Spencer v. Bruen

ETATES DISTRICF

UNITED STATES DISTRICT COURT EE FILED SOO

WESTERN DISTRICT OF NEW YORK Sy ‘a

DEC 29 2022

Ary 7

MICHAEL SPENCER and Cr OE

HIS TABERNACLE FAMILY

CHURCH, INC.,

Plaintiffs, 22-CV-6486 (JLS)

v.

STEVEN A. NIGRELLI,

WEEDEN A. WETMORE, and

MATTHEW VAN HOUTEN,

Defendants.

DECISION AND ORDER

(PRELIMINARY INJUNCTION)

As recounted in Hardaway v. Nigrelli, No. 22-CV-771, 2022 WL 16646220

(W.D.N.Y. Nov. 3, 2022), eight days after the Supreme Court struck down New

York’s unconstitutional “proper cause” requirement for conceal-carry licenses, the

State responded with even more restrictive legislation, barring all conceal-carry

license holders from vast swaths of the State. As in Hardaway, the complaint and

motion in this case focus solely on one aspect of the new legislation, namely, the

portion making it a felony for such a license holder to possess a firearm at “any

place of worship or religious observation.”

Plaintiffs argue that this exclusion is a “direct assault on First Amendment

rights”—in addition to running afoul of the Second Amendment as this Court

recognized in Hardaway. Dkt. 13-8, at 1. They posit that “New York now puts its

citizens to an impossible choice: Forfeit your First Amendment right to gather for

religious worship or forfeit your Second Amendment right to armed self-defense.”

Id.

Ample Supreme Court precedent addressing the individual’s freedoms under

the First and Second Amendments to the Constitution dictate that New York’s new

place of worship exclusion is unconstitutional. As in Hardaway, the State fails the

Second Amendment test set forth in Bruen. And it fares no better with respect to

Plaintiffs’ claims under the Free Exercise and Establishment Clauses of the First

Amendment. Thus, and for the further reasons set forth below, Plaintiffs’ motion

for a preliminary injunction enjoining Defendants’ enforcement of this place of

worship exclusion is granted.

BACKGROUND

Pastor Michael Spencer filed this lawsuit on November 38, 2022, joined by His

Tabernacle Family Church, Inc. (the “Church”). Dkt. 1. Plaintiffs sue three

Defendants in their official capacities, namely, the superintendent of the New York

State Police and the District Attorneys of Chemung County and Tompkins County.

See id.

Pastor Spencer, who is licensed under New York law to carry a concealed

firearm, “believes that, as the Church’s pastor, he has a moral and a religious duty

to take reasonable measures to protect the safety of his congregation.” Id. at {{ 41-

42. Consistent with his “view of the Christian scriptures and what they say about a

pastor’s role,” he “regularly carried a concealed firearm on the Church’s New York

campuses” before the houses of worship exclusion went into effect. Id. 43. In

addition, to “ensure the ability to protect the Church and its worshippers in case of

violent confrontation, Pastor Spencer allowed churchgoers to carry concealed

firearms at both of the Church’s New York campuses before” the exclusion was

enacted. Id. 45.

Plaintiffs allege that the place of worship exclusion “is a compendium of

constitutional infirmities” that infringes on Pastor Spencer’s and the Church’s

“rights to freely engage in religious exercise, to exercise autonomy over the Church’s

internal affairs, and to carry firearms to ensure the safety of all persons on the

Church’s premises.” Jd. { 55. Plaintiffs seek declaratory judgment, monetary

damages, and injunctive relief. Jd. at 24-25.1

The relevant portion of the new statute adds to the Penal Law, as relevant

here:

§ 265.01-e Criminal possession of a firearm, rifle or shotgun in a

sensitive location. 1. A person is guilty of criminal possession of a

firearm, rifle or shotgun in a sensitive location when such person

possesses a firearm, rifle or shotgun in or upon a sensitive location, and

such person knows or reasonably should know such location is a

sensitive location. 2. For the purposes of this section, a sensitive location

shall mean: ... (c) any place of worship or religious observation ... .2

1 Unless noted otherwise, page references refer to the number that appears in the

footer of each page of the document.

2 Section § 265.01-e(3) provides that the restrictions set forth in § 265.01-e(1)-(2) do

not apply to, among others, “law enforcement who qualify to carry under the federal

law enforcement officers safety act,” persons who are “police officers” as defined in

the criminal procedure law, persons who are “designated peace officers,” as well as

“security guards” and “active-duty military personnel.” See § 265.01-e(3).

Plaintiffs moved for a preliminary injunction seeking to enjoin Defendants

from enforcing the houses of worship exclusion. See Dkt. 18. Plaintiffs’ motion

included a Declaration from Pastor Spencer (Dkt. 13-1), as well as a Declaration

from Charlene Pruitt, who is a Church congregant. See Dkt. 13-2.

Spencer is “the senior pastor, president, and CEO” of the Church, which is a

“nondenominational Christian church with campuses in Horseheads and Ithaca,

New York, and another campus in Mansfield, Pennsylvania.” Dkt. 13-1, J 2.3 In

that role, Pastor Spencer has “the authority to determine which personal items

members and visitors may bring with them onto the Church’s premises.” Id. { 7.

Pastor Spencer believes that he has “a moral and religious duty to take reasonable

measures to protect the safety of those who enter the Church.” Id. { 22. He also

believes that “the Bible calls on the Church” to “love, serve, and protect each other.”

Id. § 23. These religious beliefs are “shared by the Church.” Jd. J 22, 23.

Pastor Spencer holds a “current and valid” license to carry concealed firearms

under New York law. Id. 4] 8. Prior to the enactment of the houses of worship

exclusion, Pastor Spencer “regularly carried a concealed pistol” on Church

campuses. Id. § 24. In addition, the Church has “teams of church members who

volunteer to oversee church security.” Id. § 15. Pastor Spencer also “allowed

security volunteers and other churchgoers with New York carry licenses to carry

their own concealed firearms.” Jd. Pastor Spencer “carried, and allowed others to

carry, concealed firearms at church to ensure protection of the Church and its

3 Spencer primarily pastors at Horseheads, which is the Church’s main campus.

worshippers in the case of violent confrontation.” Id.

