Petition for Writ of Certiorari — Nadine Gazzola, et al., Petitioners v. Kathleen Hochul, Governor of New York, et al.

Supreme Court briefJan 4, 2023

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No. 22In the

Supreme Court of the United States

GAZZOLA, et al.,

Petitioners,

HOCHUL, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT

Paloma A. Capanna

Counsel of Record

106-B Professional Park Drive

Beaufort, North Carolina 28516

(585) 377-7260

pcapanna@yahoo.com

Attorney for the Petitioners

318023

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

Is there a likelihood of success on the merits under

Winter v. Natural Resources Defense Council that

the meaning and purpose of “to keep,” as in “to keep

and bear arms” in the Second Amendment, creates

standing for the federally-licensed dealer in firearms

comparable to that of the individual, given that the

firearm is the only civil right dependent upon an object

for actualization?

Is there a likelihood of success on the merits under

Winter that “constitutional regulatory overburden”

could be used as a standard of constitutionality

of law(s) directed at federally-licensed dealers in

firearms to guard against dis-incentivizing the

industry from performing its necessary function for

individuals seeking to exercise their fundamental

Second Amendment rights?

Is there a likelihood of success on the merits under

Winter that the Second Amendment, in conjunction

with the Gun Control Act of 1968, the Firearm

Owners’ Protection Act of 1986, and the Brady Act

(1993), along with federal firearms compliance law

and regulation, protects the records of the federallylicensed dealer against government seizure of those

records, including for purposes of creating a firearms

owners’ registry?

Is there a likelihood of success on the merits under

NYSRPA v. Bruen that government actors must not

so frustrate a licensing scheme as to substantially

block issuance of licenses?

Is there a likelihood of success on the merits under

NYSRPA v. Bruen that government is prohibited

from requiring a license in order to purchase the class

of firearms commonly used and known as the “semiautomatic rifle,” where there is no historic analogue

for the same?

Is there a likelihood of success on the merits under

NYSRPA v. Bruen that government is prohibited

from requiring an ammunition background check

in order to purchase ammunition, where there is no

historic analogue for the same?

Is there a likelihood of success on the merits under

the Fifth Amendment that an individual cannot be

compelled to sign a document requiring attestation

of compliance while engaged in litigation to overturn

the certification mandate?

Are Petitioners entitled to preliminary injunctive

relief to stop enforcement of new laws, targeting statelicensed dealers in firearms, threatening catastrophic

constitutional, criminal, and regulatory penalties,

even where Respondents admit discriminatory animus

and intentionally disrupt normal implementation of

compliance and licensing systems?

iii

PARTIES TO THE PROCEEDING

Petitioners are Nadine Gazzola, individually, and as

co-owner, President, and as BATFE Federal Firearms

Licensee Responsible Person for Zero Tolerance

Manufacturing, Inc.; Seth Gazzola, individually, and as coowner, Vice President, and as BATFE FFL Responsible

Person for Zero Tolerance Manufacturing, Inc.; John

A. Hanusik, individually, and as owner and as BATFE

FFL Responsible Person for d/b/a “AGA Sales”; Jim

Ingerick, individually, and as owner and as BATFE FFL

Responsible Person for Ingerick’s, LLC, d/b/a “Avon Gun

& Hunting Supply”; Christopher Martello, individually,

and as owner and as BATFE FFL Responsible Person

for Performance Paintball, Inc., d/b/a “Ikkin Arms,”;

Michael Mastrogiovanni, individually, and as owner and

as BATFE FFL Responsible Person for “Spur Shooters

Supply”; Robert Owens, individually, and as owner and as

BATFE FFL Responsible Person for “Thousand Islands

Armory”; Craig Serafini, individually, and as owner and

as BATFE FFL Responsible Person for Upstate Guns

and Ammo, LLC; and, Nick Affronti, individually, and as

BATFE FFL Responsible Person for “East Side Traders

LLC”; and, Empire State Arms Collectors, Inc.

Respondents are Kathleen Hochul, in her Official

Capacity as Governor of the State of New York; Steven

A. Nigrelli, in his Official Capacity as the Acting

Superintendent of the New York State Police; Rossana

Rosado, in her Official Capacity as the Commissioner of

the Department of Criminal Justice Services of the New

York State Police; and, Leticia James, in her Official

Capacity as the Attorney General of the State of New York.

CORPORATE DISCLOSURE STATEMENT

(RULE 29.6)

There is no parent or publicly held company owning

10% or more of any corporate party’s stock, including

Petitioners “Zero Tolerance Manufacturing, Inc.,”

“Ingerick’s, LLC,” “Performance Paintball, Inc.,” “Upstate

Guns and Ammo, LLC,” “East Side Traders LLC,” or

“Empire State Arms Collectors, Inc.” The following

Petitioners are unincorporated sole proprietorships,

including Petitioners John A. Hanusik d/b/a “AGA Sales,”

Michael Mastrogiovanni as “Spur Shooters Supply,” and

Robert Owens as “Thousand Islands Armory.”

RELATED CASES

Gazzola, et al. v. Hochul, et al., No. 1:22-cv-1134, U.S.

District Court for the Northern District of New York –

Text Order denying requested relief Dec. 2, 2022, delayed

decision dated Dec. 7, 2022; and,

Gazzola, et al. v. Hochul, et al., No. 22-3068, U.S.

Court of Appeals for the Second Circuit – Order denying

requested relief entered Dec. 21, 2022.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . iii

CORPORATE DISCLOSURE STATEMENT

(RULE 29.6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . x

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

GR A NT OF A RULE 11 W RIT OF

CERTIORARI IS OF IMPERATIVE

PUBLIC IMPORTANCE . . . . . . . . . . . . . . . . . . . 2

A. F E D E R A L

FIREARMS

LICENSEE S I N N Y S A N D

NATIONWIDE ARE IMPACTED . . . . . . . 2

vii

Table of Contents

Page

B. ALL NYS COUNTIES ARE ALSO

IMPACTED . . . . . . . . . . . . . . . . . . . . . . . . . . 4

PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . 7

THE PETITIONERS AND THEIR MANY

ROLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

THE RESPONDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE PETITION . . . . 14

PETITIONERS’ NOVEL THEORIES

HAVE A LIKELIHOOD OF SUCCESS

TO SU PPORT A GR A NTING

PRELIMINARY INJUNCTIVE RELIEF . . 14

A. DEFINING “ TO K EEP ” W ILL

GIVE THE FFL DEALER SECOND

A M EN DM EN T PRO T EC T ION

EQUAL TO THE INDIVIDUAL . . . . . . . 14

THE DEFINITION OF “ TO

KEEP” UNDER THE SECOND

AMENDMENT . . . . . . . . . . . . . . . . . . 15

viii

Table of Contents

Page

2. “ C O N S T I T U T I O N A L

REGULATORY OVERBURDEN”

DEFINES THE BREAKPOINT

AGAINST LAWS DESIGNED

T O OR R E S U LT I NG I N

FFL INA BILIT Y TO MEET

COMPLIANCE DEMANDS . . . . . . . 18

B. F E D E R A L P R E - E M P T I O N

PROHIBITS A N Y FORM OF A

GUN OWNERS’ REGISTRY OR

ABUSE OF FEDERAL FIREARMS

COMPLIANCE TOOLS . . . . . . . . . . . . . . . 20

C. NYSRPA V BRUEN EXTENDS

AGAINST SCHEMES (A.) TO BLOCK

CONCEALED CARRY PERMITS; (B.)

TO REQUIRE SEMI-AUTOMATIC

RIFLE LICENSES; A ND, (C.)

T O R EQU IR E A M M U N I T ION

BACKGROUND CHECKS . . . . . . . . . . . . 26

II. WINTER ANALYSIS, USING THESE

CLAIMS, RESULTS IN A GRANTING

OF MUCH-NEEDED PRELIMINARY

INJUNCTIVE RELIEF . . . . . . . . . . . . . . . . . . 29

A. AT LEA ST ONE PETITIONER

HAS STANDING . . . . . . . . . . . . . . . . . . . . 29

Table of Contents

Page

AS TO CASES AND

CONTROVERSIES. . . . . . . . . . . . . . . 29

2. AS TO FACING “THREATENED

ENFORCEMENT OF A LAW” . . . . . 30

3. A S T O I N J U R I E S , A N D

WHICH ARE ON-GOING . . . . . . . . . 31

B. R E S P O N D E N T S

A RE

P R O P E R LY B E F O R E T H I S

COURT, IF THE RULE OF LAW

IS TO PREVAIL . . . . . . . . . . . . . . . . . . . . . 32

C. PET I T ION ER S A R E LI K ELY

TO SUCCEED ON THE

MERITS AGA INST THE NEW

LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

D. THE BALANCE OF EQUITIES

AND PUBLIC INTEREST WEIGH

I N FAV O R O F G R A N T I N G

EMERGENCY RELIEF . . . . . . . . . . . . . . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

TABLE OF CITED AUTHORITIES

Page

Cases – Supreme Court of the United States

Albertson v.

Subversive Activities Control Board,

382 U.S. 70 (1965) . . . . . . . . . . . . . . . . . . . . . . . 3, 11, 21

Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Elrod v. Burns,

427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Ex parte Young,

209 U.S. 123 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Haynes v. U.S.,

390 U.S. 85 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 21

McDonald v. Chicago,

561 U.S. 742 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Cited Authorities

Page

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

NYSRPA v. Bruen,

597 U.S. _____ (2022) . . . . . . . . . . 11, 15, 16, 26, 29, 33

NYSRPA v. NYC,

590 U.S. _____ (2020, slip opinion) . . . . . . . . . . . . . . 13

Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. ___, 141 S. Ct. 63 (2020, per curiam) . . . . 34

Rumsfeld v.

Forum for Acad. & Instit. Rights, Inc.,

547 U.S. 47 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Steelworkers v. U.S.,

361 U.S. 39 (1959) . . . . . . . . . . . . . . . . . . . 17, 18, 23, 26

Susan B. Anthony List,

573 U.S., 149 158159 (2014) . . . . . . . . . . . . . . . . . . . . . 31

Tandon v. Newsom,

593 U.S. ___, 141 S. Ct. 1294 (2021, per curiam) . . 34

Whole Woman’s Health v. Jackson,

594 U.S. _____ (2021) . . . . . . . . . . . . . . . . . . . 15, 26, 32

Winter v. Nat’l Resources Def. Council,

555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 29

xii

Cited Authorities

Page

Cases – 2d Circuit Court of Appeals

Cayuga Nation v. Tanner,

824 F.3d 321 (2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 31

Centro de al Comunidad Hispania de Locust

Valley v. Town of Oyster Bay,

868 F.2d 104 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 29

In re Deposit Ins. Agency,

482 F.3d 612 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 32

Picard v. Magliano,

42 F.4th 89 (2d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . 31

State Employees Bargaining Agent Coal. v.

Rowland,

494 F.3d 71 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . 32

Wisdom Import Sales Co. v. Labatt Brewing Co.,

339 F.3d 101, 113 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 32

Cases – Other

ACLU v. Reno,

929 F.Supp. 824 (E.D. Pa. 1996) . . . . . . . . . . . . . . . . 34

Dominion Bankshares Corp. v.

Devon Holding Co.,

690 F.Supp. 338 (E.D.Pa. 1988) . . . . . . . . . . . . . . . . . 32

xiii

Cited Authorities

Page

U.S. Constitution

U.S. Const. art. III, sec. 2, cl. 1 . . . . . . . . . . . . . . . . . . . 29

U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 20

U.S. Const. amend II . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 7

U.S. Const. amend V . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7

U.S. Const. amend XIV . . . . . . . . . . . . . . . . . . . . 1, 3, 7, 11

Statutes – Federal

Brady Handgun Violence Prevention Act, Pub. L.

103-159 (November 30, 1993), 107 Stat. 1536,

18 U.S.C. §§921-922, 925A . . . . . . . . . . . . . . . . . . . . . . 2

Firearms Owners’ Protection Act, Pub. L. 99308 (April 10, 1986), 100 Stat. 449, 18 U.S.C.

§§921, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22

Gun Control Act of 1968, Pub. L. No. 90-618 (October

22, 1968), 82 Stat. 1213-2, 18 U.S.C. Ch. 44 §§921,

et seq. (referred to as “Gun Control Act”) . . . . . . . . . 2

18 U.S.C. §923(d)(1)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C. §922(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

xiv

Cited Authorities

Page

18 U.S.C. §923(d)(1)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C. §923(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

18 U.S.C. §923(g)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 21, 24

18 U.S.C. §923(g)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 21, 24

18 U.S.C. §923(g)(1)(B)(iii) . . . . . . . . . . . . . . . . . . . . . . . . 23

18 U.S.C. §923(g)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

18 U.S.C. §926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23

28 U.S.C. §2101(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

42 U.S.C. §1985(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Regulations – Federal

27 CFR §478.122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

27 CFR §478.123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

27 CFR §478.124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

27 CFR §478.125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cited Authorities

Page

27 CFR §478.125(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

27 CFR §478.23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

28 CFR §25.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

28 CFR §25.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23

28 CFR §25.6(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

28 CFR §25.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26

28 CFR §25.11(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23

Statutes – State – New York

NY Exe §144-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

NY Exe §228(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

NY Exe §228(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

NY Exe §228(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

NY GCN §20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

NY Exec §837(23)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

NY Gen Bus §837(23)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

xvi

Cited Authorities

Page

NY Gen Bus §875 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

NY Gen Bus §875-b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

NY Gen Bus §875-b(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

NY Gen Bus §875-f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

NY Gen Bus §875-f(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

NY Gen Bus §875-g(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . 21

NY Gen Bus §875-i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

NY Pen §265.00(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NY Pen §265.01(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

NY Pen §265.20(3-a) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 27

NY Pen §265.65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27

NY Pen §265.66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27

NY Pen §270.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

NY Pen §400.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

NY Pen §400.00(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

xvii

Cited Authorities

Page

NY Pen §400.00(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

NY Pen §400.00(5)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

NY Pen §400.00(5)(e)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . 28

NY Pen §400.00(5)(e)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . 28

NY Pen §400.00(5)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

NY Pen §400.00(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27

NY Pen §400.00(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

NY Pen §400.00(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

NY Pen §400.00(16-a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

NY Pen §400.00(19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

NY Pen §400.02(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

NY Pen §400.03(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Other

Sup. Ct. R. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Sup. Ct. R. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

OPINIONS BELOW

The opinion of the Second Circuit Court of Appeals is

an unreported Order that is reproduced in the appendix

hereto (“App.”) at 59a-60a. The opinion of the District

Court of the North District of New York is unreported

and is reproduced at App. 1a and 2a–58a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. §2101(e).

Under Sup. Ct. R. 11, it can, any time before judgment,

deviate from normal appellate practice to review matters

of “such imperative public importance” as to justify

immediate determination in this Court. The District

Court text order denying Petitioners’ emergency motion

for preliminary injunctive relief issued December 2, 2022.

A delayed decision issued December 7, 2022.

STATUTORY PROVISIONS INVOLVED

Relevant constitutional and statutory provisions are

reprinted in the appendix. App. 61a–99a.

INTRODUCTION

This case challenges multiple, inter-connected

statutes arising out of new laws that impact some twenty

aspects of Petitioners’ individual rights under the

Second, Fifth, and Fourteenth Amendments, as well as

of their rights as federal and state licensees operating as

dealers in the lawful stream of commerce in firearms in

the U.S. The inventory of the offending statutes is laid

out in the Complaint [Doc 1, sec. IV, ¶¶27-32 (pp. 1419)]

and the “Emergency Motion” to the District Court [Doc

13]. Petitioners seek a preliminary injunction enjoining

Respondents from enforcing these laws.

STATEMENT OF THE CASE

GRANT OF A RULE 11 WRIT OF CERTIORARI

IS OF IMPERATIVE PUBLIC IMPORTANCE

FEDERAL FIREARMS LICENSEES IN NYS

AND NATIONWIDE ARE IMPACTED

The new laws directly impact Petitioners as eight

of the 1,782 Federal Firearms Licensees Type-01

(“FFLs”) and one of the nine Type-02 (“pawnbrokers”)

with business premises in New York.1 [Doc 16-6, p. 2]

Nationwide, there are 52,887 FFL-01s and 6,924 FFL02s, including Puerto Rico and the U.S. Virgin Islands.

