Gun-speech case fails on qualified immunity

A gun rights advocacy group sued the State of New York after it directed insurance companies to consider the reputational risks arising from their association with the National Rifle Association and similar organizations. When the Department of Financial Services (a state agency) met with Lloyd's of London (a prominent insurance company) to express concern about insurance policies circulating in the gun world that would provide coverage for intentional and reckless shootings, Lloyds announced it had directed its underwriters to terminate all insurance policies related to the NRA and related organizations and to stop providing insurance to the NRA in the future. 

The Second Circuit, a few years ago, said the NRA did not have a First Amendment case against the state arising from this sequence of events, but the Supreme Court reversed and said the NRA had a case. The case returned to the Second Circuit to see if the individual defendant is protected by qualified immunity.

The case is NRA v. Vullo, issued on July 17. The NRA argues that the state is punishing it over its pro-gun advocacy. The concern was that these insurance policies violated state law because they protected gun owners from intentional or reckless shootings. Originally, the Second Circuit said the lawsuit must fail because the NRA failed to plausibly allege that the DFS official, Vullo, had unconstitutionally threatened or coerced Lloyds to stifle the NRA's speech because Vullo was simply doing her job at DFS in enforcing the law. But the Supreme Court disagreed, finding that the NRA did state a claim because the government cannot coerce a private party to punish or suppress someone else's disfavored speech.

The Second Circuit (Chin, Carney and Robinson) must now determine whether Vullo can invoke qualified immunity, which applies when the constitutional violation was not clearly-established. If the case law was fuzzy or unclear or nonexistent, then the government defendant cannot be expected to know she is violating the law. If the theory of liability is too novel, then the individual defendant cannot be liable. 

The bottom line: while the Supreme Court said the NRA plausibly asserted a viable First Amendment claim, prior law was not clear on this issue. While there have been cases holding that you cannot coerce someone over their expressive speech activity, the law was not clear that such coercion arising from an entity's non-expressive conduct would violate the First Amendment. Since this case involves non-expressive conduct on the NRA's part, Vullo gets qualified immunity. As the Second Circuit states, "we can surmise only that a reasonable officer in Vullo's position likely would have thought that her conduct -- which targeted regulated entities for concededly illegal, nonexpressive activities and only indirectly affected the NRA -- was permissible." At least against Vullo, the case is over.