Unfortunately, Pastor Spencer “regularly receive[s] suspicious and

threatening mail.” Id. § 34. He has “received at least two death threats” that

prompted the involvement of law enforcement. Jd. On one occasion, an individual

sent Pastor Spencer a Facebook message conveying a desire that “someone

execute[]” Pastor Spencer and his wife. Id. § 35. In addition, the Church “has

experienced several other security threats, including multiple occasions of burglary

and vandalism.” Id. { 38. Spencer desires “to carry [his] concealed pistol” and

“allow others to carry their concealed firearms on the Church’s New York campuses”

because he believes that “such concealed carry will protect” worshippers from

violence. Id. { 29. He also believes that “such concealed carry effectuates” the

Church’s “religious beliefs” that they “must protect the physical safety of the flock.”

Id.4

Since the State “enacted and began enforcing” the houses of worship

exclusion, Pastor Spencer “expected the Church’s security volunteers to comply with

the law” and he, himself, “stopped carrying” his “pistol onto the Church’s New York

campuses.” Id. { 26. But for the “enactment and enforcement” of the houses of

worship exclusion, Pastor Spencer “would carry” concealed firearms “on the

Church’s New York campuses” and “would permit other licensed churchgoers to do

the same.” Id. { 31.

4 No one has contested the sincerity of this belief. And Spencer testified credibly

throughout his testimony.

Declarant Charlene Pruitt is a member of the Church. Dkt. 13-2, | 3. She

attends services “at the Church’s main campus in Horseheads, New York.” Id.

Pruitt holds a license to carry concealed firearms that is “current and valid” under

New York law. Id. 4. Before “New York enacted and began enforcing” the houses

of worship exclusion, Pruitt “regularly carried a concealed pistol on the Church’s

Horseheads campus.” Id. { 6. Specifically, she “volunteered to help oversee

security at the church.” Jd. § 9. This included performing numerous tasks such as

“watch[ing] over the children’s wing while legally armed,” and keeping “watch for

security incidents during church services, classes and special events.” Id. § 10.

When volunteering, Pruitt “typically [has] a radio so that [she] can inform church

staff of any security issues.” Id.

Like Pastor Spencer, Pruitt believes that she has “a moral and religious duty

to take reasonable measures to protect the safety of those who enter the Church.”

Id. | 14. She also believes “that the Bible calls the Church” to “love, serve, and

protect one another.” Jd. 4 15. Her “desire to continue carrying a concealed pistol

at the Church stems from these religious beliefs” as well as her desire to provide

protection from “the kind of violence that has impacted other houses of worship

across the country.” Jd. 4 16. She believes that “someone planning to harm or kill”

her “fellow churchgoers will not be deterred by” the houses of worship exclusion,

and “may in fact be emboldened by the ban because it leaves” the “Church

defenseless against those bent on doing violence to people of faith.” Id. 4 17.

The Court received submissions from the parties. And the Court held a

hearing.§

ANALYSIS

I, PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

A. Preliminary Injunction Standard

Generally, a party seeking preliminary injunctive relief “must show

(1) irreparable harm; (2) either a likelihood of success on the merits or both serious

questions on the merits and a balance of hardships decidedly favoring the moving

party; and (3) that a preliminary injunction is in the public interest.” N. Am. Soccer

League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018). Where, like

5 Defendant Van Houten submitted an affirmation where he stated, through

counsel, that he has “no intent to enforce the statute now at issue in this case.”

Dkt. 40, § 38. Van Houten also included an affidavit where he stated that, as the

“chief prosecutor for Tompkins County,” he made the “policy decision” that the

“Tompkins County District Attorney’s Office would not prosecute cases where a

lawful gun owner was charged with possession of a firearm in a church or place of

worship so long as that individual was otherwise acting in a law-abiding manner.”

Dkt. 40-1, (4-6. Defendant Wetmore submitted an affidavit where he stated that,

in his “discretion, [he] will not be taking any action to enforce the provision of New

York Penal Law § 265.01-(e)(2)(c).” Dkt. 41, | 6. Defendant Steven A. Nigrelli

submitted a Memorandum in Opposition to Plaintiffs’ Motion for a Preliminary

Injunction. Dkt. 43. The State’s submission included a Declaration from Patrick J.

Charles with exhibits (Dkt. 43-1), and a Declaration form Attorney Daniel R.

Maguire with exhibits. Dkt. 43-2 — 43-7. With the Court’s permission, Everytown

for Gun Safety filed an amicus curiae brief. Dkt. 51. Plaintiffs then submitted a

reply brief. Dkt. 52.

6 At the request of the State (see Dkt. 53), Pastor Spencer testified at the hearing,

similar to his declaration. No other witness was called.

here, the preliminary injunction “would stay government action taken in the public

interest pursuant to a statutory or regulatory scheme,” the moving party “must

satisfy the more rigorous prong of ‘likelihood of success” at step two. Bronx

Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.8d 342, 349 (2d Cir. 2003).

The standard may be further heightened if “(Gi) an injunction would alter,

rather than maintain, the status quo, or (ii) an injunction will provide the movant

with substantially all the relief sought and that relief cannot be undone even if the

defendant prevails at a trial on the merits.” Tom Doherty Assocs., Inc. v. Saban

Ent., Inc., 60 F.3d 27, 33-34 (2d Cir. 1995). If either scenario applies, a plaintiff

must show “a clear or substantial likelihood of success on the merits” at step two.

See N. Am. Soccer League, 883 F.3d at 37 (internal quotations and citation omitted);

Tom Doherty Assocs., 60 F.3d at 35.

When deciding whether an injunction is mandatory and would alter the

status quo, the status quo is “the last actual, peaceable uncontested status which

preceded the pending controversy.” N. Am. Soccer League, 883 F.3d at 37 (quoting

Mastrio v. Sebelius, 768 F.3d 116, 120 (2d Cir. 2014) (per curiam)) (internal

quotations omitted). The court also considers whether the injunction would

“command|] some positive act”—rather than prohibit some act—by the defendant.

Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006) (quoting Tom

Doherty Assocs., 60 F.3d at 34). An injunction that enjoins a defendant from

enforcing a regulation “clearly prohibits, rather than compels, government action by

enjoining the future enforcement.” Id. at 90.

Moreover, the heightened standard does not apply to “any [request for an]

injunction where the final relief for the plaintiff would simply be a continuation of

the preliminary relief.” Tom Doherty Assocs., 60 F.3d at 34. Instead, the

heightened standard applies when the injunction “will render a trial on the merits

largely or partly meaningless, either because of temporal concerns’—like a case

involving a live, televised event scheduled for the day the court granted preliminary

relief—“or because of the nature of the subject of the litigation”—like a case

involving disclosure of confidential information. Jd. at 35. If a preliminary

injunction “will make it difficult or impossible to render a meaningful remedy to a

defendant who prevails on the merits at trial,” then the heightened standard

applies; “[o]therwise, there is no reason to impose a higher standard.” Id.

