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Posted on May 19 2019

Negative Ghost-rider... the pattern is...

 

Apologies I realized that I never hit the publish button and unfortunately this entry laid dormant for most of the week. Bad Spicy Bad... 

 

If you are a NRA supporter, that’s cool My beef isn’t with you, it’s with the NRA...In general I’m not a fan of a “not-for-profit” organization that has dozens of EINs...that’s why the NRA’s use of “sub-organizations” should be closely scrutinized. The NRA’s finances are totally screw but more on that at the bottom of this entry. I found a lot of receipts...

 

  

 

I mean really...I get that the NRA finances are completely “oh God, I’m F...ed” but this is absurd 

 

 

 

NRA v NY Gov & DFS 

Consent Decree & NRA lawsuit...

 

As you might know, especially if you’ve followed me on twitter or this blog then you would have known last Spring the State of New York hammered two of the world’s largest insurance companies because the NRA was not licensed to offer insurance to its New York Members.

By way of background you might recall in a May of 2018 this entry where I discussed New York v Chubb & Lockton re NRA Carry Guard insurance which detailed the millions in fines and subsequently lead to Chubbs & Lockton dropping the NRA Carry Guard. Also the pesky little (totally) unlawful NRA insurance kick-back. Sneakily little bastards.

Then in August of 2018 this write up.  Where the NRA sues NY Gov & DFS. And Spicy laughed and laughed because how dare the State of New York enforce insurance regulations. I mean how double dog dare you, New York State (NYS) Governor and NYS DFS try to protect NYS residents from the absolute & unlawful NRA Carry Guard Insurance absent the NYS required licensing...and how triple dog dare you NYS for holding the NRA accountable for (presumably) unlawful, insurance kick-backs from Chubbs & Lockton.

 

Lordy, I hope you read that with the intended sarcasm -wink- Concerning Case 1:18-cv-00566-TJM-CFH

 

 

Which was a follow up entry to this April 2018 write up where I walked you through the October 2017, the New York Department of Financial Services (NY-DFS) announced it would investigate the NRA's 'Carry Guard' insurance program.

 

At the heart of the NY-DFS investigation was the “payments/Commissions” improperly paid to the NRA. Given the NRA did not have the proper licensing, as required by New York Law. On May 2, 2018 the NY-DFS issued a press release, detailing their investigation and subsequent Consent Decree.

 

As asserted in the April 2018 blog entry, I was pretty resolute when I asserted that the NRA’s lawsuit and argument was deeply flawed and unpersuasive. Given the known high bar the NRA would have to achieve when laying down the “selective prosecution card”... my position remains the same:

 

 

 

Understand Immunity & various cases

 

One thing you may not know is “public” and “elected” officials have the benefit of various immunity. In non-legalese this means if you make a decision in your “official” capacity as a public servant, sometimes your actions are shielded by way of “Sovereign Immunity” (in Federal Causes of Action) or Qualified Immunity, as defined below:

 

Sovereign immunity is treated in two places in the US Constitution. Article III, Section 2 is applicable to questions involving the immunity of Federal officials from lawsuits, suits against the Federal government by a state and vice versa, and suits against the Federal government generally.

The division of power between various possible sovereigns -- the state and Federal governments -- is dealt with by the Eleventh Amendment, which discusses suits between states, between states and the Federal government, and so-called diversity cases between citizens in different states.

Absolute Immunity - immunizes officials from suit for all official acts without regard to motive.

Qualified Immunity - shields government officials from constitutional claims for money damages so long as the officials did not violate clearly established law. The Supreme Court has described the doctrine as incredibly strong—protecting “all but the plainly incompetent or those who knowingly violate the law.”

 

in retrospect (candidly I stopped following this lawsuit a few months ago because at the onset I was vociferous in my assessment that the NRA lawsuit was frivolous) and a weee bit of due diligence (like checking the docket) my assessment is it is this April 2018 NYS DFS memo that the NRA has locked on as the “target” and has been the (in my opinion) flawed cornerstone of their lawsuit and subsequent arguments...it’s most likely the following paragraph, which reads in part:

Department encourages its chartered and licensed financial institutions 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.

The Department 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.

 

Again you may want to re-read the two Consent Orders, which are embedded in the first paragraph of this entry but for convenience I’ve re-embedded each NYS DFS Press Release below.

