National Rifle Association of America v. Maria T. Vullo
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Opinion
21-636-cv National Rifle Association of America v. Maria T. Vullo
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2021
(Argued: January 13, 2022 Decided: September 22, 2022)
Docket No. 21-636-cv
NATIONAL RIFLE ASSOCIATION OF AMERICA, Plaintiff-Appellee,
v.
MARIA T. VULLO, both individually and in her former official capacity, Defendant-Appellant.*
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
Before: POOLER, CHIN, and CARNEY, Circuit Judges.
Interlocutory appeal from that portion of a decision and order of the
United States District Court for the Northern District of New York (McAvoy, J.),
* The Clerk of the Court is directed to amend the caption to conform to the above. denying the motion of defendant-appellant Maria T. Vullo, the former
Superintendent of the New York State Department of Financial Services, to
dismiss certain claims against her for qualified immunity. Plaintiff-appellee
National Rifle Association of America sued Vullo for violating its rights to free
speech and equal protection when she investigated three insurance companies
that had partnered with it to provide coverage for losses resulting from the use
of guns and encouraged banks and insurance companies to consider
discontinuing their relationships with gun promotion organizations. The district
court dismissed the equal protection claim on the basis that Vullo was protected
by absolute immunity, but it declined to dismiss the free speech claims,
concluding that the NRA plausibly alleged its claims and issues of fact existed as
to whether she was protected by qualified immunity.
REVERSED AND REMANDED.
ANDREW G. CELLI JR. (Debra L. Greenberger and Marissa R. Benavides, on the brief), Emery Celli Brinckerhoff Abady Ward & Maazel LLP, New York, NY, for Defendant-Appellant.
SARA B. ROGERS (William A. Brewer III and Mordecai Geisler, on the brief), Brewer, Attorneys & Counselors, New York, NY, for Plaintiff-Appellee.
2 CHIN, Circuit Judge:
In this case, plaintiff-appellee National Rifle Association of America
(the "NRA") claims that defendant-appellant Maria T. Vullo, the former
Superintendent of the New York State Department of Financial Services ("DFS"),
violated its rights to free speech and equal protection when she investigated
three insurance companies that had partnered with it to provide coverage for
losses resulting from gun use and encouraged banks and insurance companies to
consider discontinuing their relationships with gun promotion organizations.
The NRA contends that Vullo used her regulatory power to threaten NRA
business partners and coerce them into disassociating with the NRA, in violation
of its rights.
In October 2017, based on a referral from the New York County
District Attorney's Office (the "DA's Office"), DFS opened an investigation into
the legality of certain NRA-endorsed insurance programs that provided coverage
for losses caused by licensed firearm use, even in circumstances where the
insured intentionally killed or injured someone or otherwise engaged in
intentional wrongdoing. Eventually, in 2018, three DFS-regulated entities
3 entered into consent decrees with DFS, whereby they acknowledged that some of
their NRA-endorsed insurance programs violated New York law.
In April 2018, in the wake of the tragic school shooting in Parkland,
Florida, which resulted in the death of seventeen students and staff, Vullo, in her
capacity as Superintendent of DFS, spoke out against gun violence. She did so
through industry-directed "guidance letters" and a press statement issued by the
New York State Governor's Office. She called upon banks and insurance
companies doing business in New York to consider the risks, including
"reputational risks," that might arise from doing business with the NRA or
"similar gun promotion organizations," and she urged the banks and insurance
companies to "join" other companies that had discontinued their associations
with the NRA. J. App'x at 181, 184-7.
Thereafter, multiple entities indeed severed their ties or determined
not to do business with the NRA. The NRA then brought this action against
Vullo, DFS, then-Governor Andrew Cuomo, and Linda A. Lacewell (who had
succeeded Vullo as Superintendent of DFS).1 The district court eventually
1 Vullo left DFS on February 1, 2019. See Statement, Maria T. Vullo, N.Y. State Dep't of Fin. Servs. Superintendent, Superintendent Maria T. Vullo to Depart DFS After Three Years of Service to New Yorkers (Dec. 19, 2018), https://www.dfs.ny.gov/reports_ and_publications/statements_comments/2018/st1812191. 4 dismissed all claims except the First Amendment claims against Vullo,
concluding that the NRA plausibly alleged those claims and that issues of fact
existed as to whether she was protected by qualified immunity with respect to
those claims. Vullo appeals.
The First Amendment forbids government officials from "abridging
the freedom of speech." U.S. Const. amend. I; see Zieper v. Metzinger, 474 F.3d 60,
66 (2d Cir. 2007). Government officials cannot, for example, use their regulatory
powers to coerce individuals or entities into refraining from protected speech.
At the same time, however, government officials have a right -- indeed, a duty --
to address issues of public concern. Here, for the reasons discussed below, we
conclude that the NRA has failed to plausibly allege that Vullo "crossed the line
'between attempts to convince and attempts to coerce.'" Zieper, 474 F.3d at 66
(quoting Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003) (per curiam)).
Moreover, even assuming that Vullo's actions and statements were somehow
coercive, we conclude further that her conduct here -- taking actions and making
statements in her various capacities as regulator, enforcement official,
policymaker, and representative of New York State -- did not violate clearly
established law. Rather, the only plausible conclusion to be drawn is that Vullo
5 acted reasonably and in good faith in endeavoring to meet the duties and
responsibilities of her office.
Accordingly, we REVERSE and REMAND for the district court to
dismiss the remaining claims against Vullo.
STATEMENT OF THE CASE
Where the district court decides a qualified immunity defense on a
motion to dismiss, we accept the material facts alleged in the complaint as true
and draw all reasonable inferences in favor of the plaintiff -- here, the NRA.
Liberian Cmty. Ass'n of Conn. v. Lamont, 970 F.3d 174, 186 (2d Cir. 2020).
I. The Facts
The following facts are drawn from the NRA's second amended
complaint (the "Complaint"), the exhibits attached thereto, and documents
integral to and referenced in it. See Cohen v. Rosicki, Rosicki & Assocs., P.C., 897
F.3d 75, 80 (2d Cir. 2018).
A. The Investigation
In September 2017, the DA's Office advised DFS of the apparent
illegality of an NRA-endorsed affinity insurance program called "Carry Guard."
Carry Guard provided coverage for losses caused by licensed firearm use,
6 including criminal defense costs resulting from using a firearm with excessive
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21-636-cv National Rifle Association of America v. Maria T. Vullo
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2021
(Argued: January 13, 2022 Decided: September 22, 2022)
Docket No. 21-636-cv
NATIONAL RIFLE ASSOCIATION OF AMERICA, Plaintiff-Appellee,
v.
MARIA T. VULLO, both individually and in her former official capacity, Defendant-Appellant.*
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
Before: POOLER, CHIN, and CARNEY, Circuit Judges.