[Id.] All operate under “federal firearms compliance law,”

arising largely out of the 1968 Gun Control Act (“GCA”)2 ,

the 1986 Firearm Owners Protection Act 3 (“FOPA”),

the 1994 Brady Handgun Violence Prevention Act,4 and

associated ATF regulations.

1. For simplicity of language, both the “dealer” and the

“pawnbroker” are referred to herein as “dealers.” The distinctions

at federal law are not relevant to this case.

2. Gun Control Act of 1968, Pub. L. No. 90-618 (October 22,

1968), 82 Stat. 1213-2, 18 U.S.C. Ch. 44 §§921, et seq.

3. Firearms Owners’ Protection Act, Pub. L. 99-308 (April

10, 1986), 100 Stat. 449, 18 U.S.C. §§921, et seq.

4. Brady Handgun Violence Prevention Act, Pub. L. 103-159

(November 30, 1993), 107 Stat. 1536, 18 U.S.C. §§921-922, 925A.

Petitioners, inter alia, engage in FFL-to-FFL

interstate transactions. [e.g., Mastrogiovanni, Doc 13-5,

¶¶15, 48-54; Seth Gazzola, Doc 13-3, ¶¶53-58] Routine,

inter-state commerce in firearms involves all FFL Types,

including, e.g., manufacturers (FFL Type-07) that supply

dealers. 5 From the GCA in 1968 until now, the ATF and

the FBI have occupied the field, with the few statutory

or regulatory exceptions open to states being theoretical

and largely unexplored.

There is a catastrophic legal cascade for Petitioners

for breaking the new laws, most of which came into effect

while the case has been pending. Albertson v. Subversive

Activities Control Board, 382 U.S. 70, 74 (1965). The

new laws target “dealers” only – no other businesses in

the state. Penalties include class A misdemeanor and/or

class E felony criminal charges, plus revocation of the

state-issued dealer license. NY Gen Bus §875-i; NY Pen

§400.00(11). The loss of the state license results in the loss

of the federal FFL license. 18 U.S.C. §923(e), read with

§923(d)(1)(F); see Doc 24-4, ATF Form 7, question 20(b) for

original application; Doc.App 19, ATF Form 8, questions

2 and 3 for renewals. A criminal conviction results in the

loss of the NYS individual concealed carry permit and of

Second Amendment rights. NY Pen §400.00(11); 18 U.S.C.

§922(g)(1); U.S. Const. amends II and XIV. The new laws

turn “an essentially noncriminal and regulatory area of

inquiry” into “an area permeated with criminal statutes.”

Haynes v. U.S., 390 U.S. 85, 99 (1967).

5. Several Petitioners have more than one type of federal

license, e.g., Seth Gazzola of Zero Tolerance Manufacturing, Inc.

has both an FFL Type-07 and an SOT Class 2 [Doc 13-2, ¶12;

Doc 13-3, ¶1314]

Petitioners have fixed business premise addresses on

file with NYS Police. Violations of the new laws are in plain

sight while their stores are open to the public, including to

their valued law enforcement customers, including NYSP

officers. [Nadine Gazzola, Doc 133, ¶¶38, 58]

Petitioners cannot renew their federal and/or state

licenses because they are no longer in compliance. The

first such federal license renewal among Petitioners is

Nadine & Seth Gazzola of “Zero Tolerance Manufacturing,

Inc.,” due February 2023, including responses to two

questions of state compliance. [DocApp 39, pp. 24-27; Seth

Gazzola, Doc 13-3, ¶23]

The new laws create massive financial impact to the

industry, mostly found at NY Gen Bus §875, et seq. [Doc

1, pp. 94-108] The NYS dealers’ industry impact could run

$400 million to $1.6 billion. [Doc 1, ¶184] The estimated

costs to individual Petitioners range from $200,000/year to

approaching $1 million/year. [Id., ¶183] Additional details

are available in each of their Declarations. The bill jackets

said “no financial impact.” That was false.

The strangest impediment to analysis and attempted

compliance is Respondent agencies failing (now 6-months

post-enactment) to produce 32 out of 34 regulations and

other publications delegated by the new laws to them.

[Doc 33-1]

B. All NYS Counties are also Impacted

The new laws also directly impact county issuance

of licenses for individuals and FFLs. “County,” as

used, includes county clerk’s offices, county licensing

officers, and county Sheriffs’ Departments. Although

the State defines basic individual and business licensing

requirements, counties implement them, with variations,

under home rule. [E.g., Nadine Gazzola, Doc 13-2, ¶27;

Serafini, Doc 13-4, ¶¶10, 23, 26] For example, the State

previously did not require handgun training,6 nor a semiautomatic rifle license, nor an ammunition background

check. Now, it does.

There is a parallel legal cascade of damages facing

Petitioners, as individuals, for personal license issues. It is

illegal in NY to own a “firearm”7 in the absence of a license.

NY Pen §265.00(3), §265.01(1). It is now impossible to apply

for or to renew a concealed carry license in the absence of

the new training, testing, and completion certificate. NY

Pen §400.00(1) and (19), read with NY Exec §837(23)(a) and

NY Pen §265.20(3-a). However, Respondent NYSP has

failed to issue the required materials. Id. [Doc 33-1, pp.

34; Cf. Doc 15-2, which Petitioners argue does not satisfy

statutory requirements.]

Petitioners cannot renew their concealed carry

licenses because they cannot complete the required

classroom and live-fire training, take the test, and present

the certificate of successful completion. The first such

6. Some Counties did require limited classroom training

towards a concealed carry permit application. [Hanusik, Doc

13-9, ¶27]

7. The definitions of “firearm” at federal and state law differ.

Herein, excepting this direct, statutory reference, the use of the

word “handgun” refers to that which requires a concealed carry

permit and “firearm” has its federal meaning to include all types

of firearms (shotgun, rifle, handgun).

Petitioner wanting to renew his concealed carry permit

is Michael Mastrogiovanni in January 2023.

Further, it is now illegal to purchase a semi-automatic

rifle without a license. NY Pen §400.00(2). No freestanding SAR license is available because Respondent

NYSP has failed to issue the format of the new SAR

license. NY Pen §400.00(7). [Doc 33-1, p. 2] Petitioners

are unable to apply for a proper, stand-alone SAR license,

even though they desire “to purchase additional semiautomatic rifles for personal self-defense and sporting

purposes.” [Martello, Doc 13-6, ¶11]

There is further criminal exposure for Petitioners, as

FFLs, if they sell a handgun or a semi-automatic firearm

to an individual lacking a valid license(s). NY Pen §265.65,

§265.66.

What once was a stable county-level system for

individual and business licenses has been thrown into

turmoil. More than twenty county legislatures passed

resolutions since July 1, 2022, condemning, at least, the

“Concealed Carry Improvements Act.” [Docs 173, 175]

Respondent Gov. Kathy Hochul, herself a former Erie

County Clerk, knew exactly where to place the charge

to blow up the statewide, county-level operating system.

[Martello, Doc 136, ¶¶9699]

Some counties stopped issuing new concealed carry

permits from September 1, 2022 through on or about

October 25, 2022. [E.g., Nadine Gazzola, Doc 132, ¶51]

Complicating matters, some counties resumed issuing

concealed carry licenses without waiting for the new

training and others decided to “approve instructors” to

teach courses those trainers created. [Serafini, Doc 134,

¶30; Doc 176, 178] Another variation is the “endorsement

to a concealed carry license.” [Martello, Doc 135, ¶¶55, 56]

Still others are saying they are “business as usual” until

they get further guidance from the state. [Owens, Doc

13-8, ¶71] And then there’s the “legacy permit.” [Serafini,

Doc 13-4, ¶31] Examples are found at Docs 174, 177, 179,

1710, and 1711.

Petitioners’ state dealers’ licenses cannot renew

because they are not in compliance with the new laws.

The first Petitioner requiring such renewal is Christopher

Martello in July 2023.

PROCEDURAL BACKGROUND

Petitioners filed a highly-detailed Complaint on

November 1, 2022, setting out causes of action under 42

U.S.C. §1983 and §1985(3) through the Second, Fifth,

and Fourteenth Amendments, also arguing federal preemption. [Doc 1] An “Emergency Motion” on the Record

for TRO/PI followed on November 8, 2022 [Doc 13],

including eight Petitioner affidavits [Doc 131 through 139]

and more than thirty curated exhibits [Doc 15, 16, 17, 24,

and all subparts]. A teleconference was held November 10,

2022. [ECF 11/10/2022] After an expedited, full briefing,

oral arguments were held December 1, 2022. Less than

24-hours later, via text order, the district court denied

the motion in its entirety (without the requested hearing).

[App 1a]

On December 2, 2022, Petitioners filed their “Notice

of Appeal” to the Second Circuit Court. [Doc.App 1]

An emergency motion for preliminary injunctive relief

followed on December 6, 2022. [Doc.App 12] A circuit

court three-judge panel denied the motion on December

21, 2022, writing only two (2) sentences, though claiming

to have “weighed the applicable factors.” [App 59a]

The circuit court scheduled an expedited, full briefing.

Petitioner’s brief is due January 25, 2022; the State March

1, 2023. [ECF.App 37]

The State submitted one memorandum to each court.

[Doc 29; Doc.App 26]. The State has submitted no (zero)

affidavits or exhibits, excepting four historic laws that

support Petitioners’ case. [Docs 29-2 through 29-5]

On Friday, December 30, 2022, Petitioners filed an

emergency motion under Sup. Ct. R. 22 and 23 to Justice

Sotomayor, requesting immediate injunctive relief and an

administrative stay.

THE PETITIONERS AND THEIR MANY ROLES

Petitioners’ rights are infringed in multiple capacities

by Respondents. Petitioners are dealers in firearms by

profession.8,9 Petitioners are Federal Firearms Licensees,

licensed first by the ATF. [Doc. 24-4, 19] Petitioners are

8. N.B.: Federal law defines the FFL-01 license as covering

both the retail and the gunsmith functions. NYS requires two

separate licenses – the “dealer” license and the “gunsmith” license

to achieve the same permissions. The federal definition of “dealer”

differs from NYS in other aspects not relevant to this case.

9. N.B.: A federal license is not required to be a dealer

of ammunition, nor is there a federal background check for the

purchase of ammunition. The State does not require NYS-licensed

dealers to obtain a “dealer of ammunition” license.

ATF “Responsible Persons”10 for the businesses they

own and operate. New York requires a concurrent state

license as a “dealer,” a requirement allowed by federal

law. 18 U.S.C. §923(d)(1)(E). Plaintiffs receive their state

licenses through their local County Clerk’s Office. See,

Nadine & Seth Gazzola [11Doc 13-2 & 13-3, ¶11-12, ¶15];

Craig Serafini [Doc 134, ¶6, 7]; Michael Mastrogiovanni

[Doc 13-5, ¶9]; Christopher Martello [Doc 13-6, ¶1314,

15-16]; Nicholas Affronti [Doc 13-7, ¶5, 7]; Robert Owens

[Doc 13-8, ¶16]; and, John A. Hanusik [Doc 13-9, ¶15, 17].

Petitioners are business owners in the form of sole

proprietorships, single-member LLCs, and corporations.

Petitioners work at their businesses. [Nadine Gazzola, Doc

132, ¶5; Serafini, Doc 134, ¶5; Mastrogiovanni, Doc 135,

¶5; Martello, Doc 13-6, ¶5; Owens, Doc 138, ¶5; Hanusik,

Doc 139, ¶5.]

Petitioners, as individuals, have unrestricted NYS

concealed carry permits. [Nadine Gazzola, Doc 132,

¶17; Seth Gazzola, Doc 13-3, ¶8; Serafini, Doc 13-4, ¶9;

Mastrogiovanni, Doc 135, ¶7; Martello, Doc 13-6, ¶9;

Affronti, Doc 13-7, ¶10; Owens, Doc 13-8, ¶10; Hanusik,

Doc 13-9, ¶9.

10. “Responsible Person” is defined by BATFE on Form 7,

“Definitions,” as “In addition to a Sole Proprietor, a Responsible

Person is, in the case of a Corporation, Partnership, or Association,

any individual possessing, directly or indirectly, the power to

direct or cause the direction of the management, policies, and

practices of the Corporation, Partnership, or Association, insofar

as they pertain to firearms.”

11. “Doc” is used to refer to district court documents of this

case. “Doc.App” is used to refer to circuit court documents in

this case. “Dkt” is used to refer to any other case docket entry

or document, along with the court designation and case number.

Petitioners Nadine and Seth Gazzola are paid firearms

instructors. [Doc 13-2, ¶¶47-48; Doc 13-3, ¶¶25-39] Some

Petitioners benefit from sales to handgun permittees

following courses by third-party instructors. [See, e.g.,

Serafini, Doc 13-4, ¶¶23-32.]

Petitioners, as individuals, are also consumers, and

personally own firearms and ammunition. [Nadine

Gazzola, Doc 13-2, ¶18; Seth Gazzola, Doc 13-3, ¶8;

Serafini, Doc 13-4, ¶9; Mastrogiovanni, Doc 135, ¶7;

Martello, Doc 13-6, ¶9-10; Affronti, Doc 13-7, ¶9; Owens,

Doc 13-8, ¶9-10; Hanusik, Doc 13-9, ¶¶6, 9.]

Until December 5, 2022, Petitioners were in compliance

with all federal and state laws governing their personal

and professional licenses. On that day, most of the laws

complained of came into effect12 and Petitioners went out

of compliance. As expressed by Petitioner Robert Owens:

“The new laws are much worse than the “SAFE

Act.” For nine years, I have been able to work

within the confines of the ATF mandates and

the “SAFE Act.” I could stay in the middle of

that and do everything in accordance with the

law. I am operating legally.

“Now, I can’t comply. It’s literally impossible.

It’s also unconstitutional.” Doc 138, ¶¶67-68.

12. Pursuant to NY GCN §20, laws that would otherwise

become effective on a Saturday or Sunday become effective the

following Monday. Any use of a “December 3” effective date for

NY S.4970 by the lower courts or Counsel is in error.

With the advent of NYSRPA v. Bruen, Petitioners

should be enjoying equal federal and state Second

Amendment rights in every sense of the Fourteenth

Amendment, which promises: “All persons born or

naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and

of the State wherein they reside.” U.S. Const amend XIV.

Instead, the Petitioners feel as if they are “…a highly

selective group inherently suspect of criminal activities.”

Albertson, supra, at 79.

THE RESPONDENTS

As laid-out in the Complaint (pp. 38-54), Respondent

Gov. Hochul designed the new laws with help from

CoRespondents while “joined at the hip” with lawyers

she named from Every Town for Gun Safety and Giffords

Law Center, as well as other outside “experts.” [Doc 1,

pp. 38-54, see ¶91] She repeatedly publicized her fury,

particularly about this Court’s June 23, 2022 ruling in

NYSRPA v. Bruen, touting her superiority as a state

governor and vowing revenge, including:

“And I thank the State Police for being so

aggressive in their approach in making sure

that we protect citizens, but then you have the

Supreme Court of the United States of America

that think that they have more power than a

governor does when it comes to protecting the

citizens of our state.” (emphasis added) [Doc

1, ¶105]

Highlighting, another example, by June 29, 2022,

Respondent Gov. Hochul attacked the six Justices in the

majority vote:

“The Supreme Court decision was a setback

for us, but I would call it a temporary setback,

because we are going to marshal the resources,

the intellect, we’ve been talking to leaders in

this industry, and academics and people in

think tanks to find out what we can do legally,

constitutionally, to make sure that we do not

surrender my right as Governor, or our rights

as New Yorkers to protect ourselves from gun

violence.” [Id., at ¶108]

This, and numerous other quotes laid out in the Complaint

say it all.

Respondent agencies’ responsibilities should have

been completed by the September 1st and December 5th

effective dates. Petitioners’ chart at Doc 33-1 is a 6-page,

itemized list of the unfulfilled duties. Respondent agencies

have failed to perform 32 of the 34 responsibilities under

the new laws. That’s a 94% failure rate. Petitioners urge

the Court to review this chart. [Doc 331]

On December 5, 2022, the authority for Respondent

agencies to perform these functions expired for the

primary bill complained of:

NY S.4970-A, §5: “Effective immediately, the

addition, amendment and/or repeal of any rule

or regulation necessary for the implementation

of this act on its effective date are authorized

to be made and completed on or before such

effective date.” Doc 1-1, p. 7.