In this case, Plaintiffs request that this Court “preliminarily enjoin

Defendants from enforcing” the houses of worship exclusion “against Pastor Spencer

and His Tabernacle Church, Inc.” Dkt. 18-3, at 3. This request seeks to prohibit

Defendants from enforcing the new houses of worship exclusion; it does not seek an

order requiring Defendants to act. In other words, Plaintiffs seeks to restore the

status that existed before implementation of the houses of worship exclusion. They

therefore seeks a prohibitory—not a mandatory—injunction. As stated in

Hardaway, the Constitution and the Bill of Rights represent the status quo—not

2022 legislation on the books for a few months.’ See Hardaway, No. 22-CV-771,

2022 WL 16646220, at *6.

And relief remains available to Defendants if they prevail at trial on the

merits. If Defendants prevail, the Court could vacate any injunctive relief and

allow them again to enforce the houses of worship exclusion.

Thus, the standard remains that Plaintiffs must demonstrate: (1) irreparable

harm; (2) a likelihood of success on the merits; and (8) that a preliminary injunction

is in the public interest. See N. Am. Soccer League, 883 F.3d at 37; Bronx

Household of Faith, 331 F.3d at 349.

B. Likelihood of Success on the Merits

Plaintiffs are likely to succeed on the merits.

1. Free Exercise Clause

The First Amendment to the Constitution provides that “Congress shall

make no law . .. prohibiting the free exercise” of religion. U.S. Const. amend. 1.8

Plaintiffs argue that, by “prohibiting the exercise of a fundamental constitutional

right in places of worship while permitting its exercise on other private

property—and by denying to religious leaders the authority it reserves to other

private property owners to permit firearms,” the State “treats comparable secular

7 The Court recognizes that courts should not lightly enjoin enforcement of laws.

The law at issue here, however, is at odds with higher law, namely—the

Constitution. The Court notes here too that Plaintiffs would meet the heightened

standard in any event—even if it applied.

8 The Free Exercise Clause applies to the States under the Fourteenth Amendment.

Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

10

activity more favorably than religious exercise and discriminates on the basis of

religion.” Dkt. 13-3, at 1. For this reason, and as set forth below, the houses of

worship exclusion violates Plaintiffs’ right to free exercise of religion guaranteed by

the First Amendment.

The Free Exercise Clause “protects not only the right to harbor religious

beliefs inwardly and secretly.” Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407,

2421 (2022). It also does “perhaps its most important work by protecting the ability

of those who hold religious beliefs of all kinds to live out their faiths in daily life

through the performance of (or abstention from) physical acts.” Id. (internal

citation omitted). Under Supreme Court precedent, “a plaintiff bears certain

burdens to demonstrate an infringement of his rights under the Free Exercise

[Clause].” Id. If the plaintiff carries these burdens, “the focus then shifts to the

defendant to show that its actions were nonetheless justified and tailored consistent

with the demands of our case law.” Id.

Specifically, “a plaintiff may carry the burden of proving a free exercise

violation” by “showing that a government entity has burdened his sincere religious

practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.” Id. at

2421-22 (citation omitted). Should a plaintiff make such a showing, the Court must

find a First Amendment violation “unless the government can satisfy ‘strict

scrutiny by demonstrating its course was justified by a compelling state interest

and was narrowly tailored in pursuit of that interest.” Id. at 2422 (quoting Church

11

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)).9

Plaintiffs are likely to succeed on the merits of their Free Exercise Clause claims.

a. The Houses of Worship Exclusion Burdens Plaintiffs’ Sincere

Religious Practices

Plaintiffs satisfy this initial burden because, on this record, the houses of

worship exclusion burdens their sincerely held religious practices. Pastor Spencer

believes that he has “a moral and religious duty to take reasonable measures to

protect the safety of those who enter the Church.” Dkt. 13-1, § 22. He explained

that the “Bible often refers to religious leaders as ‘shepherds’ and tasks them with

caring for and protecting their ‘flocks.” Jd. He therefore believes that “providing

for the physical safety of the Church—the body of Christ—is [his] religious act and

duty as a pastor.” Id. He also believes that “the Bible calls on the Church—as

members of a single family united in Jesus Christ—to love, serve, and protect one

another.” Id. § 23. These beliefs are “shared by the Church.” Id. 22, 23.

Consistent with these religious beliefs, Pastor Spencer “regularly carried a

concealed pistol” on Church campuses and allowed “security volunteers and other

churchgoers with New York carry licenses” to do the same. Id. { 24. In short, he

9 At oral argument, Plaintiffs argued that, under the Supreme Court’s decision in

Tandon v. Newsom, __ U.S. __, 141 §.Ct. 1294 (2021), they need not demonstrate a

burden on a sincerely held religious practice to prevail here. According to Plaintiffs,

Tandon instructs that, because the Houses of Worship provision—on its

face—targets religious activity, strict scrutiny automatically applies. The State

disagreed. The Court need not resolve the issue of whether a threshold showing of a

burden on a sincerely held religious belief is required. As discussed below, that

requirement—if it exists—is met because the houses of worship exclusion does

burden Plaintiffs’ sincerely held religious practices.

12

“carried and allowed others to carry” concealed firearms at church “to ensure

protection of the Church and its worshippers in case of violent confrontation” in

accordance with their religious beliefs. Id. He would have continued to do so “but

for the enactment and enforcement” of the place of worship exclusion. Id.

The State argues that the place of worship exclusion “does not foreclose

Plaintiffs’ ability to protect worshippers at [the] [C]hurch with armed individuals.”

Dkt. 48, at 9. The statute, it explains, “provides alternative mechanisms for

Plaintiffs to secure the safety of their congregation” such as permitting certain

categories of people—such as police officers and registered security guards—to carry

at Church without violating the place of worship exclusion. Jd. This does not

relieve the burden the new law places upon Plaintiffs’ religious practices.

Pastor Spencer testified that members of the Church’s security team of

congregants protect the congregation pursuant to a calling from God. Hired outside

security, Spencer believes, is not an adequate substitute because such individuals

would be working for a paycheck—not acting pursuant to a spiritual calling. For

this reason, he believes hired security would be far less effective than the organic

security team at protecting the flock. But it does not ultimately matter whether he

is correct that hired security—armed or not—would effectively protect the

congregation. Pastor Spencer and Church members have a religious belief that

they, themselves, must protect the flock. Indeed, religious beliefs “need not be

acceptable, logical, consistent, or comprehensible to others in order to merit First

Amendment protection.” Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531

13

(quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707,

714 (1981)).

