National Rifle Association (NRA). Photo: Luke Sharrett/Bloomberg

The National Rifle Association, in a new filing late Aug. 24, said the state's argument in a motion to dismiss the gun lobby's lawsuit this month is a “red herring” and urged a federal judge to reject the motion.

The NRA argued in the filing before U.S. Magistrate Judge Christian Hummel of the Northern District of New York that its lawsuit is about more than an insurance program called Carry Guard, which the state has placed particular focus on in public statements and its motion earlier this month.

William Brewer III is the lead attorney for the NRA in the case from Brewer, Attorneys & Counselors in Dallas and New York City. He said in an interview on Monday that the state's motion to dismiss does not address the main points of the lawsuit.

“They created a narrative that they want to respond to with little or no resemblance to the complaint we actually brought that they seek to dismiss,” Brewer said.

There are two different narratives about the NRA's lawsuit against Gov. Andrew Cuomo and the state Department of Financial Services. The association said in its brief that the state is missing the point of its claims altogether.

The NRA argued that actions from Cuomo and DFS over several months, including but not limited to ending Carry Guard, were intended to cause a financial strain on the association. That limited the NRA's resources in New York and consequently stifled its ability to advocate on behalf of gun owners, they claimed. The organization argued that such translates to an attack on its free speech rights.

The Cuomo administration has said in past filings that the NRA's lawsuit is in retaliation to DFS actions to end the Carry Guard program in New York. Carry Guard provided insurance for legal fees, therapy and other costs associated with someone's use of a gun.

DFS, which regulates the state's insurers, claimed that Carry Guard was illegal to sell in New York because the coverage did not meet the minimum requirements for liability insurance policies and because “New York state law prohibits insurance coverage to defense costs arising out of a crime.”

DFS Superintendent Maria Vullo repeated that claim in a statement on Aug. 24, slamming the American Civil Liberties Union for filing an amicus brief supporting the NRA's argument.

“The NRA aggressively marketed, without a license, an illegal insurance product that would permit intentional criminal conduct to be covered by insurance,” Vullo said. “There can be no legitimate dispute on this issue—and the broker and insurer agreed to resolve these violations of New York Insurance Law, while the NRA has chosen instead to pursue a contrived litigation strategy to cover up its own law violations.”

The NRA said in its brief on Aug. 24 that the state's goal went beyond ending the Carry Guard program. The state openly wanted to disenfranchise the association through official actions, it claimed.

“The NRA is not complaining about the fact that defendants seek to regulate insurance generally, or inquire about Carry Guard specifically,” Brewer said. “What the NRA is complaining about is that defendants are attempting to coerce insurance companies and banks to blacklist the NRA—to extinguish what are concededly lawful business relationships. And, at least in some instances, we already know they've been successful.”

And in trying to prove its point, the NRA has used Cuomo's own public statements against him  in recent months. A description of a video uploaded on Cuomo's YouTube page, for example, said “New York has the NRA on the brink.”

Cuomo himself has not not shied away from attacking the association, at one point saying, “If I could have put the NRA out of business, I would have done it 20 years ago.”

Those statements, along with official actions earlier this year, constituted “a censorship scheme to suppress the NRA's speech,” the NRA said in its filing Aug. 24. It also argued that the state's actions have been a retaliatory effort against the association's past advocacy on gun-control issues.

One of those actions was a letter sent by Vullo to the state's financial institutions and insurers in April. The letter, which Vullo sent at Cuomo's direction, warned those companies of the “reputational risks” of doing business with the NRA or any other gun-lobby group.

Vullo specifically said in the letter that DFS “encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.”

Brewer said the letter could have been perceived as a threat to its recipients.

“Those official directives to all financial institutions require the court to look closely at whether or not the guidance letters themselves … and the actions of the defendants would be seen by a reasonable person in the shoes of a bank or insurance company to be a threat: that if you continue to do business with the NRA, or others who share its views, you will face reprisals in the state of New York,” Brewer said.

The state has presented two arguments against the NRA over the letter. The first was that the letter did not compel those companies to stop doing business with the association, it merely encouraged them to re-evaluate any relationships they had with the group in the interest of corporate responsibility.

The second argument claimed the letter, along with press releases from Cuomo targeting the NRA, are government speech and therefore protected from the NRA's First Amendment claims.

Brewer said Cuomo and Vullo's positions should not allow them to act without consequences.

“Government officials have First Amendment rights too,” Brewer said. “But when government officials use their position to coerce private actors, not persuade them, to adopt a particular point of view, that conduct is subject to strict scrutiny.”

Adrienne Kerwin is leading the case for the state Attorney General's Office. The next scheduled hearing in the case is Sept. 10 on the state's motion to dismiss the lawsuit.