Most of the new laws are missing vital information

that should have been published by Respondents. Taking

but one example from the list:

NY Exe §144-a says in sentence one “…shall

promulgate rules and regulations to establish

criteria for eligible professions requiring the

use of a body vest…” (emphasis added)

And, in sentence three, that such rules and

regulations “…shall also include a process by

which an individual or entity may request that

the profession in which they engage be added

to the list of eligible professions, a process by

which they engage be added to the list of eligible

professions, a process by which the department

shall approve such professions, and a process

by which individuals and entities may present

proof of engagement in eligible professions

when purchasing the body vest.” (emphasis

added)

Respondents met none of these requirements. The entire

provision is meaningless. Any sale of a body vest is thus

illegal. NY Pen §270.22. Petitioner Nick Affronti can no

longer sell body vests because “…the new laws are too

vague to interpret and because the [Respondents] have

failed to fulfill their responsibilities under the law on

point.” [Doc 137, ¶24] This is but one example.

This Court may want to refresh on NYSRPA v. NYC,

590 U.S. _____, p. 21 (2020, Alito, J., dissenting), wherein

NY City “fought petitioners tooth and nail in the District

Court and the Court of Appeals, insisting that its old

ordinance served important public safety purposes” only

to amend the law and admit it was “not needed for public

safety” as soon as this Court granted certiorari.

Respondent NYS Police, in sharp comparison to the

ATF, neither invests time or resources on NY-licensed

dealers. Respondents have full contact information for

Petitioners. [Owens, Doc 13-8, ¶69] Petitioners received

no notification of the new laws. [Nadine Gazzola, Doc

13-2, ¶40; Serafini, Doc 13-4, ¶67; Owens, Doc 13-8, ¶69]

Petitioners were rebuffed with “I don’t know,” when they

called the NYSP for information. [Mastrogiovanni, Dkt.

13-5, ¶¶36, 38] As per Petitioner John A. Hanusik wrote:

“I spent a couple weeks at the NYS Police in August and

they told me I know more about what’s going on than they

do; they have no idea what’s going on.” [Doc 139, ¶17]

REASONS FOR GRANTING THE PETITION

PETITIONERS’ NOVEL THEORIES HAVE

A LIKELIHOOD OF SUCCESS TO SUPPORT

A GRANTING PRELIMINARY INJUNCTIVE

RELIEF

DEFINING “TO KEEP” WILL GIVE THE

FFL DEALER SECOND AMENDMENT

PROTECTION EQUAL TO THE INDIVIDUAL

To achieve preliminary injunctive relief, Petitioners

must, inter alia, meet the “likelihood of success” factor of

the Winter test. The traditional Winter test gives a false

negative when lower courts don’t recognize that watershed

or novel claims can have a “likelihood” of success, like the

ones herein. Winter v. Nat’l Resources Def. Council, 555

U.S. 7 (2008).

The Second Amendment is the modern civil rights

movement. The field was born in 2008 out of District of

Columbia v. Heller, 554 U.S. 570. It is in an early stage

of interpretation.

This case, as a result, may face “serious challenges but

also present some opportunities.” Whole Woman’s Health

v. Jackson, 594 U.S. _____, p. 17 (2021) “Opportunities,”

including for a novel remedy as a direct result of the

novelty of the scheme by a state to deprive individuals of

their civil rights. Id. at 2496 (Roberts, C.J., dissenting).

THE DEFINITION OF “TO K EEP”

UNDER THE SECOND AMENDMENT

The first novel theory of this case is laid out across

ten pages of the Complaint. [Doc 1, pp. 20-30] This

case is the organic progression of the trilogy of HellerMcDonald-NYSRPA v. Bruen. Petitioners are the “to

keep” of “to keep and bear arms.” U.S. Const. amend.

II. The operative clause contains a joinder of two verbs;

both should be equally used in constitutional analysis.

The FFL in the lawful stream of commerce in firearms

is inextricably inter-woven with fundamental individual

rights.

Thus far, this Court has defined “to bear” as the

right to “wear, bear, or carry…upon the person or in the

clothing or in a pocket…” NYSRPA v. Bruen, supra, at

23, citing Heller, supra, at 592. Expressing also that “to

bear” “naturally encompasses public carry” because “[t]o

confine the right to “bear” arms to the home would nullify

half of the Second Amendment’s operative protections.”

NYSRPA v. Bruen, supra, at 24. Similarly, this Court

found “in common use” as “lawful weapons that they [ablebodied men] possessed at home” to bring along to militia

duty. Heller, supra, at 624 and 627 (emphasis added).

There appears an obiter dicta consensus among the

Justices of this Court that “to keep” meant, historically,

dating back to the British Crown, that the individual

“right to “have arms” in private ownership, must, at

least, be protected “should the sovereign usurp the laws,

liberties, estates, and Protestant religion of the nation.”

NYSRPA v. Bruen, supra at 27, Breyer, J., dissenting.

Indeed, the historic New York laws required ablebodied men to report for militia training, bearing their

own privately-owned arms and ammunition. [Doc 292, p. 2, New York (1780), Sec. I (“That every person so

enrolled, and notified, shall within twenty days thereafter,

furnish and provide himself, at his own expense, with a

good musket or firelock…” and “…not less than sixteen

cartridges, suited to the bore of the musket or firelock…”

(emphasis added)); Doc 29-3, p. 1, New York (1792), Sec. 1;

and, Doc 29-4, p. 2, New York (1782), Sec. I.]

In short, firearms and ammunition ’twere not

furnished by the State; they were privately purchased

and owned by individuals. The Second Amendment has

no operational meaning without sellers of firearms, like

Petitioners.

Throughout Heller – McDonald – NYSRPA v. Bruen,

this Court did not have jurisdiction to rule upon the

“to keep,” the from whence the militiaman came into

possession of a firearm, or, whether a firearms dealer

stands on an equal constitutional footing as the individual

while making a purchase. This case is that opportunity.

The firearm is the only object required to exercise a

civil right in the Bill of Rights. This has yet to be formally

recognized. In 2022, very few hands forge a firearm from

iron ore. Some, like Petitioner Mike Mastrogiovanni, a

competition shooter, do reload ammunition [Doc 13-5,

¶¶22-23], but even reloaders do not make their own arms

from metals and forge. In 2022, the exercise of the Second

Amendment depends upon the skill of the individual to use

a credit card at a retail dealer in firearms.

Not one person in federal, state, or county government

is the conduit for the individual seeking to purchase a

firearm to exercise their Second Amendment rights. The

FFL is the only lawful facilitator. The dealer in firearms

is the indispensable extension of the individual for the

procurement of the firearm, and dealers must be protected

with as much rigor.

Informative are a small group of War Years cases

that includes Steelworkers v. U.S., 361 U.S. 39 (1959). The

cases interpreted the statutory phrase “will imperil the

national health or safety” relative to critical industries.

The court explained:

“But a court is not qualified to devise schemes

for the conduct of an industry so as to assure the

securing of necessary defense materials. It is

not competent to sit in judgment on the existing

distribution of factors in the conduct of an

integrated industry to ascertain whether it can

be segmented with a view to its reorganization

for the supply exclusively, or even primarily,

of government-needed materials. Nor is it

able to readjust or adequately to reweigh the

forces of economic competition within the

industry or to appraise the relevance of such

forces in carrying out a defense program for

the Government.” Supra, at 50-51.

The State earlier proposed “Walmart or Runnings” would

suffice for New Yorkers’ Second Amendment needs. [Doc

29, p. 16] Is the Court going to have us brief that the

current ATF database13 shows 47 Walmart locations plus

10 Runnings stores with FFL-01 licenses – statewide –

and contemplate whether such would adequately meet

the Second Amendment needs of all New Yorkers?

The wisdom and applicability of Steelworkers suggest

otherwise.

“CONSTITUTIONAL REGULATORY

OV E R BU R D E N ” D E F I N E S T H E

B R E A K P O I N T A G A I N S T L AW S

DESIGNED TO OR RESULTING IN FFL

INABILITY TO MEET COMPLIANCE

DEMANDS

“Constitutional regulatory overburden” is a novel

way to capture the Laffer Curve of a firearms dealer.

The new laws, taken as a whole, define the point at which

Petitioners asked, “Why would I continue to turn the

key and flip on the lights?” The new laws are so onerous

as to deincentivize the dealer, including Petitioners, to

continue to perform commercial functions necessary to

give life to and to protect individual rights under the

Second Amendment.

13. https://www.atf.gov/firearms/listing-federal-firearmslicensees.

Petitioners urge the Court to review their presentation

of each new law in this subgroup with cost estimates,

technical problems, and structural restrictions in the

Complaint [Doc 1, pp. 94-105], as well as for their individual

situations in their Declarations where each Petitioner took

a lead on one or more of the statutes.

For example, Petitioner Christopher Martello took

lead on the technologically infeasible video recording

devices and storage mandate under NY Gen Bus §875b(2) in Doc 13-6, ¶¶8088. Among his credentials is the

“Ikkin Industries” full line of “state-of-the-art police

evidence body cameras.” [Id., ¶81] His affidavit walks

through an analysis: number of 16 Terabyte drives

required for the now facility-required camera positions,

cost per drive, additional hardware requirements, and

installation. [Id., ¶86] This allowed other Petitioners to

generate estimates. [Declarations, passim] And that

allowed FFL-wide projections for the Complaint. [Doc 1,

¶¶253-261] No Petitioner is in compliance. Petition word

limits do not allow a repeat of each statute, already set

out in the Record.

Please note: Petitioners also argue an alternative

theory that the new dealer laws must be struck under

Void-for-Vagueness. It is literally impossible to comply

with any and every new law awaiting Respondent agency

action. The resultant text will result in arbitrary arrests.

B. FEDERAL PRE-EMPTION PROHIBITS

ANY FORM OF A GUN OWNERS’ REGISTRY

OR ABUSE OF FEDERA L FIREARMS

COMPLIANCE TOOLS

Petitioners seek validation also for their pre-emption

claim, which represents the first time the federal-state

balance in the field of firearms compliance law is being

severely tested. [Doc 1, ¶¶54-63] The Supremacy Clause

“invalidates state laws that interfere with, or are contrary

to federal law.” U.S. Const. art. VI, cl. 2.

Congress deemed the FFL as the guardian of

the firearms transaction and inventory records14 that

they create. Petitioners’ federal firearms compliance

records are written by hand in carefully choreographed

communication with the customer and the ATF in accord

with federal law, regulation, and guidance documents too

lengthy to set forth, herein. See, e.g., 18 U.S.C. §926, 28

CFR §25.6(a), 28 CFR §25.11(b) The most valuable of these

records are the ATF Form 4473 [Doc 241] and the Book of

Acquisitions & Dispositions (“A&D Book”). “Even when

the ATF runs a background check, it gets only so much

information from me, the dealer, and that information has

to be purged from their system in specified time periods,

dependent upon the results of the records search.” Owens,

Doc 13-8, ¶35; 28 CFR §25.9.

Respondents now demand under NY Gen Bus §875f that dealers semi-annually turn over copies of their

14. “Records” for purposes of federal firearms compliance

are defined under statutes and regulations like 18 U.S.C. §923(g)

(2), 27 CFR §478.125(e), and 27 CFR §478.124.

federal firearms compliance records, including the make,

model, serial number, caliber of firearm, and who sold or

collateralized the firearm, and who bought or collected

back the firearm.

Even threatened with the legal cascade of penalties

(above), Petitioners will not give their federal firearms

compliance records to Respondent NYSP, nor will they

create duplicitous (shadow) books15 to help Respondents

avoid federal pre-emption court orders and/or federal

penalty. Petitioners will thus be unable to sign compliance

statements at NY Gen Bus §875g(1)(b) and federal and

state renewal applications. [Declarations, passim; see,

e.g., Fifth Amendment claims by Nadine Gazzola, Doc

13-2, ¶38; Seth Gazzola, Doc 13-3, ¶22; Serafini, Doc 134,

¶50; Mastrogiovanni, Doc 135, ¶35; Martello, Doc 136, ¶40;

Affronti, Doc 137, ¶53; and Owens, Doc 138, ¶31]

“To ask, in these circumstances, that petitioners

await such a prosecution for an adjudication of their selfincrimination claims is, in effect, to contend that they

should be denied the protection of the Fifth Amendment

privilege…” Albertson, supra, at 76. “The hazards of

incrimination created by the registration requirement

can thus only be termed “real and appreciable.” Haynes,

supra, at 97.

The federal acts can be described as a “covenant”

between the federal government and those who defend

15. The new law directs creation of “record of purchase, sale,

inventory,” which is the federal A&D Book described at 27 CFR

§478.125(e) and illustrated at corresponding “Table 4: Firearms

Acquisition and Disposition Record.”

and exercise Second Amendment rights. In the words of

Petitioner Michael Mastrogiovanni:

“I remember when the 1968 Gun Control Act

was passed and when the 1996 Brady Law was

passed. The Brady Act is what ushered in the

NICS background check system. Congress gave

the ATF five years to design, test, and launch

the NICS background check system, including

security protocols, speed requirements, and

records development for the ATF and the

Licensees, as well as the ATF record retention

and destruction policies. Congress was clear,

through any Member interviewed on TV and

in the news: no government registry would be

created through the records, of any kind, on any

level; the dealers would retain the originals.”

[Doc 13-5, ¶39]

Section 101 of the Firearm Owners Protection Act

reflected that sacred commitment:

“No such rule or regulation prescribed after

the date of the enactment of the Firearm

Owners’ Protection Act may require that

records required to be maintained under this

chapter or any portion of the contents of such

records, be recorded at or transferred to a

facility owned, managed, or controlled by the

United States or any State or any political

subdivision thereof, nor that any system of

registration of firearms, firearms owners,

or firearms transactions or dispositions be

established.” (emphasis added)

[Doc. 1, ¶¶65-66 and 133b, pp. 27-30]

When intention is clear, the court must “give effect

to the unambiguously expressed intent of Congress.”

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-843 (1984). Industries

that “[safeguard] the comprehensive interest of the

community” and promote national policies “must be

construed to give full effect to the protections they seek

to afford.” Steelworkers, supra, at 54 (Frankfurter and

Harlan, concurring).

Respondents demand what even the U.S. Attorney

General cannot have. The U.S. Attorney General or an

ATF officer may only access the ATF Form 4473 and the

A&D Book in two specific circumstances: (1.) pursuant

to a warrant in a criminal investigation of a person other

than the licensee; and, (2.) upon visual inspection during a

routine inventory reconciliation compliance check, where

if any pages be copied by BATFE, the pages must also be

furnished to the FFL for their records. 18 U.S.C. §923(g)

(1)(B) and 27 CFR §478.23. See, also, 18 U.S.C. §923(g)(1)

(A) and 27 CFR §478.23; and 18 U.S.C. §923(g)(1)(B)(iii).

There are penalties for the misuse of the NICS

background check system. Federal, state, and municipal

governments can be fined $10,000 and lose NICS inquiry

privileges. 18 U.S.C. §923(g), 18 U.S.C. §926, 28 CFR

§25.6, and 28 CFR §25.11(b). This clearly prohibits the

new law seeking use of NICS for a new ammunition

background check. NY Pen §400.02(2).

The new law at NY Gen Bus §875-f(3) creates power

to force access to dealer records “at any time” by “law

enforcement agencies and to the manufacturer of the

weapon or its designee.” This new law collides with Due

Process afforded Petitioner FFLs under the restricted

right of access by the U.S. Attorney General or the ATF

officer under 18 U.S.C. §923(g)(1)(A)-(B) and 27 CFR

§478.23 (entry and review of records conditioned upon a

federal judicial warrant or a statutorily proscribed audit

process).

It is unprecedented for a third-party, non-governmental

entity to access Petitioners’ federal firearms compliance

records – not even an FFL- 07 (assuming that is

what is meant by Respondents’ bald use of the words

“manufacturer of the weapon”). The language is vague,

but it suggests the State wants to turn manufacturers

into agents of the State.