In any event, the Church congregation includes—at most—only a handful of

police officers or other individuals who might fit into a statutory exception. Even if

these individuals were to volunteer to provide security at the Church, they could not

conceivably protect the approximately 800 individuals who worship at the Church

throughout each week—given that they have day jobs and “work a lot of hours.”

And to the extent the Church hired private security guards or police officers to

protect the congregation, the financial burden would necessarily reduce the amount

of ministry the Church could perform. This is precisely the sort of meddling in

religious practices that courts find time and again violates the Free Exercise

Clause. See, e.g., Cent. Rabbinical Cong. of U.S. & Canada v. New York City Dep’t

of Health & Mental Hygiene, 763 F.3d 183, 198 (2d Cir. 2014) (enjoining, at the

request of Orthodox Jewish organizations, enforcement of city ordinance prohibiting

any person from performing direct oral suction as part of circumcision without first

obtaining signed written consent from one of the child’s parents as violative of the

Free Exercise Clause). Further, like in Church of the Lukumi Babalu Aye, the State

has not “questioned the sincerity” of Plaintiffs’ religious beliefs. See 508 U.S. at

531.

On these facts, Plaintiffs have demonstrated that the State, by enacting the

houses of worship exclusion, has burdened their sincere religious practices.

14

b. The Houses of Worship Exclusion Is Not “Neutral” or “Generally

Applicable”

The place of worship exclusion is neither neutral nor generally applicable

and, therefore, must satisfy strict scrutiny. See Kennedy, 142 S.Ct. at 2422

(“Failing either the neutrality or general applicability test is sufficient to trigger

strict scrutiny’).

A law is not neutral “if the object of [the] law is to infringe upon or restrict

practices because of their religious motivation.” Church of the Lukumi Babalu Aye,

Inc. 508 U.S. at 533. To determine the object of a law, the court “must begin with

its text, for the minimum requirement of neutrality is that a law not discriminate

on its face.” Id. Here, the houses of worship exclusion is not facially neutral.

Under its plain text, it restricts concealed carry in “any place of worship or religious

observation.” N.Y. Pen. L. § 265.01-e(2)(c). There is no “secular meaning

discernable from the language or context.” Church of the Lukumi Babalu Aye, Inc,

508 U.S. at 533. The law therefore “lacks facial neutrality.” Id.

Even if the place of worship exclusion did not discriminate on its face, the

Court’s inquiry would not “end with the text of the law[] at issue.” Jd. at 534.

Facial neutrality “is not determinative.” Id. The Free Exercise Clause “protects

against governmental hostility which is masked, as well as overt.” Id. Thus, the

Court “must survey meticulously the circumstances of governmental categories to

eliminate, as it were, religious gerrymanders’ (internal citation omitted). Here, the

place of worship exclusion is directed at religious activity. Careful drafting ensured

that carrying of concealed weapons for religious reasons at place of worship is

15

prohibited, while the same carrying in numerous other circumstances remains

permissible. For these reasons, the place of worship exclusion is not a “neutral”

law.

Nor is it generally applicable. The general applicability requirement

prohibits the government from, “in a selective manner[,] impos[ing] burdens only on

conduct motivated by religious belief.” Church of the Lukumi Bablu Aye, Inc., 508

U.S. at 543. A government policy “will fail the general applicability requirement if

it ‘prohibits religious conduct while permitting secular conduct that undermines the

government’s asserted interests in a similar way,’ or if it provides ‘a mechanism for

individualized exemptions.” Kennedy, 142 S.Ct. at 2422 (quoting Fulton v. City of

Philadelphia, Pennsylvania, 141 S.Ct. 1868, 1876 (2021)). See also Cent. Rabbinical

Cong. of U.S. & Canada, 763 F.3d at 197 (A law is “not generally applicable if it is

substantially underinclusive such that it regulates religious conduct while failing to

regulate secular conduct that is at least as harmful to the legitimate government

interests purportedly justifying it”). Here, the State’s prohibition on concealed carry

“was not applied in an evenhanded, across-the-board way.” Kennedy, 142 S.Ct. at

2423. It specifically targets carrying of firearm motivated by religious beliefs while

permitting concealed carry in relation to numerous secular activities.

The State argues that Plaintiffs fail to demonstrate that that the statute is

not a neutral law of general applicability because they “largely ignore the existence

of subsections e(2)(a)-(b) and (d)-(t), which prohibit the carrying of firearms in a

variety of other sensitive locations including, but not limited to, schools, public

16

parks, homeless shelters, public transit, polling places, and theatres.” Dkt. 48, at

11. This argument fails. The Supreme Court instructs that “government

regulations are not neutral and generally applicable, and therefore trigger strict

scrutiny under the Free Exercise Clause, whenever they treat any comparable

secular activity more favorably than religious exercise.” Tandon, 141 S.Ct. at 1296

(emphasis in original). It is “no answer that a State treats some comparable secular

businesses or other activities as poorly as or even less favorably than the religious

exercise at issue.” Id.

Whether “two activities are comparable for purposes of the Free Exercise

Clause must be judged against the asserted government interest that justifies the

regulation at issue.” Id. The State asserts that it has a “purpose of the highest

order in the protection of its citizens from gun violence.” Dkt. 438, at 12n.5. It

explains that the statute prohibits carrying of firearms in locations that create

“risks for gun violence” because they are “often busy, crowded, and dense locations

where individuals are often seated or moving slowly.” Jd. at 11.

But other private property owners—such as proprietors of hair salons, retail

stores, shopping malls, gas stations, office buildings, garages, and countless other

private actors hosting secular activities—-may decide for themselves whether to

permit the carrying of firearms on their property. See N.Y. Pen. L. § 265.01-d(1)

(prohibiting carry of firearm on private property only where property owner has not

expressly permitted it). See also Roman Cath. Diocese of Brooklyn v. Cuomo, 141

17

S.Ct. 68, 66 (2020) (such secular establishments are appropriate comparators for

houses of worship).

In sum, on this record, Plaintiffs have demonstrated that the State permits

countless other private actors hosting secular activities to do what a house of

worship may not. The houses of worship exclusion is not a neutral law of general

applicability.

c. The State Fails to Satisfy Strict Scrutiny

Faced with Plaintiffs’ showing that the houses of worship exclusion burdens

their sincerely held religious practices pursuant to a policy that is not neutral or

generally applicable, the State must demonstrate that the exclusion survives strict

scrutiny—which is “the most rigorous of scrutiny.” Church of the Lukumi Babalu

Aye, Inc., 508 U.S. at 546. It has not.