Interlocutory appeal from that portion of a decision and order of the
United States District Court for the Northern District of New York (McAvoy, J.),
* The Clerk of the Court is directed to amend the caption to conform to the above. denying the motion of defendant-appellant Maria T. Vullo, the former
Superintendent of the New York State Department of Financial Services, to
dismiss certain claims against her for qualified immunity. Plaintiff-appellee
National Rifle Association of America sued Vullo for violating its rights to free
speech and equal protection when she investigated three insurance companies
that had partnered with it to provide coverage for losses resulting from the use
of guns and encouraged banks and insurance companies to consider
discontinuing their relationships with gun promotion organizations. The district
court dismissed the equal protection claim on the basis that Vullo was protected
by absolute immunity, but it declined to dismiss the free speech claims,
concluding that the NRA plausibly alleged its claims and issues of fact existed as
to whether she was protected by qualified immunity.
REVERSED AND REMANDED.
ANDREW G. CELLI JR. (Debra L. Greenberger and Marissa R. Benavides, on the brief), Emery Celli Brinckerhoff Abady Ward & Maazel LLP, New York, NY, for Defendant-Appellant.
SARA B. ROGERS (William A. Brewer III and Mordecai Geisler, on the brief), Brewer, Attorneys & Counselors, New York, NY, for Plaintiff-Appellee.
2 CHIN, Circuit Judge:
In this case, plaintiff-appellee National Rifle Association of America
(the "NRA") claims that defendant-appellant Maria T. Vullo, the former
Superintendent of the New York State Department of Financial Services ("DFS"),
violated its rights to free speech and equal protection when she investigated
three insurance companies that had partnered with it to provide coverage for
losses resulting from gun use and encouraged banks and insurance companies to
consider discontinuing their relationships with gun promotion organizations.
The NRA contends that Vullo used her regulatory power to threaten NRA
business partners and coerce them into disassociating with the NRA, in violation
of its rights.
In October 2017, based on a referral from the New York County
District Attorney's Office (the "DA's Office"), DFS opened an investigation into
the legality of certain NRA-endorsed insurance programs that provided coverage
for losses caused by licensed firearm use, even in circumstances where the
insured intentionally killed or injured someone or otherwise engaged in
intentional wrongdoing. Eventually, in 2018, three DFS-regulated entities
3 entered into consent decrees with DFS, whereby they acknowledged that some of
their NRA-endorsed insurance programs violated New York law.
In April 2018, in the wake of the tragic school shooting in Parkland,
Florida, which resulted in the death of seventeen students and staff, Vullo, in her
capacity as Superintendent of DFS, spoke out against gun violence. She did so
through industry-directed "guidance letters" and a press statement issued by the
New York State Governor's Office. She called upon banks and insurance
companies doing business in New York to consider the risks, including
"reputational risks," that might arise from doing business with the NRA or
"similar gun promotion organizations," and she urged the banks and insurance
companies to "join" other companies that had discontinued their associations
with the NRA. J. App'x at 181, 184-7.
Thereafter, multiple entities indeed severed their ties or determined
not to do business with the NRA. The NRA then brought this action against
Vullo, DFS, then-Governor Andrew Cuomo, and Linda A. Lacewell (who had
succeeded Vullo as Superintendent of DFS).1 The district court eventually
1 Vullo left DFS on February 1, 2019. See Statement, Maria T. Vullo, N.Y. State Dep't of Fin. Servs. Superintendent, Superintendent Maria T. Vullo to Depart DFS After Three Years of Service to New Yorkers (Dec. 19, 2018), https://www.dfs.ny.gov/reports_ and_publications/statements_comments/2018/st1812191. 4 dismissed all claims except the First Amendment claims against Vullo,
concluding that the NRA plausibly alleged those claims and that issues of fact
existed as to whether she was protected by qualified immunity with respect to
those claims. Vullo appeals.
The First Amendment forbids government officials from "abridging
the freedom of speech." U.S. Const. amend. I; see Zieper v. Metzinger, 474 F.3d 60,
66 (2d Cir. 2007). Government officials cannot, for example, use their regulatory
powers to coerce individuals or entities into refraining from protected speech.
At the same time, however, government officials have a right -- indeed, a duty --
to address issues of public concern. Here, for the reasons discussed below, we
conclude that the NRA has failed to plausibly allege that Vullo "crossed the line
'between attempts to convince and attempts to coerce.'" Zieper, 474 F.3d at 66
(quoting Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003) (per curiam)).
Moreover, even assuming that Vullo's actions and statements were somehow
coercive, we conclude further that her conduct here -- taking actions and making
statements in her various capacities as regulator, enforcement official,
policymaker, and representative of New York State -- did not violate clearly
established law. Rather, the only plausible conclusion to be drawn is that Vullo
5 acted reasonably and in good faith in endeavoring to meet the duties and
responsibilities of her office.
Accordingly, we REVERSE and REMAND for the district court to
dismiss the remaining claims against Vullo.
STATEMENT OF THE CASE
Where the district court decides a qualified immunity defense on a
motion to dismiss, we accept the material facts alleged in the complaint as true
and draw all reasonable inferences in favor of the plaintiff -- here, the NRA.
Liberian Cmty. Ass'n of Conn. v. Lamont, 970 F.3d 174, 186 (2d Cir. 2020).
I. The Facts
The following facts are drawn from the NRA's second amended
complaint (the "Complaint"), the exhibits attached thereto, and documents
integral to and referenced in it. See Cohen v. Rosicki, Rosicki & Assocs., P.C., 897
F.3d 75, 80 (2d Cir. 2018).
A. The Investigation
In September 2017, the DA's Office advised DFS of the apparent
illegality of an NRA-endorsed affinity insurance program called "Carry Guard."
Carry Guard provided coverage for losses caused by licensed firearm use,
6 including criminal defense costs resulting from using a firearm with excessive
force to protect persons or property, even if the insured was found to have acted
with criminal intent. In other words, it insured New York residents for
intentional, reckless, and criminally negligent acts with a firearm that injured or
killed another person. Policies issued through Carry Guard were underwritten
by Illinois Union Insurance Company, a subsidiary of Chubb Limited, doing
business as Chubb ("Chubb"), and administered by Lockton Companies, LLC
("Lockton").
The next month, DFS opened an investigation into Carry Guard,
focusing on Lockton and Chubb. The investigation revealed that Carry Guard
and at least two other NRA-endorsed programs violated New York insurance
law for providing, among other things, insurance coverage for intentional
criminal acts. Additionally, it found that the NRA aggressively promoted Carry
Guard without an insurance producer license -- a separate violation of New York
insurance law. By November 17, 2017, both Lockton and Chubb suspended the
Carry Guard program and stopped offering it to New York residents for
purchase.
7 The investigation also revealed that a third entity, the insurance
marketplace Lloyd's of London and its related syndicates (together, "Lloyd's"),
served as underwriter for at least eleven other NRA-endorsed programs with
similar policy coverages. Like Carry Guard, the other NRA-endorsed programs
provided liability defense coverage for criminal proceedings resulting from
firearm use even where the insured acted with criminal intent.2 Lockton
administered these insurance programs for Lloyd's.