The FFL-ATF system has been working “beautifully”

“for decades.” [Mastrogiovanni, Doc 13-5, ¶¶40, 46]

Petitioners unanimously support the federal compliance

system, their relationships with their ATF Field Agents,

specifically, and the ATF, generally, and their limited

contact with the FBI for firearms trace. [See, e.g., Nadine

Gazzola, Doc 13-2, ¶39, 39a, 39b; Serafini, Doc 13-4, ¶7071; Mastrogiovanni, Doc 13-5, ¶¶39, 46; Affronti, Doc

13-7, ¶¶26, 82]

It is in the public interest for the 1,800 men and women

like Petitioners to “…stay in business,” as described by

Petitioner Robert Owens:

“What you get from that distribution of momand-pop shops is both solid supply for the

citizens of North Country and, also, men and

women on the ground who know the people in

their communities and who are dedicated to

preventing an illegal sale. You can characterize

that as “working for” the ATF/FBI, or you can

think of it as having the ATF/FBI on call to help

us prevent crime in our communities. Either

way, you do not want to drive the entire industry

of firearms dealers out of business. It’s contrary

to public safety and it’s an unconstitutional

outcome.” [Doc 138, ¶¶41 and 78]

The new laws permit Respondents to merge the federal

compliance records into new NYSP “databases” under the

thin disguise of becoming a “NICS Point-of-Contact”

state. NY Exec §228(3), §228(4). The new Executive Law

§228(3) empowers NYSP to create “Orwellian” mergers

with records from other state agencies, including, but not

limited to “office of court administration” and “department

of public health.” [Martello, Doc 136, ¶73] The power

is unlimited for “such additional databases as needed.”

Concealed carry licenses for handgun, SAR licenses,

and ammunition background checks will come under the

discretion of the NYS Police with administrative appeal

limited to the NYS Attorney General. NY Exec §228(8).

The new laws contain no records security protocols,

access, retention parameters, or destruction definitions

– all of which were set out for the ATF/FBI through the

Brady Act, right down to the physical street location

where the data is housed. 28 CFR §25.3. See, generally,

Title 28 CFR; Affronti, Doc 13-7, ¶¶43-54. Federal law

covers the first firearms background check record at a

new FFL through disposition of records upon an FFL

going out of business, all of which is done side-by-side

with the ATF due to the “technical difficult of start-ups

and shutdowns.” Steelworkers, supra, at 49 [See, e.g., 28

CFR §25.9; Mastrogiovanni, Doc 13-5, ¶47]

Respondents know so little about federal firearms law

as to plop a random phrase in NY Gen Bus §875-b to allow

dealers to make up individual shipping protocols. This

will result in disruption of established, well-regulated,

federal shipping mandates. Federal law must pre-empt

to preserve a uniform system for FFL-to-FFL shipments,

including loss/theft in shipment protocols. 27 CFR

§§§478.122, 478.123, and 478.125. [See detailed discussion

in Mastrogiovanni, Doc 135, ¶15, ¶¶48-54; Serafini, Doc

13-4, ¶¶76-81; and Seth Gazzola, Doc 13-3, ¶¶51-58.]

NYSRPA V BRUEN EXTENDS AGAINST

SCHEMES (A.) TO BLOCK CONCEALED

CA RRY PERMITS; (B.) TO REQUIRE

SEMI-AUTOMATIC RIFLE LICENSES;

AND, (C.) TO REQUIRE AMMUNITION

BACKGROUND CHECKS

The laws from NY S.51001, the “Concealed Carry

Improvements Act,” complained of should not even have

been drafted in light of NYSRPA v. Bruen. “[W]hen the

Second Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects that

conduct.” NYSRPA v. Bruen, supra, at 8. A government

must then demonstrate that a firearms regulation “…is

consistent with this nation’s historical tradition of firearm

regulation.” Id., at 2126, 2130-2131. Unfortunately,

Respondent Gov. Hochul has “…employed an array of

stratagems designed to shield its unconstitutional law

from judicial review.” Whole Woman’s Health, supra, at

p. 1 (Roberts, C.J., dissenting).

Respondents circuitously created w idespread

confusion to the point of effective stoppage of three

individual Second Amendment rights:

A. Concealed carry permits: NYSP/DCJS failed to

publish the standardized curriculum, test, and

certification under NY Exe §837(23)(a) and NY

Pen §265.20(3-a). No course has been available

since September 1, 2022. No certificate of

completion? No new permit or renewal. NY Pen

§400.00(1) and (19).

B. Second, the State jammed purchases of semiautomatic rifles – an entire class of commonlyused firearms – by requiring a new (no historic

analogue) SAR license and then failing to release

the format for the new license required by NY

Pen §400.00(7). No SAR license? No purchase

by individual. No sale by dealer. NY Pen §265.65

and §265.66.

C. Third, the State is fumbling via N Y Pen

§40 0.0 3(6) towa rds its thi rd effor t at an

ammunition background check (no historic

analogue) through an illegal approach via NICS

and otherwise mandating dealers write down

customer information on a blank piece of paper

because they didn’t issue the “form.”

On the matter of Petitioners’ individual standing,

the State below misrepresented “And [Petitioners] need

not undergo training to maintain their [concealed carry]

licenses.” [Doc.App 26, at 23 and 33] Counsel referred to

a NYSP/DCJS memo. [Doc 26; Doc.App 15-3, August 27,

2022] Memo “Q&A” 8-11 spout a fiction of “renew” versus

“recertify” that is unsupported by law. NY Pen §400.00

does not define these words. “Renew” is used in its plain

meaning some 39 times in the statute. “Recertify” is used

three (3) times, twice in the context of §400.00(16-a) to

“recertify” registration of an “assault weapon” and once

in §400.00(10) for “recertification” of “all” carry/possess

permits. “Recertification” is used another four (4) times,

for privacy of permit records at §400.00(5)(c), (e)(ii)-(iii),

(f). For “to renew” to apply only to NYC, Westchester,

Nassau, and Suffolk Counties would eliminate eligibility

for a permit to be “issued or renewed” to the whole rest of

the State under NY Pen §400.00(1), et seq. Clearly: false.

There is no historic analogue for a semi-automatic rifle

license or an ammunition background check. Militiamen

were to appear with their private arms and ammunition

when called up for duty. The State failed to provide

historic analogue to defend these new laws.

Alternatively, Petitioners argue that if there is to

be an SAR license, Respondents failed the launch and

created, in effect, an effective ban. After Petitioners filed

their Emergency Motion to the circuit court on December

6, 2022, NYSP added a “Resources for Gun Dealers” to

their public website and circulated a 4-page “memo.” [Doc.

App 19-2 and 19-3] It contained the admission that the

SAR license is required to be a stand-alone license; not

an endorsement upon a concealed carry license. [Doc.App

19-1 includes this and other examples]

II. WINTER ANALYSIS, USING THESE CLAIMS,

RESULTS IN A GRANTING OF MUCH-NEEDED

PRELIMINARY INJUNCTIVE RELIEF

The Winter analysis is decidedly more functional when

one agrees the novel theories, pre-emption, and application

of NYSRPA v. Bruen have a likelihood of success. Here

are the other Winter factors.

AT L E A S T O N E PE T I T IO N E R H A S

STANDING

AS TO CASES AND CONTROVERSIES.

To recap, Petitioners have multi-faceted standing

as individuals, concealed carry permit holders, state

licensees, federal licensees, “Responsible Persons” to

BATFE, and business owner-operators. Their standing

creates judicial economy to evaluate and rule upon three

groups of inter-connected laws. Petitioners are perfectly

positioned to present the issue of just “how” does the

individual get “to keep” arms, to testify on federal

firearms compliance law, discuss systemic problems with

new laws at the county level, and more.

“[T]he presence of one party with standing is sufficient

to satisfy Article III’s case-or-controversy requirement.”

U.S. Const., art. III, sec. 2, cl. 1; Rumsfeld v. Forum for

Acad. & Instit. Rights, Inc., 547 U.S. 47, 52 n.2 (2006);

Centro de al Comunidad Hispania de Locust Valley v.

Town of Oyster Bay, 868 F.2d 104, 109 (2d Cir. 2017).

This case is as the earliest possible stage: complaint

plus motion for preliminary injunctive relief. There is no

cross-motion by the State. Petitioners’ burden of proof on

standing is least when the case is at the pleading stage.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

A S T O FAC I N G “ T H R E AT E N E D

ENFORCEMENT OF A LAW”

On August 31, 2022, Nadine Gazzola heard the threat:

“When I listened to Governor Hochul or NYS Police

Superintendent Bruen or (now) Acting Superintendent

Nigrelli threaten that there will be “zero tolerance,”16

you might imagine that it caught my ear.” [Doc 13-2, ¶36]

All Petitioners are conscious of being in circumstances

vulnerable to arrest. [Declarations, passim]

In two other cases, Respondent Nigrelli’s public

threats of enforcement were sufficient to establish

standing by way of threat of credible enforcement for

purposes of preliminary injunctive relief. Antonyuk v.

Nigrelli (“Antonyuk II”17), 1:22-cv-986, Dkt. 78, p. 31 (on

appeal), writing “…Defendant Nigrelli has been shown

to have threatened a “zero tolerance” enforcement of the

CCIA.” See, also, Christian v. Nigrelli, on November

22, 2022 (on appeal) and Hardaway v. Nigrelli, Case no.

1:22-cv-771, November 3, 2022, Doc. no. 52 (also on appeal).

16 . YouT ube Cha n nel of G over nor K at hy Hochu l,

“Governor Hochul Delivers a Press Conference on Gun Violence

Prevention” (August 31, 2022), at https://www.youtube.com/

watch?v=gC1L2rrztQs.

17. Antonyuk v. Bruen (“Antonyuk I”), Case no. 1:22-cv-734,

dismissed August 31, 2022.

Petitioners satisfy the injury-in-fact requirement.

They are facing the “threatened enforcement of a law”

that is “sufficiently imminent.” Susan B. Anthony List,

573 U.S. 149 158159 (2014). Petitioners allege “an intention

to engage in a course of conduct arguably affected with

a constitutional interest, but proscribed by a statute, and

there exists a credible threat of prosecution thereunder.”

Id. at 159, quoting Babbitt v. United Farm Workers Nat’l

Union, 442 U.S. 289, 298 (1979). Petitioners need not be

charged before bringing challenge to the constitutionality

of a law “threatened to be enforced.” MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 128-129 (2007).

Petitioners “…should not be required to await and

undergo a criminal prosecution as the sole means of

seeking relief.” Babbitt, supra, at 298. Cayuga Nation

v. Tanner informs the point. The case “sets a low

threshold and is quite forgiving to plaintiffs seeking such

preenforcement review, as courts are generally ‘willing to

presume that the government will enforce the law as long

as the relevant statute is recent and not moribund.’” 824

F.3d 321, 331 (2d Cir. 2016). See, also, Picard v. Magliano,

42 F.4th 89, 98 (2d Cir. 2022).

AS TO INJURIES, AND WHICH ARE

ON-GOING

Petitioners set out preliminary injuries in their

Declarations of early November 2022 that are on-going.

Petitioners also plausibly alleged that the new laws have

already had multiple direct effects on their day-to-day

operations, and they have identified key provisions of the

new laws that “appear to impose a duty on the licensingofficial defendants to bring disciplinary actions against

them if they violate [the new laws].”

That some damages are capable of computation does

not capture all they are suffering. For John A. Hanusik,

in business upwards of fifty years [Doc 13-9, ¶¶6, 30],

he will suffer an injury that “[could] never accurately

be ascertained or compensated by money damages.”

Dominion Bankshares Corp. v. Devon Holding Co., 690

F.Supp. 338, 348 (E.D.Pa. 1988). For Nicholas Affronti,

his small business, one of the last pawn shops in the entire

state, “…is my dream.” [Doc 13-7, ¶87] A monetary award

will not adequately compensate these Plaintiffs. Wisdom

Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 113

(2d Cir. 2003).

B. RESPONDENTS ARE PROPERLY BEFORE

THIS COURT, IF THE RULE OF LAW IS TO

PREVAIL

Petitioners devoted 15-pages of their Complaint to

detail the animus unleashed by Respondent Gov. Hochul,

her Co-Respondents, and third parties to make out prima

facie claims under 42 U.S.C. §1983 and §1985(3). [Doc 1, pp.

38-54] Respondents’ discrimination against Petitioners

is an on-going constitutional violation. State Employees

Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d

Cir. 2007); In re Deposit Ins. Agency, 482 F.3d 612, 617

(2d Cir. 2007).

Respondents are otherwise properly before this Court

under an exception to sovereign immunity set forth in Ex

parte Young, 209 U.S. 123 (1908), recently affirmed, that

“allows certain private parties to seek judicial orders in

federal court preventing state executive officials from

enforcing state laws that are contrary to federal law.”

Whole Woman’s Health, supra, at p. 5, citing Young, at

159-160.

Hochul’s scheme was masterminded with various

persons external to state government, including attorneys

she publicly named from Every Town for Gun Safety and

Gifford Law Center, in order to deprive Petitioners of their

rights. [Doc 1, ¶¶37, 91, 91 n.54, 319] Hochul’s official Press

Releases, appearance transcripts, and videos continue to

be published through the state’s governor’s office website.

Please take a moment to study the source for the many

quotations defining “animus.” [Doc 1, pp. 38-54]

Respondent Gov. Hochul’s “leadership” on matters of

the Second Amendment mimics Alabama Governor Orval

Faubus in 1957 (“…I was not elected Governor of Arkansas

to surrender all our rights as citizens to an all-powerful

federal authority.”) Faubus’ speech was the foreshadow

to the anti-integration showdown in Little Rock.

PETITIONERS ARE LIKELY TO SUCCEED

ON THE MERITS AGAINST THE NEW

LAWS

(This argument is laid out above, and requires no

reiteration.)

T H E BA L A NC E OF EQU I T I E S A N D

PUBLIC INTEREST WEIGH IN FAVOR OF

GRANTING EMERGENCY RELIEF

On June 23, 2022, when this Court released its decision

in NYSRPA v. Bruen, the final selective incorporation of

a federal civil right achieved state-level maturity. The

federal and state rights of Petitioners under the Second

and Fourteenth Amendments became one-and-the-same to

defend themselves within and outside the home. Any loss

of Second Amendment rights “for even minimal periods of

time” should now “unquestionably constitute irreparable

injury,” as does any loss of First Amendment freedoms.

Elrod v. Burns, 427 U.S. 347, 373 (1976). This status

should also make protection of Second Amendment rights

as per se “in the public interest.” Id. The public interest

will not be harmed by the grant of an injunction. Tandon

v. Newsom, 593 U.S. ___, 141 S. Ct. 1294, 1298 (2021, per

curiam); Roman Cath. Diocese of Brooklyn v. Cuomo, 592

U.S. ___, 141 S. Ct. 63, 68 (2020, per curiam). The public is

harmed by government enforcing an unconstitutional law.

See, ACLU v. Reno, 929 F.Supp. 824, 849 (E.D. Pa. 1996).

Public safety begins with the Petitioners. Real

people. It begins when you walk into John A. Hanusik’s

tiny shop next to his home, where he greets you with

his fifty years of firearms experience. [Doc 13-9, ¶10]

You’ll find that same easy confidence sitting down with

Michael Mastrogiovanni, just north of Syracuse, where,

between him [Doc 13-5, ¶18], Hanusik, and Owens [Doc

13-8, ¶8], no one is exactly sure who has the most industry

experience. It extends into Nadine Gazzola dotting

over every customer as much as the paperwork [Doc

13-3, ¶20, 21, 25, 29, 31, 32a, 39a, 41, 49, 54], while Seth

quests for zero tolerances in gun parts he’s milling on a

CNC machine. [Docs 13-2 and 13-3, ¶39a and ¶11] It’s

Martello and Owens, Veterans, more than eight decades

between them, freely sharing their specialized training

and technical expertise with customers. [Doc 13-6, p. ¶63;

Doc 13-8, ¶¶13-15, 75, 77] It’s Nick Affronti helping out a

neighbor. [Doc 13-7, ¶87] And Craig Serafini, whose best

employee is his 20year-old son. [Doc 13-4, ¶85]

In contrast to the Petitioners’ philosophy, stance, and

demonstrated actions, the following limited examples

relative to the new laws weigh heavily against Respondent.

First, Respondent Gov. Hochul’s expressed policy is

refusal to voluntarily contribute state records to the NICS

Background Check System. (E.g., “We don’t need the feds

to do the work. We will do it here in the state of New York

where we can have access to our state database as well as

the federal database.” [Doc 1, ¶196]) There are no (zero)

NY records in NICS, except those for which the State was

paid through two federal programs, one to help victims

of domestic violence. [Doc 1, ¶¶189-196] The State does

not even report convicted criminals - undisputed. [Doc

1, pp. 84-86; Doc 12, p. 11; Martello, Doc 13-6, ¶39; Doc.