To satisfy strict scrutiny, the government must show that “its restrictions on

the plaintiff’s protected rights serve a compelling interest and are narrowly tailored

to that end.” Id. at 2426. The standard is “not watered down[,] but really means

what it says.” Jd. (internal citations omitted). Thus, a law that “targets religious

conduct for distinctive treatment or advances legitimate governmental interests

only against conduct with a religious motivation will survive strict scrutiny only in

rare cases.” Id. (emphasis added).

The State argues that it “indisputably has a compelling purpose of the

highest order in the protection of its citizens from gun violence in houses of

worship.” Dkt. 48, at 12n.5. Plaintiffs concede that the State “has a compelling

18

interest in preventing violent crime.” Dkt. 13-3, at 9. The State, however, fails to

establish that the houses of worship exclusion is narrowly tailored to advance that

interest. It argues that “in a sensitive location such as a religious institution, there

is no narrower way to prevent” gun violence than “by ensuring that only trained

individuals specifically tasked with protecting the community are armed.” The

Court disagrees.

In an analogous case, the Supreme Court explained that “narrow tailoring

requires the government to show that measures less restrictive of the First

Amendment activity could not address its interest in reducing [gun violence].”

Tandon, 141 S.Ct. at 1296-97. Where “the government permits other activities to

proceed with precautions, it must show that the religious exercise at issue is more

dangerous than those activities even when the same precautions are applied.

Otherwise, precautions that suffice for other activities suffice for religious exercise

too.” Id.

The State allows a broad swath of private property owners to decide whether

to permit the otherwise-lawful carrying of firearms on their property. There is no

evident justification for the view that secular business owners are more qualified

than religious leaders to determine whether to allow armed self-defense on their

property. Moreover, a bad-intentioned armed person looking to attack worshippers

will not be deterred in the by the fact that the State can now add unlawful carry in

a “sensitive location” to the slew of criminal charges that would stem from such an

attack. The houses of worship exclusion is therefore not narrowly tailored to

19

advance the State’s interest in protecting citizens from gun violence. The State fails

to satisfy strict scrutiny.

In sum, Plaintiffs have demonstrated, on this record, that the State has

burdened their sincere religious practice pursuant to a policy that is not “neutral” or

“generally applicable,” and the State fails to demonstrate that its course was

justified by a compelling state interest and was narrowly tailored in pursuit of that

interest. Plaintiffs are likely to prevail on the merits of their claims under the Free

Exercise Clause.

2. Establishment Clause

The First Amendment to the Constitution also provides that “Congress shall

make no law respecting an establishment of religion.” U.S. Const. amend. I.1°

Plaintiffs argue that, by dictating how individuals may attend worship services, the

houses of worship exclusion encroaches on church autonomy in violation of the

Establishment Clause. Dkt. 13-3, at 14. According to Plaintiffs, the State “has

purported to dictate what churches may permit during religious worship itself—a

matter that strikes at the very core of church autonomy.” Jd. at 3-4. Albeit a closer

question, Plaintiffs are nevertheless likely to succeed on the merits of their

Establishment Clause claim.

The First Amendment “protects the right of religious institutions ‘to decide

for themselves, free from state interference, matters of church government as well

10 This “mandate has been made ‘wholly applicable to the States by the Fourteenth

Amendment.” Montesa v. Schwartz, 836 F.3d 176, 195 (2d Cir. 2016) (quoting Sch.

Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 215 (1963)).

20

as those of faith and doctrine.” Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S.Ct. 2049, 2055 (2020) (quoting Kedroff v. Saint Nicholas Cathedral of Russian

Orthodox Church in North America, 344 U.S. 94, 116 (1952)). The “independence of

religious institutions in matters of ‘faith and doctrine’ is closely linked to

independence in what we have termed ‘matters of church government.” Jd. at 2060

(quoting Hosanna-Tabor Evangelical Lutheran Church & Sch, v. E.E.O.C., 565 U.S.

171, 186 (2012)). This “does not mean that religious institutions enjoy a general

immunity from secular laws, but it does protect their autonomy with respect to

internal management decisions that are essential to the institution’s central

mission.” Id.

The State argues that the houses of worship exclusion “does not infringe upon

Plaintiffs’ right to decide matters of ‘faith and doctrine’ or ‘church government”

because Plaintiffs “do not allege that carrying a firearm in church is itself an

element of their religious practice.” Dkt. 48, at 13. According to the State,

Plaintiffs only allege that the houses of worship exclusion “impermissibly restricts

what worshippers may possess in houses of worship.” Jd. This argument fails. As

discussed above, Pastor Spencer and members of the Church’s security team

provide armed security to the congregation because they sincerely believe that God

has called them to do so. The new law, in effect, forces them to disregard this

spiritual calling and, notably, dictates that protection of the Church may only be

provided by a different group of people—i.e., individuals fitting into a statutory

exemption. The Supreme Court instructs that “a component” of a church’s

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“autonomy is the selection of the individuals who play certain key roles.” Our Lady

of Guadalupe Sch., 140 8.Ct. at 2060 (emphasis added). The Establishment Clause

protects Plaintiffs’ conduct. Indeed, the place of worship exclusion encroaches on

matters “closely linked” with the Church’s right to determine how best to conduct

its own affairs. Our Lady of Guadalupe, 140 S.Ct. at 2061.

The Supreme Court instructs that “the Establishment Clause must be

interpreted by ‘reference to historical practices and understandings.” Kennedy, 142

S.Ct. at 2428 (quoting Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 576 (2014)).

The “line that courts and governments must draw between the permissible and the

impermissible has to accord with history and faithfully reflect the understanding of

the Founding Fathers.” Jd. (internal quotations and alterations omitted). An

“analysis focused on original meaning and history, [the Supreme] Court has

stressed, has long represented the rule rather than some exception within the

Court’s Establishment Clause jurisprudence.” Jd. (internal quotations and

alterations omitted).

On this record, the State fails to demonstrate that the houses of worship

exclusion is consistent with the nation’s “historical practices and understandings.”

Kennedy, 142 8.Ct. at 2428; Galloway, 572 U.S. at 576. Plaintiffs argue that, “[o]ver

the decades, the Supreme Court has enforced the Establishment Clause’s guarantee

of church autonomy to prevent state interference with religious doctrine and the

line between orthodoxy and heresy, rules for church governance (or “ecclesiology’),

appointing, removing, and fixing the authority of church leaders, the admission and

22

discipline of church members, and other matters.” Dkt. 13-3, at 14-15 (collecting

Supreme Court cases). Yet the State makes no attempt to demonstrate that the

regulation is consistent with this Nation’s historical tradition in this area. See

generally, Dkt. 48.

