.”
In their ruling last May, the Court overturned a prior Second Circuit decision immunizing Vullo from being sued by the NRA and remanded the case down to the lower courts for further review. Despite what SCOTUS said in 2024, today a Second Circuit panel argued they got it right the first time.
This Court previously reversed the district court’s order and held that plaintiff-appellee, a pro-gun advocacy group, failed to state a First Amendment claim and that the state official was entitled to qualified immunity. The Supreme Court granted certiorari to determine only whether the complaint stated a plausible First Amendment claim. Concluding that it did, the Supreme Court reversed our holding on that issue and remanded the case for further proceedings but noted that this Court was free on remand to reconsider the issue of qualified immunity. We have now reconsidered the issue, and we conclude again that the state official was entitled to qualified immunity.
In 2018, a couple of months after the Parkland shootings in Florida, Vullo sent out two letters entitled “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations” to insurance companies and and businesses in the financial services industry. In the letter, Vullo wroter about the “social backlash” against the NRA and other Second Amendment groups, acusing them of “promot[ing] guns that lead to senseless violence”
She then pointed out that several businesses had ended their relationship with the NRA , which she described as “fulfilling their corporate social responsibility.” The problem is that some of those businesses did so under duress, according to the NRA’s complaint. From the Supreme Court’s unanimous decision:
On February 27, Vullo met with senior executives at Lloyd’s. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo “presented [their] views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.” She also “discussed an array of technical regulatory infractions plaguing the affinity insurance marketplace” in New York. Vullo told the Lloyd’s executives “that DFS was less interested in pursuing the[se] infractions” unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.”
So why does the Second Circuit contend that Vullo can’t be sued over her actions?
Vullo is entitled to qualified immunity on the NRA’s impermissible coercion and retaliation claims because the First Amendment rights at issue were not clearly established at the time of the challenged conduct. Reasonable officials in Vullo’s position “would [not] have known for certain”… that her conduct crossed the line from forceful but permissible persuasion to impermissible coercion and retaliation.
In other words, her actions did cross the line, but the Second Circuit is giving her a pass because they don’t think she knew that.
That’s a remarkable conclusion. Even if the caselaw in question wasn’t “clearly established”, Vullo knew that she was using the power of her office to coerce businesses into dropping their relationship with the NRA because of it’s advocacy for the Second Amendment. What’s to stop other officials from doing the same against other groups and other issues, so long as they can arguably plead ignorance about what they’re allowed to do?
To be clear, we do not hold that an official may infringe the statutory or constitutional rights of any person or entity if she can find some sufficiently novel way to use her office and powers to do so. Rather, we hold here that qualified immunity is proper only because no case (or set of cases) had clearly established, by the time of Vullo’s conduct, that exercising regulatory power to pressure third-party regulated entities into refraining from non expressive activity and disassociating from a plaintiff crossed the line from persuasion into impermissible coercion and retaliation. In other words, Vullo is entitled to qualified immunity because the effect of her alleged coercion of and retaliation against these regulated entities on the NRA’s speech is significantly more attenuated here than in the cases cited above.
Sounds to me like the Second Circuit is absolutely giving the green light to public officials to infringe on the rights of persons or organizations so long as they can come up with a “novel” way of doing so that hasn’t been directly scrutinized by the courts.
I don’t know if the NRA will appeal today’s decision back to the Supreme Court, but I hope that they will. The First Amendment issues are just as important now as they were a year ago, if not more so, given that the Second Circuit has basically charted a path for other public officials to bully companies into disassociating themselves from entities and organizations that advocate for policies and positions those officials don’t like.
Editor’s Note: Help us continue to report the truth about bullying politicians and their anti-gun activism.
Join Bearing Arms VIP and use promo code FIGHT to get 60% off your membership.
Read the full article here