B. The Parkland Shooting
On February 14, 2018, while the investigation was underway, a
shooter armed with a semiautomatic weapon opened fire at Marjory Stoneman
Douglas High School in Parkland, Florida, killing seventeen high school students
and staff.3 In the wake of the shooting, the NRA and other gun promotion
groups faced intense backlash.4 Many government officials and major American
2 The NRA-endorsed insurance program provided by Lockton and Chubb went by the name "Carry Guard," but similar programs provided by Lloyd's went by other names, including "Self-Defense Insurance," "Second-Call Defense Insurance," and "Retired Law Enforcement Officer Self-Defense Insurance." J. App'x at 231 ¶ 6(a)-(c). 3 See, e.g., Bernie Woodall & Zachary Fagenson, Paradise Lost: Massacre Jolts Florida's 'Safest City,' Reuters (Feb. 15, 2018, 4:50 PM), https://www.reuters.com/article/ us-florida-shooting-town/paradise-lost-massacre-jolts-floridas-safest-city- idUSKCN1FZ2WY. 4 See, e.g., Daniel Trotta, Shunned by Corporations, U.S. Gun Entrepreneurs Launch Start-Ups, Reuters (May 5, 2018, 11:04 AM), https://www.reuters.com/article/usa-guns- nra/shunned-by-corporations-u-s-gun-entrepreneurs-launch-start-ups-idUSL1N1S9255. 8 business institutions spoke out against gun violence, and some companies
publicly severed ties with gun promotion organizations like the NRA.5
C. The Lloyd's Meetings
Shortly after the Parkland shooting, in late February 2018, Vullo met
with senior executives of Lloyd's and one of its United States affiliates.6 At the
meetings, Vullo "presented [her] views on gun control and [her] desire to
leverage [her] powers to combat the availability of firearms." J. App'x at 161
¶ 67. She explained the basis for her belief that Lloyd's was violating several
provisions of New York insurance law. Id. at 144 ¶ 21 (stating that Vullo
"discussed an array of technical regulatory infractions plaguing the affinity-
insurance marketplace"). She then explained how Lloyd's could come into
compliance and "avoid liability" for its regulatory infractions, id. at 162 ¶ 69,
5 See Jenna Johnson et al., Trump, Citing 'Evil Massacre' in Florida, Starts Talking About Gun Control, Wash. Post (Feb. 20, 2018, 10:37 PM), https://www.washingtonpost .com/politics/trump-citing-evil-massacre-in-florida-starts-talking-about-gun-control /2018/02/20/8da6dd7e-1683-11e8-b681-2d4d462a1921_story.html; see also Tim Mak, NRA Facing Most Formidable Opposition Yet, a Year After Parkland, NPR (Feb. 14, 2019, 12:02 AM), https://www.npr.org/2019/02/14/ 693929383/nra-facing-most-formidable- opposition-yet-a-year-after-parkland ("For the National Rifle Association, the year since the Parkland shooting has led to a changing -- and less favorable -- political landscape."). 6 Although the Complaint uses the plural "meetings," it seems to describe only one meeting. J. App'x at 161 ¶ 67. Drawing all reasonable inferences in the NRA's favor, we conclude that there were multiple meetings held on or about February 27, 2018. 9 including by no longer "providing insurance to gun groups" like the NRA, id. at
144 ¶ 21. Vullo also sought Lloyd's aid in "DFS's campaign against gun groups."
Id. at 162-63 ¶ 69.7
D. The Guidance Letters and Press Release
On April 19, 2018 -- approximately two months after the Parkland
shooting and six months after DFS opened its investigation into the NRA-
endorsed insurance programs -- Vullo weighed in publicly on the issue of gun
violence. She issued a pair of guidance letters entitled "Guidance on Risk
Management Relating to the NRA and Similar Gun Promotion Organizations";
one was addressed to DFS-regulated insurance entities and the other to DFS-
regulated financial institutions (the "Guidance Letters"). J. App'x at 182-87. The
Guidance Letters referenced the Parkland shooting and other mass shootings and
condemned the increasing "tragic devastation caused by gun violence" as a
"public safety and health issue." Id. at 183. The Guidance Letters also advised
that these tragedies had resulted in strong social backlash against the NRA and
7 The Complaint is replete with conclusory allegations that Vullo's statements and actions were "threatening" and "coercive." See, e.g., J. App'x at 170 ¶ 92. As we discuss below, what Vullo did and said are factual assertions; whether the actions were "threatening" and "coercive" in a First Amendment violation sense is a conclusion. We are free to consider whether that conclusion is plausible in light of the supporting factual assertions. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). 10 similar organizations and predicted that the backlash would increase after the
Parkland shooting.
Citing the changing public sentiment and views as to corporate
social responsibility, the Guidance Letters encouraged DFS-regulated entities to
"continue evaluating and managing their risks, including reputational risks, that
may arise from their dealings with the NRA or similar gun promotion
organizations, if any, as well as continued assessment of compliance with their
own codes of social responsibility." Id. at 183-84, 186-87. The Guidance Letters
did not refer to any ongoing investigations or enforcement actions, such as those
regarding Carry Guard or its related programs.
The same day, Cuomo issued a press statement announcing that he
had directed DFS to "urge insurers and bankers statewide to determine whether
any relationship they may have with the NRA or similar organizations sends the
wrong message to their clients and their communities who often look to them for
guidance and support." Id. at 180-81 (the "Press Release"). Vullo was quoted in
the Press Release as stating that "business can lead the way and bring about the
kind of positive social change needed to minimize the chance that we will
witness more of these senseless tragedies," and urging "all insurance companies
11 and banks doing business in New York to join the companies that have already
discontinued their arrangements with the NRA, and to take prompt actions to
manage these risks and promote public health and safety." Id. at 181.
E. The Consent Decrees
In May 2018, Lockton and Chubb entered into consent decrees with
DFS. On May 2 and 7, 2018, DFS issued press releases explaining the content of
the Lockton and Chubb consent decrees, respectively, its investigation into Carry
Guard, and the relevant insurance law violations. Lloyd's entered into a consent
decree with DFS a few months later in December 2018 (together with the Lockton
and Chubb consent decrees, the "Consent Decrees").
In the Consent Decrees, the three entities agreed that some NRA-
endorsed insurance programs they offered violated New York insurance law,
they would no longer provide those or other illegal insurance programs to the
NRA or New York residents, and they would pay fines.8 The Consent Decrees
also imposed numerous prohibitions on the entities' abilities to engage in certain
8 Lockton agreed to pay a $7,000,000 fine. Chubb agreed to pay a $1,300,000 fine. Lloyd's agreed to pay a $5,000,000 fine. All three entities agreed to cancel and no longer offer several NRA insurance programs that violated New York insurance law, and not to enter into any agreement or program with the NRA to underwrite or participate in any affinity-type insurance program involving any line of insurance coverage to New York residents or entities. 12 insurance programs and required Chubb and Lloyd's to do "reasonable due
diligence" to ensure that any entity they do business with in the future "is acting
in compliance with the Insurance Law." Id. at 216 (Chubb Consent Decree), 236
(Lloyd's Consent Decree).