 

MAY 2 2018 NY DFS  Release, which reads in part:

DFS FINES LOCKTON COMPANIES $7 MILLION FOR UNDERWRITING NRA-BRANDED “CARRY GUARD” INSURANCE PROGRAM IN VIOLATION OF NEW YORK INSURANCE LAW

 

DFS Investigation Found that NRA “Carry Guard” Insurance Program Unlawfully Provided Liability Insurance to Gun Owners Who May Be Charged with a Crime Involving Firearms

Lockton Provided Administrative Services for the NRA, Which Does Not Have a License to Conduct Insurance Business in New York

Insurer Will No Longer Participate in NRA “Carry Guard” or Any Similar Program in New York (emphasis added)

 

MAY 8, 2018 NY DFS Release, which reads in part:

 

DFS FINES CHUBB SUBSIDIARY ILLINOIS UNION INSURANCE COMPANY $1.3 MILLION FOR UNDERWRITING NRA-BRANDED “CARRY GUARD” INSURANCE PROGRAM IN VIOLATION OF NEW YORK INSURANCE LAW

 

DFS Investigation Found that NRA Carry Guard Insurance Program Unlawfully Provided Liability Insurance to Gun Owners Who May Be Charged with a Crime Involving Legally Possessed Firearms

Illinois Union Provided Underwriting for the NRA, Which Does Not Have a License to Conduct Insurance Business in New York

Insurer Will No Longer Participate in “Carry Guard” or Any Similar Program in New York

 

 

I hope you now understand the context and content of why Spicy laughed and laughed when I saw the August 2018 lawsuit the NRA initiated. Which now brings us to the May 10, 2019 DECISION and ORDER 

  

And now that you have a deeper understanding of what types of immunity public officials have.

 

I suppose a much simpler analogy is warranted:

1) you drive out of State, because your State does not allow for professional grade fireworks, so you decide to buy an entire F250 truck load of totally illegal fireworks.

 

1a) you then decide (absent any legitimate pyrotechnic training) to put on a “professional grade” firework show for you and a few of your neighbors. Don’t worry the guy who sold you those fireworks also sold you insurance but then gave you a “finders fee” colloquially known as a “kick-back”.

2) upon delighting your neighbors with your new found “pyrotechnic” expertise you accidentally set your next door neighbor’s house on fire.

2a) you and your neighbors frantically call 911. The fire department is dispatched to your neighbor’s house. Luckily they came hauled ass and quickly moved to knock down the fire (you “accidentally” set off). No one was actually injured and your neighbor’s house wasn’t burned to the ground. Praise sweet Baby Jesus.

3) After the fire is successfully distinguished and hot spots dealt with. The Fire Marshall then launches an Investigation. Upon which they determine, you were at fault. Because (see items 1-2 ) you illegally brought fireworks in from another state, you never obtained the statutorily required certifications and the “insurance” was a scam, especially the “kick back”

4) but goddamnit this is ‘Murcia and you’re going to sue the Fire Department because how dare they infringe on your right to (illegally) buy & light professional grade fireworks. How dare they...

 

In short 👆🏻 in the above analogy 👆🏻the ass-hat that bought the fireworks, set their neighbor’s house on fire and then sued the Fire Department is the NRA. Defendant immunity argument  and Plaintiff counter argument (the majority of which I found unpersuasive) summary, which reads in part:

 

..now seeking money damages for past acts remain to be litigated. See Dkt. No. 56. Defendants now move pursuant to Fed. R. Civ. P. 12(c) to dismiss any 42 U.S.C. § 1983 (“Section 1983") claims against DFS because DFS is not a “person” subject to liability under Section 1983; to dismiss all money damage claims against DFS, and against Gov. Cuomo and Supt. Vullo in their official capacities, as barred by the Eleventh Amendment; to dismiss Count 4 for failing to state a legally cognizable selective enforcement claim; to dismiss any remaining selective enforcement claims against Gov. Cuomo for lack of personal involvement; to dismiss any remaining selective enforcement claims against Supt. Vullo on the grounds that she is shielded from liability by the doctrine of absolute immunity; and to grant Gov. Cuomo and Supt. Vullo qualified immunity on any remaining selective enforcement claims. Dkt. No. 63.

The NRA opposes some of Defendants’ contentions, see Dkt. No. 69, and Defendants have filed a reply. Dkt. No. 71. The Court has elected to decide the motion without oral argument. For the reasons that follow, Defendants’ motion in granted in part and denied in part.

 

As noted (via the embedded 42 U.C.S. §1983 Civil action for deprivation of right, the NRA agreed to withdraw that count. Because as noted DFS is “not s person” and that statute requires cognizable “injury” to a person not to a Government Agency (as DFS is a State of New York agency), hence why the NRA opted to withdraw.

 

 

 

On page 3, this section is actually important, when you as a Plaintiff offer zero argument to support or defend your position then the Court has no other recourse than to deem that “allegation” as abandoned = dismissed. Because the NRA offer zero argument, that’s how it goes:

 

 

 

Plaintiff offers no opposition to this portion of Defendants’ motion. These claims for money damages against these defendants are deemed abandoned and, therefore, subject to dismissal on this basis.