16-4; Doc. 33, p. 15]

Let’s be clear: a lack of NICS record can result in

a false “proceed” from the ATF/FBI to the FFL with a

customer at the counter. One example set forth below was

the mass murder at the First Baptist Church of Sutherland

Springs, Texas in 2017. The Air Force didn’t enter

the domestic violence conviction and the dishonorable

discharge into NICS, creating a false “proceed” for a

disqualified person. A court awarded $230 million in

damages to survivors and families of the twenty-six people

murdered. [Doc 33, p. 15]

Additional considerations:

• The State below dismissed the FFL as insignificant

as against illegal sales of firearms, opining that

FFLs stop “only” about 1.4% of persons using the

ATF Form 4473 and NICS through an FFL for

an attempted purchase. [Doc 24, p.17, n.8] From

inception of NICS (November 30, 1998) to October

31, 2022, fully 2,149,464 attempted firearms

purchases by disqualified persons were stopped at

the counter of FFL shops like Petitioner.18 What

we don’t know is how high that number could be, if

Respondent Gov Hochul would file records with the

FBI, including NYS criminal convictions.

• Respondent Gov. Hochul repeatedly lies about the

circumstances of mass shootings in public forums

from her position of influence as a state governor

and a lawyer. [Doc 1, ¶94, n.57-59]

• Annual ATF reporting for 2021 a total of twenty

(20) reports by FFLs in NY of theft/loss of 176

firearms, including any firearm unable to be located

in inventory within 24-hours of such identification

event. Petitioner Seth Gazzola can attest to the

reporting and firearm recovery process gone

through in February 2020, which resulted in

successful recovery of five firearms included in the

2020 statistics. [Doc 13-3, ¶¶16-18] The theft/loss

report is a mandatory federal filing for an FFL.

[Affronti, Doc 13-7, ¶¶27-29; Doc 24-2] There is an

entire resource center on-line on this issue: https://

www.atf.gov/resource-center/federal-firearmslicensee-theftloss-report-2021

• An interesting 2016 report by Bureau of Justice

Statistics concluded based upon prison inmate

interviews that the FFL dealer is not the primary

source for gun crime. https://bjs.ojp.gov/content/

pub/pdf/suficspi16.pdf

18. See monthly reports on the FBI official website, most

recently, November 30, 2022 at 2,160,233 denials, at https://www.

fbi.gov/file-repository/federal_denials.pdf/view.

• The New York State Intelligence Center (NYSIC),

through its Crime Gun Center (est. 2003) found

in a 2021 report that the third-party contractor

hired to perform all of NY’s law enforcement

criminal firearms trace operations “has a topsecret clearance from the military” but needed

“[a]dditional training in ATF database systems,

policies and procedures.” https://theiacp.org/sites/

default/files/all/c/Crime_Gun_Info_Sharing.pdf

• The FBI 2021 national “active shooter” analysis

report included that only one (1) wore body armor.

https://f bi.gov/file-repository/active-shooterincidents-in-the-us-2021-052422.pdf at p. 14.

What is in the public interest? Restoring Petitioners

to an operational status through, at least, a preliminary

injunction, so that they can try to keep their doors open

and their lights on, while this case proceeds.

CONCLUSION

To sum up, Petitioner John A. Hanusik describes why

two little words, “to keep,” and the fate of the firearms

industry under the new laws matter enough to make this

a Rule 11 Petition.

“Across the years since 1968, the federal

government has developed laws and guidelines.

The Defendants are now trying to mimic that

system without any real way to support the

activities they’re trying to get into. Even just

on a basic communications level, the Defendants

don’t send anything in written. You would

assume the possibility of a formal letter to all

FFLs stating the Dos and Don’ts, if they don’t

want you to do anything wrong. Instead, I

call the NYS Police and they’re not sure what

they’re supposed to do. The Defendants are

trying to overreach their bounds and do federal

work. The better approach would be for them to

yield to the federal system, which more reflects

the inter-state commerce of the firearms

industry. The State could help by submitting

its criminal records to NICS. The State could

help by supporting FFLs who operate here by

treating us as part of the barrier against illegal

sales of firearms.” Doc 13-9, ¶24.

It’s a chaotic situation on the ground in New York

as a direct result of laws generated in anger and passed

literally in the dark of night while the Governor was at

the bully pulpit. Petitioners respectfully ask the help of

this Court through preliminary injunctive relief so that

they can withstand this fight without fear that “…the next

person who walks through the door won’t be a Trooper

from the Zone K substation with the handcuffs removed

from his belt”. [Nadine Gazzola, Doc 132, ¶38]

Respectfully submitted this 3rd day of January 2023

Paloma A. Capanna

Counsel of Record

106-B Professional Park Drive

Beaufort, North Carolina 28516

(585) 377-7260

pcapanna@yahoo.com

Attorney for the Petitioners

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK,

FILED DECEMBER 22, 2022 . . . . . . . . . . . . . . . . . 1a

A PPEN DI X B — M EMOR A N DU MDECISION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK,

FILED DECEMBER 7, 2022 . . . . . . . . . . . . . . . . . . 2a

APPENDIX C — Order Denying Stay

of the United States Court of

Appeals for the Second Circuit,

Filed December 21, 2022 . . . . . . . . . . . . . . . . 59a

A P P E N DI X D — R E L E VA N T

CONSTITUTIONAL AND STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61a

A THE UNITED

APPENDIX A —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK,

FILED DECEMBER 22, 2022

U.S. DISTRICT COURT

Northern District of New York - Main Office (Syracuse)

[NextGen CM/ECF Release 1.7 (Revision 1.7.1.1)]

Case Name:

Gazzola et al. v. Hochul et al.

Case Number:

1:22-cv-01134-BKS-DJS

Docket Text:

TEXT ORDER: After carefully considering all of the

parties’ submissions in connection with [13] Plaintiffs’

motion for a temporary restraining order and/or a

preliminary injunction, as well as the oral argument

presented at the hearing yesterday, the Court DENIES

Plaintiffs’ [13] motion, and will not issue a temporary

restraining order or a preliminary injunction. A written

decision will follow shortly.

SO ORDERED by Chief Judge Brenda K. Sannes on

12/2/2022. (nmk)

Appendix B

Appendix B — MEMORANDUM-DECISION

AND

ORDER of the united states DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

NEW YORK, FILED DECEMBER 7, 2022

United States District Court

Northern District of New York

1:22-cv-1134 (BKS/DJS)

NADINE GAZZOLA, individually, and

as co-owner, President, and Bureau

of Alcohol, Tobacco, Firearms, and

Explosives Federal Firearms Licensee

(“BATFE FFL”) Responsible Person for

Zero Tolerance Manufacturing, Inc.,

SETH GAZZOLA, individually, and as coowner, Vice President, and BATFE FFL

Responsible Person for Zero Tolerance

Manufacturing, Inc., JOHN A. HANUSIK,

individually, and as owner and BATFE

FFL Responsible Person for AGA Sales,

JIM INGERICK, individually, and as

owner and BATFE FFL Responsible

Person for Ingerick’s, LLC, d/b/a Avon

Gun & Hunting Supply, CHRISTOPHER

MARTELLO, individually, and as owner

and BATFE FFL Responsible Person

for Performance Paintball, Inc., d/b/a

Ikkin Arms, MICHAEL MASTROGIOVANNI,

individually, and as owner and

BATFE FFL Responsible Person for

Spur Shooters Supply, ROBERT OWENS,

individually, and as owner and

Appendix B

BATFE FFL Responsible Person for

Thousand Islands Armory, CRAIG

SERAFINI, individually, and as owner

and BATFE FFL Responsible Person

for Upstate Guns and Ammo, LLC, NICK

AFFRONTI, individually, and as BATFE

FFL Responsible Person for East Side

Traders LLC, and, EMPIRE STATE ARMS

COLLECTORS, INC.,

Plaintiffs,

KATHLEEN HOCHUL, in her official

capacity as Governor of the State

of New York, STEVEN A. NIGRELLI, in

his official capacity as the Acting

Superintendent of the New York

State Police, ROSSANA ROSADO, in her

official capacity as the Commissioner

of the Department of Criminal Justice

Services of the New York State Police,

and LETITIA JAMES, in her official

capacity as the Attorney General of

the State of New York,

December 7, 2022, Decided

December 7, 2022, Filed

Hon. Brenda K. Sannes, Chief United States District

Judge.

Appendix B

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On November 1, 2022, Plaintiffs initiated an action

under 42 U.S.C. §§ 1983, 1985 against Defendants

Kathleen Hochul, in her official capacity as Governor of the

State of New York, Steven Nigrelli, in his official capacity

as the Acting Superintendent of the New York State

Police, Rosanna Rosado, in her official capacity as the

Commissioner of the New York Department of Criminal

Justice Services,1 and Letitia James, in her official

capacity as the Attorney General of the State of New York,

alleging that certain provisions of New York firearms law

deprive them of civil rights secured by the Second, Fifth,

and Fourteenth Amendments. (Dkt. No. 1, ¶¶ 1, 306-25.)

Plaintiffs further allege that certain challenged provisions

are pre-empted by federal statutory and regulatory law,

(id. ¶¶ 326-35), certain challenged provisions run afoul

of the Second, Fifth, or Fourteenth Amendments, (id.

¶¶ 308-09, 322, 336-43), and certain challenged provisions

are unconstitutional under an apparently novel theory

of «constitutional-regulatory overburden,» (id. ¶¶ 34451). On November 8, 2022, Plaintiffs filed a motion

for a temporary restraining order and a preliminary

injunction under Rule 65 of the Federal Rules of Civil

Procedure seeking an order enjoining enforcement of the

challenged provisions. (Dkt. No. 13, at 2-5.) The motion

1. Defendants note that Plaintiffs have incorrectly characterized

the Department of Criminal Justice Services as a division of the New

York State Police when it is in fact a separate state agency. (Dkt.

No. 29, at 7 n.1.)

Appendix B

is fully briefed, with an opposition from Defendants and

a reply by Plaintiffs. (Dkt. Nos. 29, 33.) The Court held

a hearing on December 1, 2022. After considering the

parties’ submissions and oral arguments, the Court orally

denied Plaintiffs’ motion for a temporary restraining order

and preliminary injunction and indicated that a written

decision would follow. (Dkt. No. 37.) This is that decision,

including the Court’s findings of fact and conclusions of

law in accordance with Rule 52(a)(2).

II. FACTS2

A. Plaintiffs

Plaintiffs are nine individuals and one business organization.3

2. The facts are taken from the affidavits and attached exhibits

submitted in connection with this motion. See J.S.G. ex rel. J.S.R.

v. Sessions, 330 F. Supp. 3d 731, 738 (D. Conn. 2018) (“In deciding a

motion for preliminary injunction, a court may consider the entire

record including affidavits and other hearsay evidence.”); Fisher

v. Goord, 981 F. Supp. 140, 173 n.38 (W.D.N.Y. 1997) (noting that a

“court has discretion on a preliminary injunction motion to consider

affidavits as well as live testimony, given the necessity of a prompt

decision”). The “findings are provisional in the sense that they are

not binding on a motion for summary judgment or at trial and are

subject to change as the litigation progresses.” trueEX, LLC v.

MarkitSERV Ltd., 266 F. Supp. 3d 705, 720 n.108 (S.D.N.Y. 2017); see

also Fair Hous. in Huntington Comm. Inc. v. Town of Huntington,

316 F.3d 357, 364 (2d Cir. 2003).

3. In the complaint, Plaintiffs initially suggest that the business

organizations owned by Plaintiffs are also Plaintiffs themselves.

(Dkt. No. 1, at 2.) However, the complaint lists only the individuals,

plus Empire State Arms Collectors, Inc., under the “Parties”

Appendix B

At least eight4 of the Plaintiffs are qualified under federal law

as “Responsible Persons,” (Dkt. No. 13-2, ¶ 11 n.1), associated

with a federal firearms license (“FFL”). (Id. ¶ 11; Dkt. No. 13-3,

¶ 14; Dkt. No. 13-4, ¶ 6; Dkt. No. 13-5, ¶ 6; Dkt. No. 13-6, ¶ 13;

Dkt. No. 13-7, ¶ 6; Dkt. No. 13-8, ¶ 6; Dkt. No. 13-9, ¶ 6.) At least

seven5 of the nine business organizations owned by Plaintiffs

possess federal firearms licenses that allow them to serve as

dealers in firearms. (Dkt. No. 13-2, ¶ 12; Dkt. No. 13-3, ¶ 13-14;

Dkt. No. 13-4, ¶ 6; Dkt. No. 13-5, ¶ 6; Dkt. No. 13-6, ¶ 13; Dkt.

No. 13-7, ¶ 6; Dkt. No. 13-8, ¶ 6; Dkt. No. 13-9, ¶ 6); see also

18 U.S.C. § 921(a)(11)(A). Two of these business organizations

possess federal firearms licenses that allow them to serve as

firearms manufacturers. (Dkt. No. 13-2, ¶ 12; Dkt. No. 13-3,

¶ 14; Dkt. No. 13-6, ¶ 13); see also 18 U.S.C. § 921(a)(10). One

of the business organizations possesses a federal firearms

license that allows it to serve as a firearms pawnbroker. (Dkt.

No. 13-7, ¶ 6); see also 18 U.S.C. § 921(a)(12). At least six6 of the

heading. (Id. ¶¶ 6-21.) Plaintiffs also describe this action as being

filed “on behalf of 10 Plaintiffs.” (Dkt. No. 33, at 5.) Accordingly, the

group of Plaintiffs consists only of the nine named individuals and

Empire State Arms Collectors, Inc.

4. Plaintiff Jim Ingerick is listed as a Responsible Person in

the case caption but did not submit an affidavit in connection with

Plaintiffs’ motion for a temporary restraining order and preliminary

injunction.

5. There is no indication that the business organization

associated with Plaintiff Jim Ingerick, “Avon Gun & Hunting Supply,”

has a federal firearms license.

6. There is no indication that the business organization

associated with Plaintiff Jim Ingerick, “Avon Gun & Hunting Supply,”

has a New York firearms license. And although Plaintiff Robert

Owens submitted an affidavit in connection with Plaintiffs’ motion

Appendix B

nine business organizations also hold firearms licenses under

New York law. (Dkt. No. 13-2, ¶ 15; Dkt. No. 13-4, ¶ 7; Dkt. No.

13-5, ¶ 6; Dkt. No. 13-6, ¶ 15; Dkt. No. 13-7, ¶ 7; Dkt. No. 13-9,

¶ 7.) Plaintiff Empire State Arms Collectors, Inc., holds neither

a federal nor a New York firearms license. (Dkt. No. 1, ¶ 14.)7

B. Challenged Laws

Plaintiffs claim to be challenging thirty-one statutory

firearms provisions. (Dkt. No. 1, ¶¶ 28, 32.) Their list of

challenged provisions, however, appears to contain only

twenty-four unique sections and subsections. (Id. ¶ 31.)8

Each provision challenged in the complaint is set forth in

the following table:

for a temporary restraining order and preliminary injunction, there

is no indication that the business associated with him, “Thousand

Islands Armory,” has a New York firearms license. (Dkt. No. 13-8.)

7. According to the complaint, Plaintiff Jim Ingerick “serves as

the President” of Empire State Arms Collectors Association, Inc.,

an organization whose “primary function” is hosting a gun show, and

Ingerick is “authorized to participate on its behalf for purposes of

this litigation.” (Id. ¶ 14.)

8. Plaintiffs’ memorandum of law in support of their motion for

a temporary restraining order and preliminary injunction appears

to add two other provisions: N.Y. Penal §§ 265.65, 265.66. (Dkt. No.

13, at 4.)

Appendix B

New York

Penal Law

General Business

Law

Executive Law

N.Y. Penal

§ 265.20(3-a)

N.Y. Gen. Bus.

§ 875-b(1)

N.Y. Exec. § 144-a

N.Y. Penal

§ 270.22

N.Y. Gen. Bus.

§ 875-b(2)

N.Y. Exec. § 228

N.Y. Penal

§ 400.00(1)

N.Y. Gen. Bus.

§ 875-c

N.Y. Exec.

§ 837(23)(a)

N.Y. Penal

§ 400.00(2)

N.Y. Gen. Bus.

§ 875-e

N.Y. Penal

§ 400.00(3)

N.Y. Gen. Bus.

§ 875-f

N.Y. Penal

§ 400.00(6)

N.Y. Gen. Bus.

§ 875-g(1)(b)9

N.Y. Penal

§ 400.00(7)

N.Y. Gen. Bus.