Notably, each Consent Decree expressly allowed the entities to
continue to do business with the NRA. The Lockton Consent Decree provided
that "Lockton may assist the NRA in procuring insurance for the NRA's own
corporate operations." Id. at 201 ¶ 43. The Chubb Consent Decree provided that
"the NRA may itself purchase insurance from Chubb for the sole purpose of
obtaining insurance for the NRA's own corporate operations." Id. at 216 ¶ 22.
And the Lloyd's Consent Decree provided that "the NRA may itself purchase
insurance from [Lloyd's] for the sole purpose of obtaining insurance for the
NRA's own corporate operations." Id. at 236 ¶ 20.
F. The Market Reaction
After the Parkland shooting, "multiple financial institutions" severed
ties or decided not to do business with the NRA. Id. at 136.
For instance, the NRA received a call from Lockton's chairman on
February 25, 2018, eleven days after the Parkland shooting, but months before
13 the issuance of the Guidance Letters, Press Release, and Consent Decrees, and
days before Vullo met with the Lloyd's executives. On the call, the chairman
stated that Lockton privately wished to do business with the NRA but had to
"drop" the NRA for fear of losing its license to do business in New York. Id. at
152 ¶ 42. The next day, Lockton publicly tweeted that it would discontinue
providing brokerage services for all NRA-endorsed insurance programs.
About two weeks after the Parkland shooting, but again before any
of Vullo's relevant public statements, the NRA's corporate insurance carrier
withdrew from renewal negotiations and stated that it was "unwilling to renew
coverage at any price." Id. at 152 ¶ 44 (emphasis omitted). After the carrier's
withdrawal, the NRA "encountered serious difficulties obtaining corporate
insurance coverage to replace" the coverage it lost. Id. at 167 ¶ 81. "Multiple
banks" also withdrew their bids from the NRA's Request for Proposal process in
the spring of 2018. Id. at 167 ¶ 82.
Additionally, the NRA cites a blog post and a magazine article for
examples of general market reaction to the Guidance Letters and Press Release.
It first refers to a blog post published by FinRegRag on April 22, 2018. The blog
post opined that the Press Release "could easily be construed as a thinly veiled
14 threat" and "could also be seen as an attempt to suppress political speech that
some New York policy makers disagree with." Brian Knight, Is New York Using
Bank Regulation to Suppress Speech?, FinRegRag (Apr. 22, 2018), https://finregrag
.com/is-new-york-using-bank-regulation-to-suppress-speech-ac61a7cb3bf. The
post noted that although Vullo's statement did not indicate that DFS-regulated
entities may face adverse regulatory action for failing to cut ties with the NRA,
"it [didn't] rule out the possibility either." Id.
Next, the NRA refers to a magazine article published by American
Banker on April 26, 2018. The article reported on the Guidance Letters and
surveyed industry reactions:
The guidance appeared somewhat benign, calling on state-chartered banks and other financial services firms to rethink ties they have with the National Rifle Association and other firearms-industry groups in the wake of the mass shootings. The regulator encouraged banks to weigh reputational risk and other corporate responsibility factors in assessing their relationships.
But bankers say such regulatory guidelines are frustratingly vague, and can effectively compel institutions to cease catering to legal businesses.
Neil Haggerty, Gun Issue Is a Lose-Lose for Banks (Whatever Their Stance), Am.
Banker (Apr. 26, 2018, 1:11 PM), https://www.americanbanker.com/news/gun-
issue-is-a-lose-lose-for-banks-whatever-their-stance. A senior consulting
15 associate at Capital Performance Group was quoted in the article as saying the
following: "Banks increasingly must consider political issues as part of their risk
management decision-making process," which requires "more proactive and
broader considerations of reputation risk as part of risk models and calculations."
Id. On the other hand, an anonymous banker from upstate New York was
quoted as saying the Guidance Letters "felt somewhat politically motivated" and
"[i]t's hard to know what the rules are if I don't know what the rules are." Id.
On May 9, 2018, Lloyd's publicly announced its decision to
terminate its insurance-related relationship with the NRA. Two days later, the
NRA brought this suit.
II. The Proceedings Below
This case comes before us on interlocutory appeal after extensive
proceedings spanning more than four years in the lower court. The NRA filed
three complaints and Vullo filed four motions to dismiss. We discuss only the
proceedings necessary for an understanding of our holding.
The district court issued its decision and order on March 15, 2021,
dismissing all claims against Cuomo, Lacewell, and DFS, as well as the selective
enforcement claim against Vullo. The district court declined, however, to
16 dismiss two First Amendment claims against Vullo. The first claim alleges that
Vullo established an unconstitutional implicit censorship regime in an effort to
chill the NRA's protected speech and the second claim alleges that Vullo
unconstitutionally retaliated against the NRA for its protected speech. The
district court first held that the NRA sufficiently pleaded First Amendment
violations. It then concluded that Vullo was not entitled to qualified immunity at
the motion-to-dismiss stage, even though it was "inclined to agree with Ms. Vullo
that there is no case clearly establishing that otherwise protected public
statements transform into an unlawful threat merely because there is an ongoing,
and unrelated, regulatory investigation." Special App'x at 25. The court
explained that:
a question of material fact exists as to whether Ms. Vullo explicitly threatened Lloyd's with DFS enforcement if the entity did not disassociate with the NRA. . . . Further, because Ms. Vullo's alleged implied threats to Lloyd's and promises of favorable treatment if Lloyd's disassociated with the NRA could be construed as acts of bad faith in enforcing the Insurance Law in New York, a question of material fact exists as to whether she is entitled to qualified immunity under New York law.
Id. at 27.
This appeal followed.
17 DISCUSSION
Vullo contends that she is protected by qualified immunity and thus
she asks this Court to reverse the district court's order to the extent it denied her
motion to dismiss. The NRA disagrees and argues in addition that this Court
lacks jurisdiction to hear this interlocutory appeal. We conclude that, first, we
have jurisdiction to hear the appeal and, second, Vullo is entitled to qualified
immunity. Accordingly, we reverse the district court's denial of Vullo's motion
to dismiss and remand for dismissal of the remaining claims against her.
I. Appellate Jurisdiction
The NRA asks this Court to dismiss Vullo's appeal for lack of
jurisdiction, contending the district court's decision turned only on questions of
fact and Vullo disputes the facts as alleged.9
Generally, a district court's denial of a motion to dismiss is not a
"final decision" under 28 U.S.C. § 1291. Drimal v. Tai, 786 F.3d 219, 223 (2d Cir.