Plaintiffs are likely to prevail on the merits of their the Establishment Clause

claim.

3. Right to Keep and Bear Arms

Lastly, as this Court determined in Hardaway, the houses of worship

exclusion violates the right of individuals to keep and bear arms in public for self-

defense. That right was enshrined in the Second Amendment to the Constitution,

ratified in 1791: “A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.

Const. amend. II.

a. Applicable Supreme Court Precedent

On three recent occasions, the Supreme Court explored this right and

supplied the framework that resolves the issues on this motion pertaining to the

right of individuals to keep and bear arms in public for self-defense. A thorough

understanding of the Supreme Court's Heller, McDonald, and Bruen opinions 1s

essential. This Court discussed them at length in Hardaway, No. 22-CV-771, 2022

WL 16646220, at *7-14.

Most relevant here, Bruen held that the Second and Fourteenth Amendments

“protect an individual’s right to carry a handgun for self-defense outside the home.”

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Bruen, 142 8.Ct. at 2122 (emphasis added). Most gun owners “do not wear a

holstered pistol at their hip in their bedroom or while sitting at the dinner table.

Although individuals often ‘keep’ firearms in their home, at the ready for self-

defense, most do not ‘bear’ (1.e., carry) them in the home beyond moments of actual

confrontation. To confine the right to ‘bear’ arms to the home would nullify half of

the Second Amendment’s operative protections.” Bruen, 142 S.Ct. at 2134-35.

The Court continued, “[m]Joreover, confining the right to ‘bear’ arms to the

home would make little sense given that self-defense is ‘the central component of the

[Second Amendment] right itself.” Id. (quoting District of Columbia v. Heller, 554

U.S. 570, 599 (2008)). See also McDonald, 561 U.S. at 767, 130 S.Ct. 3020. After

all, “the Second Amendment guarantees an ‘individual right to possess and carry

weapons in case of confrontation, Heller, 554 U.S. at 592, 128 S.Ct. 2783, and

confrontation can surely take place outside the home.” Jd. at 2185. “Many

Americans hazard greater danger outside the home than in it. The text of the Second

Amendment reflects that reality. The Second Amendment’s plain text thus

presumptively guarantees petitioners Koch and Nash a right to bear arms in public

for self-defense.” Id. (citation omitted) (emphasis added).

Bruen set forth the relevant test: “when the Second Amendment’s plain text

covers an individual’s conduct, the Constitution presumptively protects that

conduct. To justify its regulation, the government may not simply posit that the

regulation promotes an important interest. Rather, the government must

demonstrate that the regulation is consistent with this Nation’s historical tradition

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of firearm regulation. Only if a firearm regulation is consistent with this Nation’s

historical tradition may a court conclude that the individual’s conduct falls outside

the Second Amendment’s unqualified command.” Jd. at 2126 (citation and internal

quotation omitted) (emphasis added). In other words, “the government must

affirmatively prove that its firearms regulation is part of the historical tradition

that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127.

b. Application of the Bruen Test in this Case

In this case, tracking Bruen, Spencer is an ordinary, law-abiding citizen to

whom the Second Amendment applies. Id. at 2134.1! He seeks to carry firearms for

the purpose of defending himself and the Church as he goes about his daily life. As

it did for the petitioners in Bruen, the Second Amendment’s plain text thus

presumptively guarantees Spencer’s right to “bear” arms for self-defense outside of

his own home.

Further, the State fails to demonstrate that the houses of worship exclusion

is consistent with this Nation’s historical tradition of firearm regulation. This

Court explained in Hardaway that the houses of worship exclusion finds no analogy

in Bruen’s recognized sensitive places. See Hardaway, No. 22-CV-771, 2022 WL

16646220, at *14. The same analysis and conclusion are appropriate here.

Nor is there an American tradition supporting the houses of worship

exclusion. As it did in Hardaway, the State cites to a handful of enactments in an

attempt to meet its “burden” to demonstrate a tradition of accepted prohibitions of

11 The same holds for non-party Pruitt as well, and as to countless others.

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firearms in place of worship or religious observation. Bruen, at 2135, 2138, 2150,

2156. See Dkt. 43, at 17. This Court has explained that the notion of a “tradition”

is the opposite of one-offs, outliers, or novel enactments. “Tradition” requires

“continuity.” See generally Bruen, 142 8.Ct. at 2135-56; Washington v. Glucksberg,

521 U.S. 702, 723 (1997); Tradition, The American Heritage Dictionary of the

English Language ed. 2011). These enactments are of unknown duration,!2 and

the State has not met is burden to show endurance (of any sort) over time.!3

Nor can the State demonstrate constitutionality of the houses of worship

exclusion by identifying prohibitions on carrying firearms “in places where people

gather in large crowds and confined places.” See Dkt. 48, at 18. Bruen squarely

rejected this approach. See Bruen, 142 S.Ct. at 2134 (‘[E]xpanding the category of

‘sensitive places’ simply to all places of public congregation that are not isolated

from law enforcement defines the category of ‘sensitive places’ far too broadly”). In

effect, such an approach would “exempt cities from the Second Amendment and

would eviscerate the general right to publicly carry arms for self-defense.” Id.

As a result, the Court is left—as it was in Hardaway—with a handful of

seemingly spasmodic enactments involving a small minority of jurisdictions

governing a small minority of population. And they were passed nearly a century

12 As Bruen noted, courts are “not obliged to sift the historical materials for evidence

to sustain” the challenged statute; “that is [the State’s] burden.” Bruen, at 2150.

13 A few additional municipal enactments of similar vintage (see, e.g., Dkt. 43, at 17)

do not alter the result.

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after the Second Amendment’s ratification in 1791. These outlier enactments also

contrast with colonial-era enactments that, in fact, mandated such carry at places of

worship. See generally Benjamin Boyd, Take Your Guns to Church: The Second

Amendment and Church Autonomy, 8 LIBERTY UNIV. L. REV. 653, 699 (2014). The

State’s proffered enactments are far too remote, far too anachronistic, and very

much outliers—insufficient, then, in the search for an American tradition.'4

In sum, for the reasons discussed above and in this Court’s Hardaway

decision, no proper analogy to sensitive places exists in this case. And the Nation’s

history does not countenance such an incursion into the right to keep and bear arms

across all houses of worship across the state. The right to self-defense is no less

important and no less recognized at these places. The Constitution requires that

individuals be permitted to use handguns for the core lawful purpose of self-defense.