§ 875-g(2)

N.Y. Penal

§ 400.00(8)

N.Y. Gen. Bus.

§ 875-h

9. Plaintiffs incorrectly identify this provision as N.Y. Gen.

Bus. § 875-g(b)(1) throughout both the complaint and the motion for

a temporary restraining order and preliminary injunction, (Dkt.

Nos. 1, 13-11), with the exception of one correct reference in the

complaint, (Dkt. No. 1, ¶ 286). The Court notes that N.Y. Gen. Bus.

§ 875-g(b)(1) does not exist. It is clear from Plaintiffs’ description

of the provision, however, that they are referring to N.Y. Gen. Bus.

§ 875-g(1)(b). (Dkt. No. 13-11, at 13 (“N[.]Y[.] Gen[.] Bus[.] § 875-g(b)

(1) would require the Plaintiffs to sign an annual certification of their

compliance ‘with all of the requirements of this article.’” (quoting

N.Y. Gen. Bus. § 875-g(1)(b))).)

Appendix B

N.Y. Penal

§ 400.00(9)

N.Y. Penal

§ 400.00(14)

N.Y. Penal

§ 400.00(19)

N.Y. Penal

§ 400.02(2)

N.Y. Penal

§ 400.03(2)

(Id.) In their memorandum of law in support of their

motion for a temporary restraining order and preliminary

injunction, Plaintiffs separate these laws into three

groups10 and challenge each group under a different

theory,11 as set forth below:

10. N.Y. Gen. Bus. § 875-h is not included in any of Plaintiffs’

groups.

11. These groups are not fully consonant with the allegations laid

out in the complaint. In fact, each group differs from the lists of provisions

challenged under each theory in the complaint. For instance, Plaintiffs

include N.Y. Penal § 400.02(2) in Group A, (Dkt. No. 13, at 3), but Plaintiffs

did not allege in their complaint that N.Y. Penal § 400.02(2) is pre-empted

by federal law, (Dkt. No. 1). Group C has similarly been added to and

subtracted from as compared to the portion of the complaint alleging

Plaintiffs’ theory of “constitutional regulatory overburden.” (Dkt. No. 13,

at 4-5; Dkt. No. 1, ¶ 181.) Plaintiffs also include N.Y. Penal §§ 265.65, 265.66

in Group B, (Dkt. No. 13, at 4), but these provisions are not mentioned at

all in the complaint, (Dkt. No. 1). Nevertheless, the Court will “consider

the entire record” and examine each law that Plaintiffs cite either in their

complaint or in their memorandum of law in support of their motion for

a temporary restraining order and preliminary injunction. See J.S.G. ex

rel. J.S.R., 330 F. Supp. 3d at 738.

N.Y. Penal §§ 400.00(1), (19)

N.Y. Exec. § 837(23)(a)

N.Y. Gen. Bus. § 875-b(2)

N.Y. Gen. Bus. § 875-f

N.Y. Penal § 270.22

N.Y. Penal § 400.02(2)

12. These provisions were not included in the list of challenged provisions in the complaint. (Dkt. No. 1, ¶ 31)

N.Y. Penal § 400.03(2)

N.Y. Exec. § 144-a

N.Y. Gen. Bus. § 875-g(2)

N.Y. Gen. Bus. § 875-g(1)(b)N.Y. Penal § 265.6612

N.Y. Exec. § 228

N.Y. Gen. Bus. § 875-f(2)

N.Y. Penal § 265.6512

N.Y. Gen. Bus. § 875-f(3)

N.Y. Penal § 400.02(2)

N.Y. Penal §§ 40 0.0 0(2)-(3), N.Y. Gen. Bus. § 875-e(3)

(6)-(9), (14)

N.Y. Gen. Bus. § 875-e

N.Y. Gen. Bus. § 875-c

N.Y. Gen. Bus. § 875-b(2)

N.Y. Gen. Bus. § 875-b(1)

N.Y. Gen. Bus. § 875-f(2)

N.Y. Gen. Bus. § 875-f(1)-(4)N.Y. Penal § 265.20(3-a)

N.Y. Gen. Bus. § 875-g(1)(b)

Group B:

Group C:

“unconstitutional under the “unconstitutional regulatory

Second, Fifth, and Fourteenth overburden in violation of

Amendments”

the Second and Fourteenth

(Dkt. No. 13, at 4)

Amendments”

(Dkt. No. 13, at 4-5)

N.Y. Gen. Bus. § 875-b(1)

Group A:

“pre-empted by

federal law”

(Dkt. No. 13, at 3)

10a

Appendix B

11a

Appendix B

Plaintiffs have stated their opposition to compliance

with the New York laws. (Dkt. No. 13-2, ¶¶ 64, 66, 68, 69,

70; Dkt. No. 13-3, ¶ 22; Dkt. No. 13-4, ¶¶ 29, 66, 83; Dkt.

No. 13-5, ¶ 65; Dkt. No. 13-6, ¶¶ 40, 79, 87, 88, 92, 95; Dkt.

No. 13-7, ¶ 71; Dkt. No. 13-8, ¶ 30.) Plaintiffs have also

stated that the laws already in effect have had adverse

economic consequences, (Dkt. No. 13-2, ¶¶ 56-61; Dkt. No.

13-3, ¶ 42; Dkt. No. 13-4, ¶ 22; Dkt. No. 13-6, ¶¶ 53, 61, 69;

Dkt. No. 13-7, ¶ 37; Dkt. No. 13-8, ¶¶ 52, 59; Dkt. No. 13-9,

¶¶ 13-14), and that there will be economic consequences

when the remaining laws take effect, (Dkt. No. 13-4, ¶ 22;

Dkt. No. 13-5, ¶¶ 25, 68; Dkt. No. 13-8, ¶¶ 29, 58, 60).

Additionally, the Court notes that the knowing violation

of N.Y. Gen. Bus. art. 39-BB is a class A misdemeanor

and that violations of N.Y. Penal §§ 265.65, 265.66, 270.22,

400.00, 400.03 carry consequences under New York Penal

Law. See N.Y. Gen. Bus. § 875-i; N.Y. Penal §§ 265.65,

265.66, 270.22, 400.00(15), 400.03(8).

III.

STANDARD OF REVIEW

Rule 65 of the Federal Rules of Civil Procedure

governs temporary restraining orders and preliminary

injunctions. In the Second Circuit, the standard for the

issuance of a temporary restraining order is the same as

the standard for the issuance of a preliminary injunction.

Fairfield Cnty. Med. Ass’n v. United Healthcare of New

Eng., 985 F. Supp. 2d 262, 270 (D. Conn. 2013), aff’d, 557 F.

App’x 53 (2d Cir. 2014) (summary order); AFA Dispensing

Grp. B.V. v. Anheuser-Busch, Inc., 740 F. Supp. 2d 465, 471

(S.D.N.Y. 2010). To obtain a temporary restraining order

or preliminary injunction that “will affect government

12a

Appendix B

action taken in the public interest pursuant to a statute or

regulatory scheme,” the moving party must demonstrate:

(1) irreparable injury in the absence of an injunction; (2) a

likelihood of success on the merits; and (3) that the public

interest weighs in favor of and will not be disserved by

the injunction. See We The Patriots USA, Inc. v. Hochul,

17 F.4th 266, 279 (2d Cir. 2021), cert. denied sub nom. Dr.

A. v. Hochul, 142 S. Ct. 2569, 213 L. Ed. 2d 1126 (2022);

see also Benihana, Inc. v. Benihana of Tokyo, LLC, 784

F.3d 887, 895 (2d Cir. 2015); N. Am. Soccer League, LLC

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

Generally, “[t]he movant must also show that the balance

of equities supports the issuance of an injunction.” See We

The Patriots USA, 17 F.4th at 280 (citing Yang v. Kosinski,

960 F.3d 119, 127 (2d Cir. 2020)). This factor merges into

the inquiry into the public interest when the government

is a party to the suit. Id. at 295 (citing New York v. U.S.

Dep’t of Homeland Sec., 969 F.3d 42, 58-59 (2d Cir. 2020)).

Injunctive relief can be mandatory or prohibitory. See

Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities

Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010).

When the injunctive relief sought is “‘mandatory’ [in

that it would] ‘alter[] the status quo by commanding

some positive act,’ as opposed to [being] ‘prohibitory’ [by]

seeking only to maintain the status quo,” id. (quoting Tom

Doherty Assocs., Inc. v. Saban Ent., Inc., 60 F.3d 27, 34

(2d Cir. 1995)), the movant “must meet a heightened legal

standard by showing ‘a clear or substantial likelihood of

success on the merits.’” N. Am. Soccer League, 883 F.3d

at 37 (quoting N.Y. Civ. Liberties Union v. N.Y.C. Transit

Auth., 684 F.3d 286, 294 (2d Cir. 2012)). The “status quo

. . . is[] ‘the last actual, peaceable uncontested status which

13a

Appendix B

preceded the pending controversy.’” Id. (quoting Mastrio

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

Here, the injunctive relief Plaintiffs request with

regard to the laws not yet in effect would maintain “the

last actual, peaceable uncontested status which preceded

the pending controversy,” Hester ex rel. A.H. v. French,

985 F.3d 165, 177 (2d Cir. 2021) (quoting N. Am. Soccer

League, 883 F.3d at 37), by “stay[ing] ‘government action

taken in the public interest pursuant to a statutory or

regulatory scheme,’” Field Day, LLC v. Cnty. of Suffolk,

463 F.3d 167, 181 (2d Cir. 2006) (quoting Mastrovincenzo

v. City of New York, 435 F.3d 78, 88 (2d Cir. 2006)). Though

all of the laws at issue have been enacted, Plaintiffs allege,

and Defendants do not dispute, that certain challenged

provisions did not take effect until December 5, 2022.13

(Dkt. No. 13-2, ¶ 62; Dkt. No. 13-4, ¶ 49; Dkt. No. 13-5, ¶ 25.)

The requested injunctive relief would not have compelled

Defendants to take any action before that date and would

not have disrupted an established state program, so the

heightened mandatory injunction standard does not apply

to the challenges to these provisions. See Libertarian

Party of Conn. v. Lamont, 977 F.3d 173, 177 (2d Cir.

2020); Hester, 985 F.3d at 177. But Plaintiffs concede that

some of the challenged provisions had already gone into

13. The Court notes that these provisions appear to have

taken effect on December 3, 2022, not December 5, 2022. See S.B.

S4970A, 2020 Sen., 2021-22 Reg. Sess. (N.Y. 2022). In any event, the

Court denied Plaintiffs’ motion for a temporary restraining order

and preliminary injunction on December 2, 2022. (Dkt. No. 37.) The

Court further notes that some of the provisions Plaintiffs challenge

had already taken effect (namely, N.Y. Penal §§ 270.22, 400.00(1)-(3),

(6)-(9), (14), (19), 400.02(2), 400.03(2)).

14a

Appendix B

effect. (Dkt. No. 33, at 4.) The injunctive relief Plaintiffs

request with regard to these laws would not maintain

“the last actual, peaceable uncontested status which

preceded the pending controversy,” Hester, 985 F.3d at

177 (quoting N. Am. Soccer League, 883 F.3d at 37), but

would instead “alter the status quo by commanding some

positive act,” Citigroup, 598 F.3d at 35 n.4 (quoting Tom

Doherty Assocs., 60 F.3d at 34). Thus, for these provisions,

the Plaintiffs “must meet a heightened legal standard by

showing ‘a clear or substantial likelihood of success on the

merits.’” N. Am. Soccer League, 883 F.3d at 37 (quoting

N.Y. Civ. Liberties Union., 684 F.3d at 294).

However, this distinction is immaterial for the case at

hand because, as discussed below, Plaintiffs fail to meet

even the lesser “likelihood of success” standard for any of

their claims. Accordingly, the Court limits its discussion to

an examination of whether Plaintiffs have demonstrated

(1) irreparable injury in the absence of an injunction; (2)

a likelihood of success on the merits; and (3) whether

the balance of the equities supports the issuance of an

injunction. See We The Patriots USA, 17 F.4th at 279-80.

IV. ANALYSIS

Standing

The parties did not fully raise the issue of standing.14

However, the Court “bears an independent obligation to

14. Neither party has fully briefed the issue of standing, and

Defendants do not dispute Plaintiffs’ standing except for limited

arguments involving Defendants Hochul and James, (Dkt. No. 29,

at 13-15).

15a

Appendix B

assure . . . that jurisdiction is proper before proceeding

to the merits.” Plains Com. Bank v. Long Fam. Land

& Cattle Co., 554 U.S. 316, 324, 128 S. Ct. 2709, 171 L.

Ed. 2d 457 (2008) (citing Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94-95, 118 S. Ct. 1003, 140 L. Ed. 2d

210 (1998)). Therefore, the Court will consider whether

Plaintiffs have standing.

The jurisdiction of federal courts is limited to “Cases”

and “Controversies.” U.S. Const., art. III, § 2; see also

In re Clinton Nurseries, Inc., 53 F.4th 15, 22 (2d Cir.

2022). The doctrine of standing “gives meaning to these

constitutional limits by “identify[ing] those disputes

which are appropriately resolved through the judicial

process.” Susan B. Anthony List v. Driehaus, 573 U.S.

149, 157, 134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct.

2130, 119 L. Ed. 2d 351 (1992)); see also Spokeo, Inc. v.

Robins, 578 U.S. 330, 338, 136 S. Ct. 1540, 194 L. Ed. 2d

635 (2016). To establish standing, “a plaintiff must show

(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection

between the injury and the conduct complained of,’ and

(3) ‘a likel[ihood]’ that the injury ‘will be redressed by

a favorable decision.’” Susan B. Anthony List, 573 U.S.

at 157-58 (quoting Lujan, 504 U.S. at 560-61). An injury

must be “concrete and particularized” and “actual or

imminent,” not “conjectural or hypothetical.” Id. at 158

(quoting Lujan, 504 U.S. at 560). “‘The party invoking

federal jurisdiction bears the burden of establishing’

standing,” id. at 158 (quoting Amnesty Int’l USA, 568

U.S. at 411-12), and the party must establish standing for

each claim, Davis v. FEC, 554 U.S. 724, 734, 128 S. Ct.

16a

Appendix B

2759, 171 L. Ed. 2d 737 (2008). “At least one plaintiff must

have standing to seek each form of relief requested in the

complaint.” Town of Chester v. Laroe Ests., Inc., 137 S.

Ct. 1645, 1651, 198 L. Ed. 2d 64 (2017).

Where a law not yet in effect is challenged, standing

can be satisfied by alleging “an intention to engage in a

course of conduct arguably affected with a constitutional

interest, but proscribed by a statute, and there exists

a credible threat of prosecution thereunder.” Susan B.

Anthony List, 573 U.S. at 159 (quoting Babbitt v. United

Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S. Ct.

2301, 60 L. Ed. 2d 895 (1979)). In such a circumstance, a

plaintiff need not show it is “subject to . . . an actual arrest,

prosecution, or other enforcement action,” nor does the

plaintiff need “to confess that [it] will in fact violate the

law.” Id. at 158, 163 (citing United Farm Workers Nat’l

Union, 442 U.S. at 301).

To establish standing for a preliminary injunction,

a party cannot rely on “mere allegations” but must

“‘set forth’ by affidavit or other evidence ‘specific facts’

which for purposes of [the] motion will be taken as true.”

Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011)

(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 907

n.8, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)).

Standing as Owners of FFL Businesses

The Court finds, for the purpose of ruling on the

motion for a temporary restraining order and preliminary

injunction, that at least one Plaintiff has satisfied the

17a

Appendix B

standing requirements for each claim. Several Plaintiffs

have alleged existing economic injuries arising from the

challenged New York laws that are already in effect that

could plausibly be redressed by enjoining those laws.

(Dkt. No. 13-2, ¶¶ 56-61; Dkt. No. 13-3, ¶ 42; Dkt. No. 134, ¶ 22; Dkt. No. 13-6, ¶¶ 53, 61, 69; Dkt. No. 13-7, ¶ 37;

Dkt. No. 13-8, ¶¶ 52, 59; Dkt. No. 13-9, ¶¶ 13-14); see also

SM Kids, LLC v. Google LLC, 963 F.3d 206, 211 (2d Cir.

2020). Each of Plaintiffs’ claims involves at least one of

these laws that is already in effect. (Dkt. No. 13, at 3-5.)

Furthermore, several Plaintiffs allege an intention to

violate the remaining laws that have not yet taken effect.