9 The NRA also complains that Vullo denies meeting privately with the Lloyd's executives in February 2018, contradicting the Complaint and thus precluding interlocutory appeal. But Vullo makes clear that to the extent she asserts "the allegations lodged against her by the NRA are false," she does so "not because she fails to understand or accept the procedural posture in which this case rests" but "to protect her hard-earned professional and personal reputation and as a matter of integrity." Reply. Br. at 7 n.5. We do not consider these statements in deciding the legal issues before us on appeal. 18 2015). But qualified immunity is a defense to litigation rather than a mere
defense to liability; it is lost if a case is erroneously permitted to go to trial.
Pearson v. Callahan, 555 U.S. 223, 231 (2009); see also Wood v. Moss, 572 U.S. 744,
755 n.4 (2014) (noting that the Supreme Court has repeatedly stressed the
importance of deciding immunity questions at the earliest possible stage of
litigation). Accordingly, we may review the denial of a motion to dismiss based
on qualified immunity, on an interlocutory basis, to the extent it turns on issues
of law. See Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996).
If a district court's decision turns on questions of evidence
sufficiency alone (i.e., which alleged facts a party may, or may not, be able to
prove at trial), it is not immediately appealable. Id. But a decision is not
insulated from review simply because the district court declared that genuine
issues of fact exist. Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene,
746 F.3d 538, 542 (2d Cir. 2014). "Rather, where a district court denies a
defendant qualified immunity, there is appellate jurisdiction over that
defendant's interlocutory appeal if the defendant contests the existence of a
dispute or the materiality as a matter of law, or contends that he is entitled to
19 qualified immunity even under the plaintiff's version of the facts." Id. (cleaned
up).
Here, Vullo certainly contests the existence of material issues of fact
and contends as well that she is entitled to qualified immunity even under the
NRA's version of the facts. At a minimum, we have jurisdiction to determine
whether she is right.
Indeed, where a defendant accepts the facts as alleged for purposes
of the appeal (thereby removing any issues of fact), we may review the legal
issues on interlocutory appeal. Id.; see also Soto v. Gaudett, 862 F.3d 148, 158 (2d
Cir. 2017). We have recognized the following as "strictly legal" questions
reviewable on interlocutory appeal: (1) whether the plaintiff sufficiently pleaded
the violation of a constitutional right and (2) whether, at the time of the alleged
violation, the defendant's actions, as alleged by the plaintiff, violated clearly
established law. Tellier v. Fields, 280 F.3d 69, 78-79 (2d Cir. 2000). Here, the
district court concluded that "a question of material fact exist[ed] as to whether
Ms. Vullo explicitly threatened Lloyd's with DFS enforcement if the entity did
not disassociate with the NRA," Special App'x at 27, but Vullo has made clear in
her briefs on appeal that she accepts the well-pleaded facts of the Complaint for
20 purposes of the appeal. While she first argues that the Complaint alleges only
conclusions and characterizations, which she need not accept as true, she
assumes in the alternative that the Complaint alleges that she met with the
Lloyd's executives and offered leniency in exchange for help advancing her
policy goals and incorporates that allegation into her merits argument.
Moreover, she does not dispute what she said in the Guidance Letters, the Press
Release, or the Consent Decrees, or that she oversaw the investigation; the public
record captures her words and actions in those respects. She thus accepts the
facts as alleged, and we may consider her qualified immunity defense based on
these assumed facts. Hence, we have jurisdiction over this appeal, and we turn
to the merits.
II. The Merits
We review the denial of a motion to dismiss based on qualified immunity
de novo. Ganek v. Leibowitz, 874 F.3d 73, 80 (2d Cir. 2017).
A. Applicable Law
1. Pleading Standards
To sufficiently plead a constitutional violation, a complaint must
allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl.
21 Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Iqbal, 556 U.S. at 678. We accept as
true factual allegations but not conclusions, such as statements concerning a
defendant's state of mind. Iqbal, 556 U.S. at 681 ("To be clear, we do not reject
these bald allegations on the ground that they are unrealistic or nonsensical. . . .
It is the conclusory nature of respondent's allegations, rather than their
extravagantly fanciful nature, that disentitles them to the presumption of truth.");
see also Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 321 (2d Cir. 2021).10
To determine whether a claim is plausible, we must separate the
complaint's factual allegations from its conclusions and then determine whether
the remaining well-pleaded factual allegations plausibly allege entitlement to
relief. Whiteside, 995 F.3d at 321. This analysis is "context specific, requiring the
reviewing court to draw on its judicial experience and common sense." Iqbal, 556
U.S. at 663-64; accord Lynch v. City of New York, 952 F.3d 67, 74 (2d Cir. 2020). A
claim is plausibly alleged "when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
10 For further discussion of this issue, see Howard M. Erichson, What's the Difference Between a Conclusion and a Fact?, 41 Cardozo L. Rev. 899, 904 (2020) ("[Twombly and Iqbal] relied on a distinction between factual conclusions (whether the Twombly defendants agreed not to compete, whether Ashcroft and Mueller intended to discriminate) and factual supporting allegations (what the telecommunications companies said and did, what Ashcroft and Mueller said and did)."). 22 misconduct alleged." Iqbal, 556 U.S. at 678. But where the facts do not permit us
to "infer more than the mere possibility of misconduct," the complaint has not
plausibly alleged a claim. Id. at 679.
2. Qualified Immunity
Qualified immunity shields government officials performing
discretionary functions from suits for money damages unless their conduct
violates clearly established law of which a reasonable official would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It gives government officials the
breathing room to make reasonable, even if mistaken, judgments and protects
"all but the plainly incompetent or those who knowingly violate the law." Malley
v. Briggs, 475 U.S. 335, 341 (1986). It applies unless (1) the plaintiff sufficiently
pleaded a constitutional violation and (2) the law the official allegedly violated
was clearly established and apparent to a reasonable official at the time of the
alleged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); see also Iqbal, 556 U.S.
at 673 ("[W]hether a particular complaint sufficiently alleges a clearly established
violation of law cannot be decided in isolation from the facts pleaded."). Courts
have discretion to decide which of the two prongs to address first, Pearson, 555
U.S. at 236-37, but if the complaint fails to sufficiently plead the violation of a
23 constitutional right, the second question is moot, X-Men Sec., Inc. v. Pataki, 196
F.3d 56, 66 (2d Cir. 1999).11
Although qualified immunity defenses are often decided on motions
for summary judgment, in appropriate circumstances a district court may
address qualified immunity at the pleadings stage. Drimal, 786 F.3d at 225.