McDonald, 561 U.S. at 767. And it protects that right outside the home and in

public. Bruen, 142 S.Ct. at 2021. Asin Bruen, where the Court stated that,

“{nJothing in the Second Amendment’s text draws a home/public distinction with

respect to the right to keep and bear arms,” id. at 14, nothing there casts outside of

its protection houses of worship. New York’s exclusion violates “the general right to

14 The amicus curiae argues—as it did in Hardaway—that a small number of state

laws is sufficient so long as there is not overwhelming evidence of an enduring

tradition to the contrary. See Dkt. 51, at 7-9. This turns the test and its burden on

their heads. The Bruen Court itself rejected several outliers and was looking for a

“broad tradition” of states “meaningfully restrict[ing] public carry.” Bruen, 142

S.Ct. at 2156.

27

publicly carry arms for self-defense.” Id. It, too, is one of the policy choices taken

“off the table” by the Second Amendment. Heller, 554 U.S. at 636.

For these reasons, New York’s houses of worship exclusion “violates the

Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-

defense needs from exercising their right to keep and bear arms.” Bruen, 142 S.Ct.

at 2156. Plaintiffs are likely to succeed on the merits of their Second Amendment

claim.

C. Irreparable Harm Absent Preliminary Injunctive Relief

Plaintiffs argue they will suffer irreparable harm absent a preliminary

injunction. Dkt. 13-3, at 25. They maintain that, “if an injunction is not granted,

Pastor Spencer and his New York flock will continue to be put to the

unconstitutional choice of which of their fundamental rights to forego to exercise the

other.” Jd. If they “choose to worship, they risk being victimized by violence with

no means to protect themselves.” Jd. Plaintiffs have established irreparable harm.

Irreparable harm is “certain and imminent harm for which a monetary award

does not adequately compensate.” Wisdom Imp. Sales Co., L.L.C. v. Labatt Brewing

Co., Lid., 339 F.3d 101, 113 (2d Cir. 2003). Irreparable harm exists “where, but for

the grant of equitable relief, there is a substantial chance that upon final resolution

of the action the parties cannot be returned to the positions they previously

occupied.” Brenntag Int'l Chem.., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir.

1999). The “denial of a constitutional right ordinarily warrants a finding of

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irreparable harm.” A.H. by & through Hester v. French, 985 F.3d 165, 184 (2d Cir.

2021).

Here, absent a preliminary injunction, Plaintiffs’ constitutional rights are

being violated. They are forced to give up their Second Amendment right to armed

self-defense outside the home. The “right to bear arms enables one to possess not

only the means to defend oneself but also the self-confidence—and psychic

comfort—that comes with knowing one could protect oneself if necessary.” Grace v.

D.C., 187 F. Supp. 3d 124, 150 (D.D.C. 2016). One cannot regain that peace of mind

or readiness after the fact. See Heller, 554 U.S. at 595 (noting that the Second

Amendment permits an individual to protect himself when “the intervention of

society” on his behalf “may be too late to prevent an injury”). Indeed, the “Second

Amendment protects ... intangible and unquantifiable interests.” Ezell v. City of

Chicago, 651 F.3d 684, 698 (7th Cir. 2011). Infringements “of this right cannot be

compensated by damages.” Id. See also Antonyuk, 2022 WL 3999791, at *36

(concluding that the plaintiff has “shown the adverse factual consequences” that he

will suffer if an injunction is not issued, namely, “diminished safety in all the

locations that he currently carries his concealed handgun that he will not be able to

carry it”).

Further, the Supreme Court has held that the loss of “First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.” Roman Cath. Diocese of Brooklyn, 141 S.Ct. at 67 (quoting Elrod v. Burns,

427 U.S. 347, 373 (1976)) (emphasis added). See also A.H. by & through Hester, 985

29

F.3d at 184 (“The denial of a constitutional right ordinarily warrants a finding of

irreparable harm, even when the violation persists for ‘minimal periods’ of time.”)

(emphasis added). Here, too, Plaintiffs suffer irreparable injury each time they are

forced to give up their First Amendment freedoms.

The State argues that “there is no current risk of irreparable harm requiring

this Court’s intervention” because: (1) the statute “exempts multiple classes of

persons” permitting—among others—active and retired police officers, peace

officers, and security guards to carry firearms in sensitive locations; (2) Defendant

Nigrelli is “presently enjoined from enforcing the Place of Worship Provision as to

individuals with carry licenses who have been tasked with keeping the peace at

houses of worship;” and (8) the District Attorney Defendants have “sworn not to

enforce the provision while the courts determine its constitutionality.” Dkt. 43, at

23. These arguments fail.

As discussed, the Church congregation includes—at most—only a handful of

police officers or other individuals who could, potentially, fit into a statutory

exception. And these individuals’ capacity to provide protection—even if they were

to volunteer their services—would fall woefully short of the amount needed to

protect several hundreds of individuals who worship at the Church throughout each

week. Further, on December 7, 2022, the Second Circuit stayed the preliminary

injunction issued by this Court in Hardaway—except with respect to “persons who

have been tasked with the duty to keep the peace at places of worship.” See

Hardaway v. Nigrelli, Order, No. 22-2938, Dkt. 53 (2d Cir. Dec. 7, 2022). Pastor

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Spencer testified that he unaware of what the contours of that exception may be.

Lastly, although the District Attorney defendants promise not to prosecute

plaintiffs, see Dkt. 40-1, 41, they cannot bind their successors, and nothing prevents

them from changing their minds at any time.

In sum, there “can be no question that the challenged restrictions, if

enforced, will cause irreparable harm.” See Roman Cath. Diocese of Brooklyn, 141

S.Ct. at 67. Plaintiffs satisfy the irreparable harm element.

D. Public Interest

The Court must consider whether a preliminary injunction is in the public

interest. See Bronx Household of Faith, 331 F.3d at 349. The State argues that it

has a compelling interest in “public safety and crime prevention.” Dkt. 48, at 24

(quoting NYSRPA v. Cuomo, 804 F.8d 242, 261 (2d Cir. 2015)). But the State does

not show that the lawful carrying of firearms in houses of worship has resulted in

an increase in handgun violence, or that public safety would be impaired if this

exclusion is enjoined.