(Dkt. No. 13-2, ¶¶ 64, 66, 68, 69, 70; Dkt. No. 13-3, ¶ 22;

Dkt. No. 13-4, ¶¶ 29, 66, 83; Dkt. No. 13-5, ¶ 65; Dkt. No.

13-6, ¶¶ 40, 79, 87, 88, 92, 95; Dkt. No. 13-7, ¶ 71; Dkt.

No. 13-8, ¶ 30.) Given that “courts are generally willing

to presume that the government will enforce the law as

long as the relevant statute is recent and not moribund,”

Picard v. Magliano, 42 F.4th 89, 98 (2d Cir. 2022) (internal

quotation marks omitted), this is sufficient to establish

an “intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed

by a statute, and [that] there exists a credible threat of

prosecution thereunder.” See Susan B. Anthony List, 573

U.S. at 159 (quoting Farm Workers Nat’l Union, 442 U.S.

at 298). Thus, taking these allegations to be true at this

stage, and considering the alleged existing injuries and

the intentions to violate the New York statutes together,

Plaintiffs have satisfied the standing requirements for

seeking a temporary restraining order and preliminary

injunction as owners of FFL businesses.

18a

Appendix B

2. Individual Standing to Pursue a Second

Amendment Claim

While this action primarily concerns Plaintiffs as

owners of FFL businesses, Plaintiffs did assert, in a

cursory manner, that their individual rights under the

Second Amendment were violated. (Dkt. No. 1; Dkt. No.

13-11, at 4).15 Defendants argue that Plaintiffs “have no

Second Amendment injuries as individuals.” (Dkt. No. 29,

at 23). In reply, Plaintiffs argue that they “have standing

to assert infringement of their individual civil rights,

such as the renewal of the permit, access to instructors

to satisfy renewal requirements, the right to purchase

a semiautomatic rifle[,] . . . and the right to purchase

ammunition.” (Dkt. No. 33, at 7.) Plaintiffs reiterated

these claims at the December 1, 2022, hearing, arguing

that their inability to purchase semi-automatic rifles or

ammunition or renew existing concealed carry permits

satisfies the standing requirements for an individual

Second Amendment claim.

Although Plaintiffs did not adequately raise these

arguments in their moving papers, the Court has

considered the isolated allegations of injury to individual

Second Amendment rights in the record and finds that no

Plaintiff has provided sufficient allegations to establish

individual standing to pursue a Second Amendment claim.

Plaintiff Christopher Martello alleges that he “desire[s]

to purchase additional semi-automatic rifles for personal

15. At the same time, Plaintiffs acknowledge that previously

filed lawsuits involving individual plaintiffs “are distinguished.”

(Dkt. No. 13-11, at 4 n.1.)

19a

Appendix B

self-defense and sporting purposes . . . [and that he is]

unable to do so because Livingston County is not offering

a semiautomatic license, which is required to be presented

to an FFL to lawfully purchase such a rifle.” (Dkt. No. 136, ¶ 11.) But there is no allegation that he took any steps

to purchase a semiautomatic rifle. Thus, he has failed to

establish a “concrete and particularized” and “actual and

imminent” injury. Susan B. Anthony List, 573 U.S. at

158 (quoting Lujan, 504 U.S. at 560); see also Antonyuk

v. Bruen, No. 22-cv-0734, 2022 U.S. Dist. LEXIS 157874,

at *45, 2022 WL 3999791, at *15 (N.D.N.Y. Aug. 31, 2022)

(“‘[S]ome day’ intentions—without any description of

concrete plans, or indeed even any specification of when

the some day will be—do not support a finding of the

‘actual or imminent’ injury that our cases require.”

(quoting Lujan, 504 U.S. at 564)). Moreover, he has failed

to establish how the non-defendant county’s failure to

issue semiautomatic rifle licenses is “fairly traceable to

the challenged action.” See Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 134 n.6, 134 S.

Ct. 1377, 188 L. Ed. 2d 392 (2014); see also Simon v. E. Ky.

Welfare Rts. Org., 426 U.S. 26, 41-42, 96 S. Ct. 1917, 48 L.

Ed. 2d 450 (1976) (holding that, to establish standing, the

challenged action must have been taken by a defendant,

not “some third party not before the court”).

Plaintiff Craig Serafini makes a similar assertion

with regard to ammunition, stating: “People don’t want

to give their name and personal information out every

time they buy [ammunition]. . . . I don’t blame them. I,

myself, haven’t purchased any ammunition since the new

law went into effect. I’m leading in this section in my role

20a

Appendix B

as an FFL, but I also wish to remind the Court that my

individual rights are being violated, as well.” (Dkt. No. 134, ¶¶ 54-55). For the same reasons, these allegations are

insufficient to demonstrate a concrete and particularized

and actual and imminent injury.

Finally, with respect to the renewal of a concealed

carry permit, Plaintiff Seth Gazzola states: “I have a

concealed carry permit that I want to timely renew, which

will require a valid training course.” (Dkt. No. 13-3, ¶ 39.).16

As with the claims of Plaintiffs Martello and Serafini,

Plaintiffs fail to demonstrate how this single sentence,

evincing a desire to timely renew a permit, amounts to

an actual, imminent, concrete, and particularized injury.

See Susan B. Anthony List, 573 U.S. at 158. Accordingly,

the Court limits its finding of standing to Plaintiffs as

FFL businesses.

16. Plaintiffs’ allegation regarding renewal appears to rely

on the premise that concealed carry permits cannot be renewed

without completing the training requirements of N.Y. Penal § 400.00

and that that law is unconstitutionally vague, rendering renewal

impossible. This appears to misconstrue the law. Defendants argue

that the relevant provisions do not require that concealed carry

permits issued “[e]lsewhere than in the city of New York and the

counties of Nassau, Suffolk and Westchester” be renewed. N.Y. Penal

§ 400.00(10). (Dkt. No. 29, at 25 n.10.) It appears that such permits

must be recertified, N.Y. Penal § 400.00(10)(d), which requires a

separate process that does not include the completion of the training

course, N.Y. Penal § 400.00(1), (10), (19). Plaintiffs have not indicated

how their interpretation of the statute is supported. Furthermore,

the Court has concluded that Plaintiffs have not

21a

Appendix B

B. Injunctive Relief

1. Irreparable Harm

Plaintiffs contend that the New York laws create a

danger of imminent irreparable harm in the absence of

injunctive relief because the laws violate constitutional

rights and disrupt or force the closure of Plaintiffs’

businesses, causing economic and emotional harm. (Dkt.

No. 13-11, at 6-8, 26-27.) Defendants argue that Plaintiffs

have failed to convincingly show any constitutional

injury and failed to show that any injury is concrete and

imminent. (Dkt. No. 29, at 10-12.) Defendants also argue

that injunctive relief should be denied because the losses

alleged by Plaintiffs are monetary and quantifiable. (Id.

at 12.)17

17. Defendants further argue that, even assuming Plaintiffs

can establish irreparable harm, Plaintiffs’ delay in seeking an

injunction undermines any assertion of irreparable harm. (Id. at

10-11.) The challenged laws were passed between May 30, 2022, and

July 1, 2022. (Dkt. No. 1, ¶ 1.) “Preliminary injunctions are generally

granted under the theory that there is an urgent need for speedy

action to protect the plaintiffs’ rights. Delay in seeking enforcement

of those rights, however, tends to indicate at least a reduced need

for such drastic, speedy action.” Citibank N.A. v. Citytrust, 756

F.2d 273, 276 (2d Cir. 1985); see also Weight Watchers Int’l, Inc. v.

Luigino’s, Inc., 423 F.3d 137, 144-45 (2d Cir. 2005) (“We have found

delays of as little as ten weeks sufficient to defeat the presumption

of irreparable harm that is essential to the issuance of a preliminary

injunction. By contrast, we have held that a short delay does not

rebut the presumption where there is a good reason for it, as when

a plaintiff is not certain of the infringing activity . . . .” (citations

omitted)). Because Plaintiffs fail to demonstrate, for any of their

claims, a likelihood of success on the merits, the Court need not

22a

Appendix B

A showing of irreparable harm is “the single most

important prerequisite for the issuance of a preliminary

injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp.,

559 F.3d 110, 118 (2d Cir. 2009) (quoting Rodriguez v.

DeBuono, 175 F.3d 227, 234 (2d Cir. 1999)); see also

Doe demonstrated a likelihood of success on their claim

that the training requirements of N.Y. Penal 400.00 are

unconstitutionally vague. See infra section IV.B.2.c.ii. v.

Rensselaer Polytechnic Inst., No. 18-cv-1374, 2019 U.S.

Dist. LEXIS 5396, at *4, 2019 WL 181280, at *2 (N.D.N.Y.

Jan. 11, 2019). “Irreparable harm is ‘injury that is neither

remote nor speculative, but actual and imminent and that

cannot be remedied by an award of monetary damages.’”

New York ex rel. Schneiderman v. Actavis PLC, 787

F.3d 638, 660 (2d Cir. 2015) (quoting Forest City Daly

Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 153

(2d Cir. 1999)). “The relevant harm is the harm that (a)

occurs to the parties’ legal interests and (b) cannot be

remedied after a final adjudication, whether by damages

or a permanent injunction.” Salinger v. Colting, 607 F.3d

68, 81 (2d Cir. 2010) (internal footnote omitted).

Generally, “[a] court will presume that a movant has

established irreparable harm in the absence of injunctive

relief if the movant’s claim involves the alleged deprivation

of a constitutional right.” J.S.G. ex rel. J.S.R, 330 F. Supp.

3d at 738; Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.

1984) (“When an alleged deprivation of a constitutional

right is involved, most courts hold that no further showing

consider whether the delay in seeking injunctive relief undermines

Plaintiffs’ contention that they will be irreparably harmed. See

Weight Watchers Int’l, 423 F.3d at 145.

23a

Appendix B

of irreparable injury is necessary.” (quoting 11 Charles

Alan Wright & Arthur R. Miller, Federal Practice &

Procedure, § 2948 (1973))). Courts have, however, found

that “the mere allegation of a constitutional infringement

itself does not constitute irreparable harm.” Lore v. City

of Syracuse, No. 00-cv-1833, 2001 U.S. Dist. LEXIS

26942, at *17, 2001 WL 263051, at *6 (N.D.N.Y. Mar.

9, 2001). Indeed, the presumption of irreparable harm

is triggered only where the alleged constitutional

deprivation “is convincingly shown and that violation

carries noncompensable damages.” Donohue v. Mangano,

886 F. Supp. 2d 126, 150 (E.D.N.Y. 2012) (citing Donohue

v. Paterson, 715 F. Supp. 2d 306, 315 (N.D.N.Y. 2010)). And

“the Court cannot determine whether the constitutional

deprivation is convincingly shown without assessing the

likelihood of success on the merits.” Id. at 150 (citing

Turley v. Giuliani, 86 F. Supp. 2d 291, 295 (S.D.N.Y.

2000)).

A s discussed below, Plaintiffs have failed to

demonstrate a likelihood of success on the merits of any

of their claims—that is, Plaintiffs have not convincingly

shown a constitutional deprivation, see Donohue, 886 F.

Supp. 2d at 150. Accordingly, the Court will not “presume

that [Plaintiffs] ha[ve] established irreparable harm in the

absence of injunctive relief.” See J.S.G. ex rel. J.S.R., 330

F. Supp. 3d at 738.

Plaintiffs assert that the “loss of ability to sell

entire lines of merchandise, such as handguns and semiautomatic rifles” constitutes irreparable injury. (Dkt. No.

13-11, at 7.) This injury arises, Plaintiffs suggest, both

24a

Appendix B

from specific laws, such as those requiring a training

course for new licenses, (Dkt. No. 13-2, ¶ 59; Dkt. No.

13-5, ¶ 30; Dkt. No. 13-7, ¶ 38; Dkt. No. 13-8, ¶ 52), those

requiring a license for purchasing semi-automatic rifles,

(Dkt. No. 13-2, ¶¶ 57, 59; Dkt. No. 13-4, ¶ 63; Dkt. No. 13-5,

¶¶ 29-30; Dkt. No. 13-6, ¶¶ 57-58; Dkt. No. 13-7, ¶¶ 34, 37),

and those requiring the collection of customer information

for ammunition sales, (Dkt. No. 13-2, ¶ 61; Dkt. No. 13-4,

¶ 54; Dkt. No. 13-6, ¶ 69; Dkt. No. 13-7, ¶ 37; Dkt. No. 138, ¶ 52; Dkt. No. 13-9, ¶ 14), and from the “chilling” effect

on firearms sales that the new laws have created, (Dkt.

No. 13-2, ¶¶ 25-26).

Plaintiffs Nadine Gazzola and John Hanusik provide

the only quantified data related to the alleged irreparable

injury: Plaintiff Nadine Gazzola claims that “September

sales in the categories of handguns and semi-automatic

rifles were down Ninety Percent (90%) and October

continued to be depressed,” (id. ¶ 57), and “[a]mmunition

sales have been irregular, at best. There was a drop-off.

Then for approximately two weeks there were no sales,”

(id. ¶ 61); Plaintiff John Hanusik similarly alleges that

“[s]ales in firearms at A.G.A. Sales are down 40%-50%.”

(Dkt. No. 13-9, ¶ 13.) Other Plaintiffs allege losses without

quantifying them. Plaintiff Nicholas Affronti claims that

“sales are crashing for handguns and for semi-automatic

rifles[] [and] [a]ncillary sales, like ammunition, are

falling right alongside it.” (Dkt. No. 13-7, ¶ 37.) Plaintiff

Christopher Martello states: “What ammunition sales?

Is the easiest way I can convey to the Court what is

happening to business as a result of the new laws. . . .

The retail side of business has gone crickets.” (Dkt. No.

13-6, ¶ 69.)

25a

Appendix B

Plaintiffs also assert that absent judicial relief they

“may be out-of-business as of end-of-day on December

4, 2022.” (Dkt. No. 13-11, at 7.) Plaintiffs Craig Serafini,

Michael Mastrogiovanni, and Robert Owens echo this

sentiment in their affidavits without providing sufficient

support. (Dkt. No. 13-4, ¶ 22 (alleging, without meaningful

additional detail, that he is “probably not going to make

it much longer than December 31” because he “won’t be

in compliance,” and “won’t be able to sustain the daily

losses” he is incurring by staying open); Dkt. No. 13-5, ¶ 25

(alleging, without meaningful additional detail, that “[i]f

we do not achieve an immediate Temporary Restraining

Order, I am going to have to seriously consider closing

my business as of December 5, 2022”); Dkt. No. 13-8, ¶ 29

(alleging, without meaningful additional detail, that “[i]f

we do not achieve an immediate Temporary Restraining

Order, I will have to close my business on or about

December 5, 2022”).)

A “company’s loss of reputation, good will, and

business opportunities” can constitute irreparable harm,

2004), “because these damages ‘are difficult to establish

and measure.’” Regeneron Pharms., Inc. v. United States

HHS, 510 F. Supp. 3d 29, 40 (S.D.N.Y. 2020) (quoting

sales alone are insufficient to constitute irreparable harm

because such injuries can be adequately compensated

with money damages. See Tom Doherty Assocs., 60 F.3d

at 38 (“[W]e have found no irreparable harm . . . [when]

lost profits stemming from the inability to sell [certain

products] could be compensated with money damages

26a

Appendix B

determined on the basis of past sales of [those products]

and of current and expected future market conditions.”);

see also Kane v. De Blasio, 19 F.4th 152, 171-72 (2d Cir.

2021) (“Plaintiffs . . . face economic harms, principally a

loss of income, . . . [that] do not justify an injunction . . . .”);

appropriately compensated by an award of monetary

damages, then an adequate remedy at law exists, and

no irreparable injury may be found to justify specific

relief.”). And while being forced out of business entirely

can constitute irreparable harm, see Entergy Nuclear Vt.

Yankee, LLC v. Shumlin, 733 F.3d 393, 423 (2d Cir. 2013)

(citing Tom Doherty Assocs., 60 F.3d at 37), Plaintiffs do not

present sufficient evidence to demonstrate such a danger

by, for instance, describing how decreased sales in certain

categories—namely, semi-automatic rifles, handguns,

and ammunition—impact overall profitability and,

consequently, the very viability of Plaintiffs’ businesses.