3. The First Amendment
The NRA's First Amendment claims turn on whether Vullo's
statements at the Lloyd's meetings and in the Guidance Letters, Press Release,
and Consent Decrees were "implied threats to employ coercive state power to
stifle protected speech." Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 39 (2d
Cir. 1983); see also Zieper, 474 F.3d at 65 (applying Hammerhead to censorship
claim); Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (applying
similar standard to retaliation claim).12
11 The district court's qualified immunity analysis was incomplete in this respect. Vullo is entitled to qualified immunity unless the NRA plausibly alleged a First Amendment violation and "it would . . . have been clear to a reasonable officer in [her] position that [her] conduct was unlawful." Zieper, 474 F.3d at 68. The district court held that issues of fact precluded dismissal, but it did not discuss whether, even if the Complaint stated a First Amendment cause of action, the law was clearly established such that a reasonable officer would have known she was violating the law. 12 Two aspects of the NRA's speech are arguably at issue here: (1) the NRA's long- standing gun promotion advocacy and (2) its Carry Guard program and related business associations. The district court assumed without discussing that the protected
24 Two sets of free speech rights are implicated: those of private
individuals and entities and those of government officials. With respect to the
latter, the First Amendment does not impose a viewpoint-neutrality requirement
on the government's own speech; a government official has the right to speak for
herself (and her agency) and to select the views she wishes to express. Pleasant
Grove City v. Summum, 555 U.S. 460, 467-68 (2009); Johanns v. Livestock Mktg.
Ass'n, 544 U.S. 550, 553 (2005). Under the government speech doctrine, public
officials are generally free to favor certain views over others when they speak.
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207-08 (2015)
("When government speaks, it is not barred by the Free Speech Clause from
determining the content of what it says."); Wandering Dago, Inc. v. Destito, 879
F.3d 20, 34 (2d Cir. 2018) ("When it acts as a speaker, the government is entitled
to favor certain views over others.").
A viewpoint-neutrality requirement is antithetical to a healthy
representative democracy, and when a government official embarks on a course
speech at issue is the NRA's gun promotion advocacy. Of course, such speech is protected by the First Amendment. The Carry Guard program, however, is not, to the extent it violated the law. As a result, the NRA can sufficiently plead its claims only if the Complaint contains enough facts to plausibly allege that Vullo's actions were taken in retaliation for, or in an effort to chill, its gun promotion advocacy. 25 of action, she may well embrace one viewpoint and reject others. Matal v. Tam,
137 S. Ct. 1744, 1757 (2017). The First Amendment does not forbid her from
speaking about her preferred course of action; rather, it gives her the freedom to
advocate for it. Id. Indeed, both parties here agree that Vullo was entitled to
advocate for her political views -- to condemn gun violence and to urge DFS-
regulated entities to consider what they could do to reduce both gun violence
and the reputational risks of doing business with gun promotion groups.
Nevertheless, in certain circumstances, some government speech
may infringe on private individuals' free speech rights. See Hammerhead, 707 F.2d
at 39; Zieper, 474 F.3d at 65 ("It is well-established that First Amendment rights
may be violated by the chilling effect of governmental action that falls short of a
direct prohibition against speech." (internal quotation marks omitted)).
Government officials may not engage in unjustified threats or coercion to stifle
speech. Hammerhead, 707 F.2d at 39. Accordingly, although government officials
are free to advocate for (or against) certain viewpoints, they may not encourage
suppression of protected speech in a manner that "can reasonably be interpreted
as intimating that some form of punishment or adverse regulatory action will
follow the failure to accede to the official's request." Id.
26 "In determining whether a particular request to suppress speech is
constitutional, what matters is the distinction between attempts to convince and
attempts to coerce." Zieper, 474 F.3d at 66 (internal quotation marks omitted).
We have considered the following factors when distinguishing between attempts
to convince and attempts to coerce: (1) word choice and tone, id.; (2) the
existence of regulatory authority, Okwedy, 333 F.3d at 343; (3) whether the speech
was perceived as a threat, Rattner v. Netburn, 930 F.2d 204, 210 (2d Cir. 1991); and,
perhaps most importantly, (4) whether the speech refers to adverse
consequences, Hammerhead, 707 F.2d at 39. No one factor is dispositive. Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). "[U]nder certain circumstances, oral
or written statements made by public officials will require courts to draw fine
lines between permissible expressions of personal opinion and implied threats to
employ coercive state power to stifle protected speech." Hammerhead, 707 F.2d at
39.
As for qualified immunity from these claims, the question whether
an official's actions violated clearly established law must be viewed in the light of
the specific context of the case, not as a broad general proposition. Zieper, 474
F.3d at 67. Indeed, "the fact that the general proposition that the First
27 Amendment prohibits 'implied threats to employ coercive state power to stifle
protected speech' is well-established does not end our inquiry." Id. (quoting
Hammerhead, 707 F.2d at 39). Rather, the "contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). While
the exact official action need not have been previously held unlawful, its
unlawfulness must be apparent in light of pre-existing case law. Id.
B. Application
First, we consider whether the NRA sufficiently pleaded a First
Amendment violation. Second, we consider whether, assuming it did, the law
was clearly established such that the violation would have been apparent to a
reasonable official at the time.
1. Did the NRA Sufficiently Plead a First Amendment Claim?
In asserting a violation of its First Amendment rights, the NRA relies
principally on Vullo's actions with respect to and statements in the Guidance
Letters, Press Release, Consent Decrees, and Lloyd's meetings. We discuss first
the Guidance Letters and Press Release and second the Consent Decrees and
Lloyd's meetings.
28 a. The Guidance Letters and Press Release
The Complaint alleges that Vullo's statements in the Guidance
Letters constituted "threats . . . of adverse action if institutions failed to support
Defendants' efforts to stifle the NRA's speech and to retaliate against the NRA
based on its viewpoint." J. App'x at 154 ¶ 48. It alleges that the Press Release
"threatened" regulated entities with "costly investigations, increased regulatory
scrutiny and penalties" if they did not "discontinue[] . . . their arrangements with
the NRA." Id. at 144 ¶ 21 & n.16. And it alleges that the Guidance Letters and
actions of Vullo (and Cuomo) were intended to and did "coerce insurance
agencies, insurers, and banks into terminating business relationships with the
NRA." Id. at 155 ¶ 52.
We conclude that these allegations fail to plausibly allege
entitlement to relief. First, whether Vullo "threatened" or "coerced" entities in an
unconstitutional sense are conclusions and characterizations that must be
supported by factual allegations as to what she said and did. Whiteside, 995 F.3d
at 321 ("[A] court should not accept as true allegations that amount to mere legal
conclusions." (internal quotation marks omitted)). Second, when the Complaint's
factual allegations are separated from its conclusions and characterizations, see
29 Iqbal, 556 U.S. at 679, it is apparent that the Complaint fails to plausibly allege
that Vullo engaged in unconstitutional threatening or coercive conduct. See id. at
678 ("Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.").
Vullo's words in the Guidance Letters and Press Release speak for
themselves, and they cannot reasonably be construed as being unconstitutionally
threatening or coercive. For example, in the Guidance Letters, Vullo referred to
the "devastation caused by gun violence" as "tragic" and "regrettabl[e]," and
called it "a public safety and health issue that should no longer be tolerated by
the public." J. App'x at 183. She urged DFS-regulated entities "to continue
evaluating and managing their risks, including reputational risks, that may arise
from their dealings with the NRA or similar gun promotion organizations, if any,
as well as continued assessment of compliance with their own codes of social
responsibility." Id. at 184. And in the Press Release, she stated:
Corporations are demonstrating that business can lead the way and bring about the kind of positive social change needed to minimize the chance that we will witness more of these senseless tragedies. DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA, and to take prompt actions to manage these risks and promote public health and safety.