A preliminary injunction would, however, serve the public interest of

fostering self-defense in houses of worship across the state. The public has a

significant interest in the “strong sense of the safety that a licensed concealed

handgun regularly provides, or would provide, to the many law-abiding responsible

citizens in the state too powerless to physically defend themselves in public without

a handgun.” Antonyuk, 2022 WL 3999791, at *86. This is particularly true in light

of the violent attacks on houses of worship in recent history, as well as the

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numerous threats of violence that have been specifically directed toward Pastor

Spencer and the Church. See Dkt. 13-1, 4 34-38. And a preliminary injunction

fosters the First Amendment rights discussed above. A preliminary injunction is in

the public interest.

Il. SECURITY

Federal Rule of Civil Procedure 65(c) requires the Court to consider whether

it should require plaintiffs to post security and, if so, in what amount. See Dr.’s

Assocs., Inc. v. Distajo, 107 F.3d 126, 136 (2d Cir. 1997) (“Rule 65(c) gives the

district court wide discretion to set the amount of a bond, and even to dispense with

the bond requirement [in certain situations].”).

On these facts, the Court will not require Plaintiffs to post security because a

bond requirement does not fit the fact-pattern and interests involved in this case.

See Dr.’s Assocs., 107 F.3d at 135-36 (affirming district court’s decision not to

require security where the district court “found that [defendants] would not suffer

damage or loss from being forced to arbitrate in lieu of prosecuting their state-court

cases”); see also Clarkson Co. v. Shaheen, 544 F.2d 624, 632 (2d Cir. 1976) (Because

no request for a bond was ever made in the district court, and because, under Fed.

R. Civ. P. 65, “the amount of any bond to be given upon the issuance of a

preliminary injunction rests within the sound discretion of the trial court.”)

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HI. SCOPE

The State argues that Plaintiffs can only bring a facial—rather than an as-

applied—challenge to the houses of worship exclusion, which would succeed only if

Plaintiffs “show that ‘no set of circumstances exists under which the [statute] would

be valid, i.e., that the law is unconstitutional in all of its applications,’ or at least

that it lacks a ‘plainly legitimate sweep.” Dkt. 48, at 6 (quoting United States v.

Decastro, 682 F.3d 160, 168 (2d Cir. 2012)). The argument fails.

Plaintiffs have shown, at a minimum, that the houses of worship exclusion

lacks a “plainly legitimate sweep” in that it forces individuals to give up their First

Amendment freedoms as well as their rights to armed self-defense outside the

home. See Decastro, 682 F.3d at 168 (to prevail on a facial challenge, a plaintiff

“would need to show that no set of circumstances exists under which the statute

would be valid, i.e., that the law is unconstitutional in all of its applications, or at

least that it lacks a plainly legitimate sweep”) (internal citation omitted). And it

bears noting that neither the parties nor the Court’s imagination has identified a

plainly legitimate sweep.

IV. STAY PENDING APPEAL

The factors “relevant to granting a stay pending appeal are the applicant’s

‘strong showing that he is likely to succeed on the merits,’ irreparable injury to the

applicant in the absence of a stay, substantial injury to the nonmoving party if a

stay 1s issued, and the public interest.” Uniformed Fire Officers Ass’n v. de Blasio,

973 F.3d 41, 48 (2d Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). The

33

first two factors “are the most critical, but a stay is not a matter of right, even if

irreparable injury might otherwise result, it is an exercise of judicial discretion, and

the party requesting a stay bears the burden of showing that the circumstances

justify an exercise of that discretion.” Jd. (internal citation and quotation marks

omitted).

Here, a stay pending appeal is not warranted solely under these factors. As

discussed above, Plaintiffs’ constitutional rights are being violated absent a

preliminary injunction. The State has not established irreparable injury in the

absence of a stay. The balance of hardships and public interest weigh in favor of

Plaintiff, also as discussed above. Finally, it is Plaintiffs who have demonstrated

that they are likely to succeed on the merits. As in Hardaway, legislative

enactments may not eviscerate the Bill of Rights. Every day they do is one too

many. Hardaway, No. 22-CV-771, 2022 WL 16646220, at *19.

Nevertheless, as discussed among the Court and the parties at the hearing,

and as jointly proposed by Plaintiffs and the State (see Dkt. 55):

(1) This preliminary injunction will be stayed pending appeal, consistent

with Defendant Nigrelli’s representation at the December 19, 2022, status

conference that the stays entered by the Second Circuit in Antonyuk v. Hochul, No.

22-2908, and Hardaway v. Nigrelli, No. 222933 permit Plaintiffs to designate

individuals otherwise authorized by law to carry a firearm to do so on church

premises for the purposes of keeping the peace, without regard to whether they fall

within any of the exceptions set forth in N.Y. Penal Law §265.01e(3);

34

(2) Plaintiffs and Defendant Nigrelli agree to follow an expedited briefing

schedule in the Second Circuit, with appellants’ opening brief to be filed 45 days

from the date of this Court’s order granting a preliminary injunction, appellees’

brief to be filed 45 days after appellants’ opening brief, and appellants’ reply brief to

be filed 14 days after the appellees’ brief; and

(3) Defendant Nigrelli will consent to any request by Plaintiffs to have an

appeal in this case heard together with Antonyuk and Hardaway.

CONCLUSION

For the above reasons, the Court GRANTS Plaintiffs’ motion for a

preliminary injunction as follows: it is

ORDERED that Defendants, in their official capacities, as well as their

officers, agents, employees, attorneys, and all persons in active concert or

participation with them who receive actual notice of the Order, are enjoined,

effective immediately, from implementing or enforcing $51001, codified at N.Y.

Penal Law §265.01-e, against Pastor Spencer, the Church, its members, or their

agents and licensees;

ORDERED that this preliminary injunction shall remain in effect pending

disposition of the case on the merits;

ORDERED that no bond shall be required; and

NEVERTHELESS, it is

ORDERED that this preliminary injunction is stayed pending appeal,

consistent with Defendant Nigrelli’s representation at the December 19, 2022,

35

status conference that the stays entered by the Second Circuit in Antonyuk v.

Hochul, No. 22-2908, and Hardaway v. Nigrelli, No. 222933 permit Plaintiffs to

designate individuals otherwise authorized by law to carry a firearm to do so on

church premises for the purposes of keeping the peace, without regard to whether

they fall within any of the exceptions set forth in N.Y. Penal Law §265.01e(3).

SO ORDERED.

Dated: December 29, 2022

Buffalo, New York L

JOHN L. SINATRA, JR. )

UNITED STATES DISTRICT JUDGE

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