 

You’ll note that Judge McAvoy referenced the following case, See Thurmand v. Univ. of Connecticut, No. 3:18-CV-1140 (JCH), 2019 WL 369279,.. the exact quote and reference which loops back to multiple previous matters of “abandonment of claims” can be found on Page 5, Section B Abandoned Claims

 

 

 With respect to the “monetary claims”, from the onset I had a difficult time trying to see how the NRA would avoid the significant constitutional hurdle coupled with the immunity “shield” and/or compete immunity. Why: again I’ll reference you back to the Fire Department analogy.

 

In the end this wasn’t a total and complete annihilation of the NRA’s Complaint, although personally speaking it should be. Given the numerous occasions ( I think two or three in past filings on this docket) the NRA offered zero or minimal argument...the Judge ruled that the “selective prosecution” is “in” and after reading the filings, I can actually see a semi-strong argument that the NRA laid down in their Amended Complaint:


The Amended Complaint details several affinity groups operating in New York whose insurance programs allegedly resemble those of the NRA, in some instances containing language identical to the allegedly-violative language associated with the NRA programs, that were not targeted by the DFS.

 

Pages 7 & 8 the Defendants Argus that there is nothing in her aforementioned Chubb & Lockton insurance “consent decree” that shows the Governor or the NY DFS had a pregame “aha let’s bankrupt the shit out of the NRA”

that Lockton may have provided information...Defendants also argue that the selective enforcement claims must be dismissed because the Amended Complaint lacks plausible allegations that Defendants had knowledge of the purported Insurance Law violations by the comparators. The Court agrees.

 

Because the selective enforcement claims have been dismissed, the Court declines to address whether the Amended Complaint adequately alleges Gov. Cuomo’s personal involvement in this claim; whether Supt. Vullo is entitled to absolute immunity on this claim; and whether Gov. Cuomo and Supt. Vullo are entitled to qualified immunity on this claim. Accordingly, Defendants’ motion in these respects is denied with leave to renew if viable

 

On the balance weighing substance and style the NRA v NYS is bullshit, kind of like NRA’s hiding the diamond encrusted sausage...because this lawsuit was/is joke and frankly an exercise in futility. As well as a total waste of time.

 

Defendants’ motion to dismiss all Section 1983 claims against DFS is granted, and all Section 1983 claims against DFS are DISMISSED as withdrawn; and

Defendants’ motion to dismiss all money damage claims against DFS, and against Gov. Cuomo and Supt. Vullo in their official capacities, is granted, and all money damage claims against DFS, and against Gov. Cuomo and Supt. Vullo in their official capacities, are DISMISSED; and

Defendants’ motions to dismiss Gov. Cuomo and Supt. Vullo from any remaining selective enforcement claims are denied with leave to renew if viable selective enforcement claims are re-pled.

 

Dana does SuperBeet taste better than borscht

 

 

 

 

SuperBeet Dana is tolerable

 

NRA Dana needs to hop on her broom

 

 

 

As promised the NRA Finances...

 

Because upon closer inspection of the NRA Inc and NRA Foundation’s respective IRS 990s I certainly have a lot of questions.

for example on  Page 8, Part 8, section B Independent Contractors of the NRA Inc Form-990. See the $11,605,255.00 payout from NRA Inc to Membership Marketing Partners, LLC? And because I’m a fan of showing one’s homework/research I’ve taken the liberty of running a few searches in the IRS Tax Exempt database:

NRA Inc EIN: 53-0116130 their 2017 IRS 990 (straight from the IRS website) 

NRA Foundation EIN: 52-1710886 their 2017 IRS 990 (some 449 pages long and yes also directly from the IRS database)

According to the Virginia State Corporation Commission database, this company is a foreign registered company (do not conflate this, in Virginia a “foreign registered” company simply means its Articles of Incorporation did not originate in the State of Virginia, the organization was “incorporated” in another State)...

...that incorporated in the State of Delaware on (based on the VA SCC database) September 15, 2011 (see black arrow in the screen shot), which means now you need to toggle to the State of Delaware Division of Corporations... which will yield you this return:

via GIPHY

 

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2 comments

  • NANCY: May 20, 2019

    ANOTHER PYROTECHNIC GEM DROPPED BY SPICY. WHEN THE IRS AUDITS YOUR REAL ESTATE TAX PAYMENT AMOUNT (LISTED ON A FORM 1098 FROM THE BANK), ONE WONDERS HOW THIS SH*T FLIES BY WITHOUT A GLANCE. I WONDER IF BIG NUMBERS ARE INTIMIDATING. OR IF SOMEONE IS JUST BOUGHT OFF.

  • @planet_phoebe: May 20, 2019

    Good work Spicy. I don’t have an iota of the legal expertise you have, but I’ve had my eye on Qualified Immunity for years. Mostly in the context that it is/can be used to let reckless cop behavior get dismissed. I sort of missed that it can apply to any member of the gubbo whatsoever.

    I’m lernding

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