30 Id. at 181.
We conclude, as a matter of law, that these statements do not cross
the line between an attempt to convince and an attempt to coerce. See Zieper, 474
F.3d at 66; see also Bantam Books, 372 U.S. at 67. Rather, Vullo's statements in the
Guidance Letters and Press Release are clear examples of permissible
government speech. See, e.g., Walker, 576 U.S. at 208; Wandering Dago, Inc., 879
F.3d at 34. She plainly favored gun control over gun promotion and she sought
to convince DFS-regulated entities to sever business relationships with gun
promotion groups. Although she did have regulatory authority over the target
audience, and even assuming some may have perceived the remarks as
threatening, the Guidance Letters and Press Release were written in an even-
handed, nonthreatening tone and employed words intended to persuade rather
than intimidate. They did not refer to any pending investigations or possible
regulatory action; the only "adverse consequences" alluded to were the "risks,
including reputational risks . . . if any," of continuing to do business with gun
promotion groups amid growing public concern over gun violence and the
"social backlash" against "organizations that promote guns that lead to senseless
violence." J. App'x at 183-84, 186-87 (emphasis added). And those consequences
31 were mentioned only in the context of "encourag[ing]" businesses to evaluate
risk. Id. at 184, 187. The statements did not "intimat[e] that some form of
punishment or adverse regulatory action [would] follow the failure to accede to
the [] request" to discontinue arrangements with the NRA and other gun
promotion organizations. Hammerhead, 707 F.2d at 39.
The NRA argues on appeal that "[t]he Guidance Letters are suffused
with political concerns far afield from DFS's mandate, urging banks and insurers
to heed 'the voices of the passionate, courageous, and articulate young people'
speaking out in favor of gun control." Appellee's Br. at 11 (quoting the Guidance
Letters). In our view, however, it was reasonable for Vullo to speak out about
the gun control controversy and its possible impact on DFS-regulated entities.
The general backlash against gun promotion groups and businesses that
associated with them was intense after the Parkland shooting. It continues
today.13 Such a backlash could (and likely does) directly affect the New York
financial markets; as research shows, a business's response to social issues can
directly affect its financial stability in this age of enhanced corporate social
13 See Michael Martin, Former Gun Industry Exec Speaks Out Against NRA's Role in Mass Shootings, NPR (May 28, 2022, 5:19 PM), https://www.npr.org/2022/05/28/ 1101955074/former-gun-industry-exec-speaks-out-against-nras-role-in-mass-shootings. 32 responsibility.14 As Superintendent of DFS, Vullo was charged with overseeing
insurance entities, banks, and other financial institutions in New York, and she
surely had the right to raise these concerns to protect DFS-regulated entities and
New York residents from financial harm and to preserve stability in the state's
financial system.
We conclude, with respect to the Guidance Letters and Press
Release, that the Complaint falls short of plausibly alleging unconstitutional
threats or coercion.
b. The Consent Decrees and Lloyd's Meetings
Vullo's statements at the Lloyd's meetings present a closer call. The
Complaint alleges that during the meetings Vullo "discussed an array of
technical regulatory infractions plaguing the affinity-insurance marketplace" but
"made it clear, however, that DFS was less interested in pursuing the infractions
14 See Lily Zheng, We're Entering the Age of Corporate Social Justice, Harv. Bus. Rev. (June 15, 2020), https://hbr.org/2020/06/were-entering-the-age-of-corporate-social-justice (explaining that research has shown that companies that have effective corporate social responsibility programs are more profitable than those that do not). Indeed, according to a study published in 2017 -- less than one year before the Parkland shooting -- seven out of ten Americans believed companies had an obligation to take action to address key social and environmental issues, even if those issues were not relevant to everyday business operations. See Americans Willing to Buy or Boycott Companies Based on Corporate Values, According to New Research by Cone Communications, Cone (May 17, 2017), https://conecomm.com/2017-5-15-americans-willing-to-buy-or-boycott-companies- based-on-corporate-values-according-to-new-research-by-cone-communications/. 33 of which she spoke, so long as Lloyd's ceased providing insurance to gun groups,
especially the NRA." J. App'x at 144. But even putting aside the lack of precision
as to what Vullo actually said to make her message "clear," reviewing the
statements in context, as we must, see Iqbal, 556 U.S. at 663-64, the allegations do
not plausibly amount to an unconstitutional threat or coercion to chill the NRA's
free speech.
The "context" here was an investigation, commenced months before
the meetings, that was triggered by a referral from the DA's Office. DFS had
begun an investigation into Carry Guard and related programs in October 2017.
The investigation revealed that Lockton, Chubb, and Lloyd's were selling illegal
insurance policies -- programs created and endorsed by the NRA. The policies
insured New York residents for litigation defense costs resulting from
intentional, reckless, and criminally negligent acts with a firearm that resulted in
another person's injury or death. This coverage violated New York law and
public policy and resulted in three substantial Consent Decrees, whereby the
companies agreed to pay a total of more than $13 million in fines and to
discontinue the programs. Again, the Consent Decrees speak for themselves --
they explained the violations of law and, contrary to the NRA's assertions, did
34 not require the companies to sever ties with the NRA. Rather, they explicitly
permitted the companies to continue to do business with the NRA, assuming of
course the programs did not violate New York law.
The NRA nonetheless argues that the investigation renders Vullo's
other statements threatening. In other words, it argues that even though Vullo
did not explicitly threaten adverse regulatory action, the fact that she previously
began investigating entities for insurance law violations should render her
nonthreatening government speech threatening. We are not persuaded. To the
contrary, the investigation explains the reasonableness of Vullo's actions.
To the extent Vullo offered Lloyd's leniency in the course of
negotiating a resolution of the apparent insurance law violations, context shows
that she was merely carrying out her regulatory responsibilities. Even with all
reasonable inferences drawn in the NRA's favor, it is apparent Vullo did not
coerce Lloyd's (or the other entities in question) into severing ties with the NRA;
indeed, the consent decrees explicitly provided otherwise. Moreover, the Lloyd's
Consent Decree was no more severe than that of Chubb or Lockton; in fact,
Lloyd's was subject to $2 million less in fines than Lockton. And the Complaint
alleges no facts to support the conclusion that Chubb or Lockton were coerced
35 into settling with DFS. Rather, the well-pleaded facts in the Complaint
demonstrate that the entities -- sophisticated companies represented by
experienced counsel -- admitted wrongdoing based on their actual insurance law
violations and that Vullo was motivated by her duty to address those violations.
Twombly provides guidance here. There, the Supreme Court held
that allegations of parallel business conduct and a bare assertion of conspiracy
were insufficient to state an antitrust conspiracy claim. 550 U.S. at 557-66. The
Court reasoned that the defendants' behaviors could be explained by lawful
economic incentives and concluded that there was "no reason to infer that the
companies had agreed among themselves to do what was only natural anyway."
