MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiffs Dark Storm Industries LLC (“Dark Storm”), Brian Doherty, and Kevin Schmucker have brought this action under 42 U.S.C. §1983 and 28 U.S.C. §§2201-02 against New York Governor Andrew Cuomo, the Empire State Development Corporation (“ESD”), and Elizabeth R. Fine, Deputy Commissioner of the New York State Department of Economic Development. Dkt. No. 1 (“Complaint”). Plaintiffs assert that Defendants violated several provisions of the U.S. Constitution, in particular the Second Amendment, when, in response to the COVID-19 pandemic, they deemed gun shops not to be essential businesses and ordered them closed. Id. Now before the Court are the parties’ cross-motions for summary judgment. Plaintiffs seek a declaratory judgment holding unconstitutional ESD’s determination that retailers of firearms and ammunition are non-essential except when doing business with police and military customers. Dkt. Nos. 13 (“Plaintiffs’ Motion”); 14 (“Plaintiffs’ Memorandum”); 15 (“Plaintiffs’ Statement of Material Facts” or “Plaintiffs’ SMF”). Defendants oppose Plaintiffs’ Motion and have cross-moved for summary judgment in their own right, seeking dismissal of the Complaint. Dkt. Nos. 24 (“Defendants’ Cross-Motion”); 24-1 (“Defendants’ Memorandum”); 24-2 (“Defendants’ Response to Plaintiffs’ SMF” and “Defendants’ SMF”). Plaintiffs oppose Defendants’ Cross-Motion. Dkt. Nos. 27 (“Plaintiffs’ Reply”); 26-1 (“Plaintiffs’ Response to Defendants’ SMF”). Because the Court concludes that the challenged regulations survive intermediate scrutiny, the Court denies Plaintiffs’ Motion and grants Defendants’ Cross-Motion. II. BACKGROUND A. Factual Background The following facts are undisputed, except where otherwise noted. Where necessary, the Court provides additional details in its analysis. 1. The COVID-19 Pandemic COVID-19 is a highly infectious respiratory disease caused by a newly discovered coronavirus. Defs.’ SMF 1. Because there is no pre-existing immunity to this coronavirus, the disease has spread quickly around the globe and poses a serious public health risk. Id. 2. In response to the virus’ spread around the United States, the President of the United States declared a national emergency on March 13, 2020. Id. 5. According to the Centers for Disease Control and Prevention (“CDC”), COVID-19 primarily spreads via person-to-person contact and may be spread not only by those who have symptoms, but also by those who are asymptomatic. Id. 12. Given COVID-19′s infection rate, “slowing its spread is most effectively accomplished through the implementation of density reduction policies limiting person-to-person contact as much as possible, and the use of ‘social distancing’ where other measures are not feasible.” Id. 13. 2. The Parties Plaintiff Dark Storm is a limited liability corporation formed and existing under the laws of the State of New York. Dkt. No. 18 (“Newman Declaration”) 3. Dark Storm is licensed under federal and state law to engage in the business of selling firearms and ammunition in New York, and has a principal place of business in Oakdale, New York. Id.; Dkt. No. 17 (“Morrisey Declaration”) 3. Plaintiffs Doherty and Schmucker (together, “Individual Plaintiffs”) are customers who sought to purchase weapons from Dark Storm, but were unable to because, as described below, Dark Storm was forced to close in response to the COVID-19 pandemic. Compl.
3-4. Defendant Cuomo is the governor of the State of New York. Id. 5. The parties dispute the nature of Defendant ESD. Plaintiffs claim that ESD is nothing more than “a domestic business corporation.” Pls.’ SMF 12 (citing Dkt. No. 16-5 (records from the New York Department of State Division of Corporations stating that “Empire State Development Corporation” is a New York State “domestic business corporation”)). By contrast, Defendants state, somewhat cryptically, that “‘Empire State Development’ is the term used to collectively describe the New York State Department of Economic Development and the New York State Urban Development Corporation.”1 Dkt. No. 24-16 (“Fine Declaration”) 19. Defendant Fine is Deputy Commissioner of the New York State Department of Economic Development (“DED”) and Executive Vice President and General Counsel for the New York State Urban Development Corporation (“UDC”). Fine Decl. 1. DED is a New York State agency and UDC is a public benefit corporation. Id. 3. New York’s Response and the Executive Orders Here in New York, as COVID-19 cases mounted, Governor Cuomo issued Executive Order 202, pursuant to NYS Executive Law Article 2-B, §28, in which he declared a state of emergency effective March 7, 2020 for the entire State of New York. Defs.’ SMF 6. The Governor continued to issue executive orders — such as those temporarily closing schools and cancelling all social gatherings — as New York’s response to the virus evolved. Pls.’ SMF 1; Defs.’ SMF
