Dark Storm Indus. LLC v. Cuomo

• Decision Date: 08 July 2020
• Docket Number: 1:20-CV-0360 (LEK/ATB)
• Parties: DARK STORM INDUSTRIES LLC, et al., Plaintiffs, v. Andrew CUOMO, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

471 F.Supp.3d 482

DARK STORM INDUSTRIES LLC, et al., Plaintiffs,

v.Andrew CUOMO, et al., Defendants.

1:20-CV-0360 (LEK/ATB)

United States District Court, N.D. New York.

Signed July 8, 2020

James M. Maloney, Office of James M. Maloney, Port Washington, NY, for Plaintiffs.

Andrew W. Koster, New York State Attorney General, Albany, NY, for Defendants.

MEMORANDUM-DECISION AND ORDER

Lawrence E. Kahn, Senior U.S. District Judge

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 ¶¶ 7, 14. The purpose of these executive orders was to slow the spread of COVID-19 within the State by compelling New Yorkers to stay home and preventing person-to-person contact, because, "in a short period of time, confirmed cases of—as well as deaths caused by—COVID-19 within the State [had] increased exponentially." Defs.’ SMF ¶¶ 8, 14. To illustrate, "on March 15, 2020, there were approximately 600 confirmed cases throughout the entire State, and the State had just reported its first two deaths." Id. ¶ 9. By May 29, 2020, however, "confirmed cases in the State had increased to 368,284 and the number of ... deaths had increased to 23,780." Id. ¶ 10.

Of all the orders issued by Governor Cuomo in response to the pandemic, most germane to the instant case are Executive Orders 202.6 and 202.8 (together, the "Executive Orders"). In Executive Order 202.6, issued on March 18, 2020, Governor Cuomo designated ESD as the entity responsible for determining which businesses in New York were "essential." Pls.’ SMF ¶ 2; Dkt. No. 16-3 ("Executive Order 202.6"). These determinations were to be made in "the best interest of the state." Executive Order 202.6. Relatedly, Executive Order 202.8, issued on March 20, 2020, required non-essential businesses to reduce their workforce by 100%. Pls.’ SMF ¶ 3; Dkt. No. 16-4 ("Executive Order 202.8"). Executive Order 202.8 provides that violations of the workplace restrictions will be enforced by Public Health Law § 12, which provides for a penalty up to $2,000 and enforcement by injunctive actions brought by the New York Attorney General. Fine Decl. ¶ 14.

Following the issuance of Executive Order 202.6, ESD published guidance further defining "essential" businesses. Defs.’ SMF ¶ 15. Under this guidance, "hundreds of categories of businesses" in New York—including gun shops—could not open for business. Id. ¶ 32. Examples of businesses that ESD deemed "essential" and that could open were car dealerships and realtors. Pls.’ SMF ¶ 11. This was because these businesses provided "goods or services that are essential to human life such as food, beverage, shelter, healthcare, or transportation." Fine Decl. ¶ 34. Where a business was not specifically listed as essential, it could request clarification from ESD. Defs.’ SMF ¶ 16.

4. Dark Storm's Closure

On March 21, 2020, after the Executive Orders were promulgated, Dark Storm's managing member, Edward Newman, Newman Decl. ¶ 2, contacted ESD to inquire whether Dark Storm's firearms business was "essential" under Executive Order 202.6. Defs.’ SMF ¶ 17; Pls.’ SMF ¶ 5. In response, an ESD employee sent Newman an email stating the following:

[Y]our business has been designated as essential solely with respect to work directly related to police and/or national defense matters [that] are exempt from current restriction. Only those employees can be present at the business location in support of essential business activities. No other employees/personnel shall be permitted to work from your business's location. Any other business activities being completed at your location that are not essential are still subject to the revised Executive Order 202.6.

Pls.’ SMF ¶ 5; Defs.’ SMF ¶ 18. On March 21, 2020, Newman replied by email, asking, "So to be clear we may continue to conduct business with law enforcement and military but not civilians?" Newman Decl. ¶ 6; Defs.’ SMF ¶ 19. On March 22, 2020, an ESD employee responded again via email, writing, "Yes that is correct as advised by counsel." Newman Decl. ¶ 7; Defs.’ SMF ¶ 20.

In response to these communications, Dark Storm closed its retail business and ceased selling guns and ammunition to the general public. Pls.’ SMF ¶ 8; Morrisey Decl. ¶ 4. As a result of this closure, Dark Storm was unable to fulfill an order for a gun placed by Schmucker. Morrisey Decl. ¶ 5. Dark Storm did, however, continue manufacturing products for shipment to distributors and for sale to law enforcement and military customers. Id. ¶ 6.

Notably, other retailers that sold firearms, such as Walmart and Runnings, were classified as essential and remained open for business with the general public across New York State. Defs.’ SMF ¶¶ 35–56.

5. New York's Reopening

In May 2020, having successfully slowed the spread of the virus, New York began "reopening" pursuant to a four-phase plan. Defs.’ SMF ¶ 21; Fine Decl. ¶ 40. In order to progress through the ongoing re-opening process, each region of the state must meet several health-related benchmarks. Defs.’ SMF ¶ 21. Although the reopening plan doesn't say so explicitly, it appears to contemplate possible renewed shutdowns in the future, if regions...