Id. at 566 ("[W]e agree with the District Court that nothing in the complaint
intimates that the resistance to the upstarts was anything more than the natural,
unilateral reaction of each [defendant-company] intent on keeping its regional
dominance.").
Here, in light of the serious insurance law violations, it was only
natural for Vullo to take steps -- including investigating, negotiating, and
resolving apparent violations -- to enforce the law. Her actions were plainly
reasonable. The well-pleaded allegations of the Complaint show that she was
36 simply executing her duties as DFS Superintendent and engaging in legitimate
enforcement action. All in all, the Complaint fails to plausibly allege that Vullo
unconstitutionally threatened or coerced Lloyd's or the other entities to stifle the
NRA's speech.
2. Was the Law Clearly Established?
Finally, even assuming the NRA sufficiently pleaded that Vullo
engaged in unconstitutionally threatening or coercive conduct, we conclude that
Vullo is nonetheless entitled to qualified immunity because the law was not
clearly established and any First Amendment violation would not have been
apparent to a reasonable official at the time.
While it was clearly established, as a general matter, that "the First
Amendment prohibits implied threats to employ coercive state power to stifle
protected speech," Zieper, 474 F.3d at 67 (cleaned up), the contours of that right
were not so "sufficiently clear" that a reasonable official in the circumstances here
would have understood that what she was doing violated that right. Anderson,
483 U.S. at 640. The right alleged to have been violated "must have been 'clearly
established' in a more particularized, and hence more relevant, sense." Id. The
violation must have been apparent in light of pre-existing case law for qualified
37 immunity to be denied. Id. Here, the various cases addressing the issue did not
provide clear and particularized guidance but involved very different
circumstances and much stronger conduct. The cases do not clearly establish
that Vullo's statements in this case were unconstitutionally threatening or
coercive. 15
15 See, e.g., Bantam, 372 U.S. at 62 n.5, 63, 66-67 (finding unconstitutional coercion where the Rhode Island Commission to Encourage Morality sent letters to book distributors citing its legislative mandate, advising that lists of "objectionable" books were being sent to Chief of Police, and warning that the Attorney General "will act" in case of noncompliance); Okwedy, 333 F.3d at 344 (holding that a minister who posted a controversial message on a billboard stated a First Amendment retaliation claim where the Staten Island Borough President wrote a letter to the billboard company invoking his official authority, advising that he was aware that the company "derives substantial economic benefits" from their billboards, and instructing the company to contact his "legal counsel and Chair of [his] Anti-Bias Task Force"); X-Men Sec., 196 F.3d at 68 (holding that legislators were protected by qualified immunity from First Amendment claims where the legislators asked government agencies to investigate a private security company, questioned the company's eligibility for an award of a publicly-funded contract, and advocated that it not be retained to provide services to a publicly financed housing complex); Rattner, 930 F.2d at 205 (holding that a businessman who wrote a controversial article about a village administrator stated a First Amendment claim against the administrator where the administrator wrote a letter to the businessman's colleagues asking a series of targeted questions about the article, publicly announced that he had written the letter, and publicly warned that he made a list of local businesses at which he regularly shopped); Hammerhead, 707 F.2d at 38-39 (holding that First Amendment rights of the creators of a satirical board game were not violated where a city human resources administrator urged stores to refrain from selling the game, appealed to conscience and decency rather than punishment or adverse action, and the request "was nothing more than a well-reasoned and sincere entreaty in support of [the administrator's] own political perspective"). 38 The NRA has not cited, and we are not aware of, any case analogous
to this one, where a government official has been held to have violated the First
Amendment by making statements like those in the Guidance Letters and Press
Release, which use only suggestive language and rely on the power of
persuasion. In the Guidance Letters, Vullo commends DFS-regulated entities for
their commitment to corporate social responsibility and for being "key players in
maintaining and improving public health and safety in the communities they
serve." J. App'x at 183. In the Press Release, she praises businesses for "lead[ing]
the way and bring[ing] about the kind of positive social change needed to
minimize the chance that we will witness more of these senseless tragedies." Id.
at 181. Moreover, the Press Release states that the Governor was "directing the
Department of Financial Services to urge insurers and bankers" to assess the risks
of doing business with gun promotion groups, id. at 180 (emphasis added), not to
investigate or take any enforcement action against them. It certainly was not
clearly established at the time that any of these statements would violate the First
Amendment, and indeed, as discussed above, many cases emphasized the right
of government officials to speak, to take and express views, and to try to
persuade. Furthermore, as the district court acknowledged, we have never held
39 that nonthreatening government speech becomes threatening simply because the
speaker oversaw an earlier, legitimate law enforcement investigation, and we
decline to do so today.
As for the Consent Decrees and Lloyd's meetings, the NRA similarly
has not cited, and we are not aware of, any case like this one, where a
government official makes purportedly threatening statements urging an entity
to cut ties with what is essentially its accomplice during an ongoing, legitimate
investigation into serious misconduct, where the investigation results in consent
decrees, and where the entities admit to violations of the law and agree to
millions of dollars in fines and other significant relief. Moreover, assuming Vullo
offered to go easy on Lloyd's if it severed ties with the NRA, we have never held
that law enforcement officials may not offer leniency in exchange for help
advancing their policy goals, especially when those policy goals aim to minimize
the influence of a noncompliant business partner that has repeatedly violated the
law. And again, as noted, DFS explicitly permitted Lloyd's (and the other
entities) to continue doing business with the NRA.
Qualified immunity balances the need to hold public officials
accountable when they exercise their power irresponsibly with the need to shield
40 officials from harassment, distraction, and liability when they perform their
duties responsibly. Pearson, 555 U.S. at 231. The Complaint's factual allegations
show that, far from acting irresponsibly, Vullo was doing her job in good faith.
She oversaw an investigation into serious violations of New York insurance law
and obtained substantial relief for the residents of New York. She used her office
to address policy issues of concern to the public. Even assuming her actions
were unlawful, and we do not believe they were, the unlawfulness was not
apparent by any means.
Accordingly, even assuming the NRA plausibly alleged a First
Amendment violation, Vullo would be protected by qualified immunity in any
event.16
16 The Complaint also cites the New York state constitution, but it combines the state law claims with the federal claims and does not assert them as independent claims. Moreover, in their briefs on appeal and to the district court, the parties do not address the state law claims at all and do not cite New York law. Accordingly, we deem the NRA's state law claims abandoned. See Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999) (per curiam). Moreover, even assuming the claims are not abandoned, we conclude that Vullo would be entitled to qualified immunity under New York law because, as discussed above, her actions were reasonable and there is nothing in the Complaint from which one could reasonably infer bad faith. 41 CONCLUSION
For the reasons stated above, we REVERSE the district court's denial
of Vullo's motion to dismiss and REMAND the case with directions for the
district court to enter judgment for Vullo.
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