See Rex Med. L.P. v. Angiotech Pharms. (US), Inc., 754

F. Supp. 2d 616, 622-23 (S.D.N.Y. 2010).18 Nor do Plaintiffs’

18. Plaintiff Nadine Gazzola comes closest to succeeding in

this regard: After stating that “September sales in the categories

of handguns and semi-automatic rifles were down Ninety Percent

(90%) and October continued to be depressed,” she alleges: “At least

50% of our firearms sales are handguns. Most of the remaining

50% are tactical rifles, including ARs and AKs. . . . We can’t afford

to keep the doors open with just sales of traditional hunting rifles

during the fall hunting season.” (Dkt. No. 13-2, ¶ 57.) But even

these allegations fall short of providing a concrete showing that

the viability of her business is threatened. As an initial matter, this

Plaintiff does not quantify the sales decrease of “tactical rifles,” as

distinguished from semi-automatic rifles, (id.), making the effect of

the decrease in semi-automatic rifle sales difficult to contextualize.

27a

Appendix B

conclusory assertions that their businesses may close

absent injunctive relief provide sufficient factual support

to establish an actual and imminent irreparable injury.

See DeVivo Assocs., Inc. v. Nationwide Mut. Ins. Co., No.

19-cv-2593, 2020 U.S. Dist. LEXIS 94511, at *14, 2020 WL

2797244, at *5 (E.D.N.Y. May 29, 2020) (“[A] preliminary

injunction ‘should not issue upon a plaintiff’s imaginative,

worst case scenario of the consequences flowing from the

defendant’s alleged wrong but upon a concrete showing

of imminent, irreparable injury.’” (quoting USA Network

v. Jones Intercable, Inc., 704 F. Supp. 488, 491 (S.D.N.Y.

1989))); see also Rossito-Canty v. Cuomo, 86 F. Supp.

3d 175, 199 (E.D.N.Y. 2015) (“Irreparable harm may not

be premised ‘only on a possibility.’” (quoting Winter v.

NRDC, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d

249 (2008))).19

More importantly, she does not quantify October sales beyond

stating that they “continued to be depressed” despite having signed

her affidavit on November 7, 2022, (id. at 22), when October sales

data would have been available. As Plaintiffs acknowledge, some

counties began issuing semiautomatic rifle licenses, or amendments

or endorsements to existing licenses, in October 2022, (id. ¶ 51; Dkt.

No. 13-3, ¶ 40; Dkt. No. 13-4, ¶ 63; Dkt. No. 13-5, ¶ 28; Dkt. No. 13-6,

¶¶ 55-56; Dkt. No. 13-8, ¶ 70), which suggests that semi-automatic

rifle sales may well recover. Thus, even these comparatively specific

allegations fall short of successfully demonstrating an irreparable

injury. See Tom Doherty Assocs., 60 F.3d at 38; Rex Med. L.P., 754

F. Supp. 2d at 622-23.

19. In their declarations, Plaintiffs allege additional harms,

such as the inability to hire their children who are under twentyone years old, (Dkt. No. 13-2, ¶ 70; Dkt. No. 13-4, ¶ 85), an inability

to offer training classes, (Dkt. No. 13-2, ¶ 56), and the costs of

implementing new security measures, (Dkt. No. 13-2, ¶¶ 62-63; Dkt.

28a

Appendix B

On this record, the Court finds that Plaintiffs have

not established an actual and imminent injury that is

irreparable in the absence of injunctive relief. 20

Likelihood of Success

“To establish a likelihood of success on the merits,

a plaintiff must show that [it] is more likely than not

to prevail on [its] claims, or, in other words, that the

No. 13-5, ¶ 65; Dkt. No. 13-6, ¶¶ 76, 86; Dkt. No. 13-7, ¶¶ 57, 65.) But

in their moving papers, Plaintiffs premise their irreparable harm

argument primarily on the loss of ability to sell certain merchandise

and the danger of being forced out of business. (Dkt. No. 13-11, at 7,

26; Dkt. No. 33, at 9, 11-12.) Furthermore, the costs of compliance

with government regulations are typically insufficient to constitute

irreparable harm. See Freedom Holdings, Inc. v. Spitzer, 408 F.3d

112, 114 (2d Cir. 2005); see also New York v. U.S. Dep’t of Educ., 477

F. Supp. 3d 279, 303-04 (S.D.N.Y. 2020) (citing Freedom Holdings, 408

F.3d at 115; Am. Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (7th Cir.

1980); A.O. Smith Corp. v. FTC, 530 F.2d 515, 527-28 (3d Cir. 1976)).

These allegations are insufficient to constitute irreparable harm.

20. Plaintiffs suggest in their reply brief that, if the Court

were to hold an evidentiary hearing before ruling on the motion for a

preliminary injunction, Plaintiffs would have “90[ ]days of available

data” relevant to “allegations for damages.” (Dkt. No. 33, at 15.)

However, in light of Plaintiffs’ failure to demonstrate a likelihood

of success on the merits of their claims, see infra section IV.B.2, the

Court, in its discretion, concludes that it may “dispose of the motion

on the papers before it.” See Md. Cas. Co. v. Realty Advisory Bd. on

Labor Rels., 107 F.3d 979, 984 (2d Cir. 1997) (quoting Consol. Gold

Fields PLC v. Minorco, S.A., 871 F.2d 252, 256 (2d Cir. 1989)); see

also Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir. 1998)

(“An evidentiary hearing is not required when the relevant facts

. . . are not in dispute . . . .”) (internal citations omitted).

29a

Appendix B

‘probability of prevailing is “better than fifty percent.”’”

Doe v. Vassar Coll., No. 19-cv-0601, 2019 U.S. Dist. LEXIS

203418, at *20-21, 2019 WL 6222918, at *7 (S.D.N.Y. Nov.

21, 2019) (quoting BigStar Ent., Inc. v. Next Big Star, Inc.,

105 F. Supp. 2d 185, 191 (S.D.N.Y. 2000). The Court will

examine each of Plaintiffs’ claims to determine whether

Plaintiffs have demonstrated a likelihood of success on

the merits.

a. Defendants Hochul and James

Defendants argue that Plaintiffs have failed to

show any likelihood of success on their claims against

Defendants Hochul and James because claims against

these Defendants are barred by the Eleventh Amendment,

no injury is fairly traceable to these Defendants, and

legislative immunity bars suit against Defendant Hochul.

(Dkt. No. 29, at 13-15.)21 Plaintiffs assert that the Ex parte

Young exception applies to these Defendants. (Dkt. No.

33, at 18-19.)

The Eleventh Amendment generally prohibits lawsuits

against a state without that state’s consent. Seminole Tribe

of Fla. v. Florida, 517 U.S. 44, 54, 116 S. Ct. 1114, 134 L.

Ed. 2d 252 (1996). This prohibition extends to individuals

sued for damages in their capacities as state officials.

Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (citing

Kentucky v. Graham, 473 U.S. 159, 169, 105 S. Ct. 3099,

87 L. Ed. 2d 114 (1985)). However, under the Supreme

21. Defendants do not dispute the propriety of Defendants

Nigrelli and Rosado. (Id.)

30a

Appendix B

Court’s decision in Ex parte Young, “[a] plaintiff may avoid

the Eleventh Amendment bar to suit and proceed against

individual state officers, as opposed to the state, in their

official capacities, provided that [the] complaint (a) ‘alleges

an ongoing violation of federal law’ and (b) ‘seeks relief

properly characterized as prospective.’” In re Deposit Ins.

Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quoting Verizon

Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,

645, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002)). For this

exception to apply, “the state officer against whom a suit is

brought ‘must have some connection with the enforcement

of the act’ that is in continued violation of federal law.” In

re Dairy Mart Convenience Stores, Inc., 411 F.3d 367,

372-73 (2d Cir. 2005) (quoting Ex parte Young, 209 U.S.

123, 154, 157, 28 S. Ct. 441, 52 L. Ed. 714 (1908)). A state

official’s general duty to execute the laws is not sufficient

to make [the official] a proper party.” Roberson v. Cuomo,

524 F. Supp. 3d 196, 223 (S.D.N.Y. 2021); see also Warden

v. Pataki, 35 F. Supp. 2d 354, 359 (S.D.N.Y. 1999), aff’d sub

nom. Chan v. Pataki, 201 F.3d 430 (2d Cir. 1999). Nor is

a state attorney general a proper party absent a specific

connection to the enforcement of the challenged laws. See

Chrysafis v. James, 534 F. Supp. 3d 272, 290 (E.D.N.Y.

2021); see also Mendez v. Heller, 530 F.2d 457, 460 (2d

Cir. 1976). Plaintiffs assert that Defendants Hochul and

James are “architects of the [challenged laws] . . . driving

passage of the [laws], using public outlets to promote the

cause . . . and a campaign of animus against those who

support the Second Amendment and the U.S. Supreme

Court.” (Dkt. No. 33, at 19.) These vague connections, and

other similarly tenuous connections Plaintiffs allege, are

wholly insufficient to establish any connection between

31a

Appendix B

Defendants Hochul and James and the enforcement of the

New York laws at issue. See Roberson, 524 F. Supp. 3d at

223; Chrysafis, 534 F. Supp. 3d at 290; see also Antonyuk

v. Hochul, No. 22-cv-0986, 2022 U.S. Dist. LEXIS 201944,

at *114-19, 2022 WL 16744700, at *39-40 (N.D.N.Y. Nov.

7, 2022) (dismissing Hochul as a defendant in an action

challenging New York firearms provisions for violating

the Second and Fifth Amendments because “Hochul would

[not] be the individual who may provide [the plaintiffs]

the (legal) relief they seek”). Accordingly, Plaintiffs have

failed to show a likelihood of success as to their claims

against Defendants Hochul and James.

b. Federal Pre-emption

Plaintiffs allege that certain provisions of the New

York laws “are illegal and/or expressly pre-empted under

federal law.” (Dkt. No. 13-11, at 24.) Defendants argue

that Plaintiffs show no likelihood of succeeding on their

pre-emption claim because there is no conflict between

the New York provisions at issue and the federal statutes

and regulations cited by Plaintiffs. (Dkt. No. 29, at 15.)

The laws of the United States are the “supreme Law

of the Land.” U.S. Const. art. VI, cl. 2. Therefore, “state

laws that conflict with federal law are ‘without effect.’”

Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 479-80, 133 S.

Ct. 2466, 186 L. Ed. 2d 607 (2013) (quoting Maryland v.

Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 68 L. Ed.

2d 576 (1981)). In other words, “state laws that require a

private party to violate federal law are preempted.” Id.

at 475 (quoting Maryland, 451 U.S. at 746). A state law

32a

Appendix B

is pre-empted when (1) Congress has defined “explicitly

the extent to which its enactments pre-empt state law

. . . through explicit statutory language”; (2) the state

law at issue “regulates conduct in a field that Congress

intended the Federal Government to occupy exclusively”;

or (3) the state law at issue “actually conflicts with federal

law . . . [so that] it is impossible for a private party to

comply with both state and federal requirements.” See

English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S. Ct.

2270, 110 L. Ed. 2d 65 (1990).

Plaintiffs suggest that their pre-emption claim relies

on one federal statute, 18 U.S.C. § 926, and one federal

regulation, 28 C.F.R. § 25.11(b), 22 (Dkt. No. 1, at 118),

although they cobble together other federal statutes and

regulations when 18 U.S.C. § 926 and 28 C.F.R. § 25.11(b)

are clearly not in conflict with a challenged provision,

(Dkt. No. 13-11, at 10-15). Plaintiffs claim that certain New

York laws “expressly [] violate federal prohibitions under

18 U.S.C. §§ 926 and 927” and that “[o]thers fail under

implied pre-emption through conflict impossibility and

obstacle.” (Dkt. No. 1, ¶ 130.) But Congress has limited

Plaintiffs to demonstrating pre-emption only where there

is an actual conflict between state and federal law. See 18

U.S.C. § 927. Section 927 reads:

No provision of this chapter shall be construed

as indicating an intent on the part of the

22. The federal regulations Plaintiffs cite in support of their

pre-emption claim are contained in 28 C.F.R. subpart A, which

derives its authority from the Brady Handgun Violence Prevention

Act, codified at 18 U.S.C. § 921 et seq.

33a

Appendix B

Congress to occupy the field in which such

provision operates to the exclusion of the law

of any State on the same subject matter, unless

there is a direct and positive conflict between

such provision and the law of the State so that

the two cannot be reconciled or consistently

stand together.

“Given that Congress specifically preserved such

authority for the States, it stands to reason that

Congress did not intend to prevent the States from using

appropriate tools to exercise that authority.” Chamber of

Com. v. Whiting, 563 U.S. 582, 600-01, 131 S. Ct. 1968, 179

L. Ed. 2d 1031 (2011). Thus, Plaintiffs must demonstrate

that there exists a “direct and positive conflict between

[federal law] and the law of the State so that the two

cannot be reconciled or consistently stand together.” See

18 U.S.C. § 927; see also English, 496 U.S. at 79; Fla. Lime

& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43,

83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963). They fail to do so.

The New York laws that Plaintiffs allege are preempted—“Group A”—deal generally with the security

of firearms in the possession of firearms dealers, see

N.Y. Gen. Bus. §§ 875-b(1), (2), and the maintenance and

certification of firearms compliance records, see N.Y. Gen.

Bus. §§ 875-f, 875-g(1)(b). These laws are contained in N.Y.

Gen. Bus. art. 39-BB. 23

23. Plaintiffs also challenge as pre-empted two other New

York laws—N.Y. Exec. § 228 and N.Y. Penal § 400.02(2)—that are

not contained in N.Y. Gen. Bus. art. 39-BB. (Dkt. No. 1, ¶ 131; Dkt.

No. 13-11, at 15.) These provisions are discussed separately below.

34a

Appendix B

The New York laws regulating the security of firearms

in the possession of firearms dealers require that “[e]very

dealer . . . implement a security plan for securing firearms,

rifles and shotguns, including firearms, rifles and shotguns

in shipment.” N.Y. Gen. Bus. § 875-b(1). That plan must

include storage of firearms outside of business hours “in

a locked fireproof safe or vault on the dealer’s business

premises or in a secured and locked area on the dealer’s

business premises” and storing ammunition “separately

from firearms . . . and out of reach of customers.” Id.

Plaintiffs contend that this would “allow the Plaintiffs

to determine shipping liability, a matter of regulation

comprehensively covered by federal law to facilitate interstate commerce between FFLs nationwide,” (Dkt. No. 1311, at 12-13 (citing 27 C.F.R. §§ 478.122, 478.123, 478.125)),

and that this “expressly contradicts federal firearms

compliance law.” (Dkt. No. 1, ¶ 137.) The regulations

Plaintiffs cite prescribe the records to be recorded and

kept by firearms dealers, licensed importers, and licensed

collectors. See 27 C.F.R. §§ 478.122, 478.125. They plainly

do not regulate the conduct described in N.Y. Gen. Bus.

§ 875-b(1) and are therefore not in conflict.

The New York laws regulating the security of firearms

further require that a firearms dealer’s “business

premises . . . be secured by a security alarm system that

is installed and maintained by a security alarm operator”

that monitors “all accessible openings, and partial motion

and sound detection at certain other areas of the premises”

and “a video recording device at each point of sale and each

entrance and exit to the premises, which shall be recorded

from both the indoor and outdoor vantage point and shall

35a

Appendix B

maintain such recordings for a period of not less than two

years.” N.Y. Gen. Bus. § 875-b(2). Plaintiffs’ chief preemption concern as regards this provision relies on the

contention that it allows someone with a criminal record

to be the operator of the security alarm system. (Dkt. No.

13-11, at 13.) That contention appears to be accurate, see

N.Y. Gen. Bus. § 69-o, but it is also irrelevant. Plaintiffs

assert that 18 U.S.C. § 922(h) prohibits firearms dealers

from hiring anyone with a criminal record, (Dkt. No.

13-11, at 13), but it does not. Rather, § 922(h) prohibits

any employee of a person who is disqualified from

possessing firearms under 18 U.S.C. § 922(g), including

someone “convicted in any court of[] a crime punishable

by imprisonment for a term exceeding one year,” from

“receiv[ing], possess[ing], or transport[ing] any firearm or

ammunition in or affecting interstate or foreign commerce

. . . [or] receiv[ing] any firearm or ammunition which

has been shipped or transported in interstate or foreign

commerce” 18 U.S.C. § 922(h). That is, the employee of a

disqualified person cannot possess firearms in the course

of employment with the disqualified person. Id.; see also

United States v. Lahey, 967 F. Supp. 2d 731, 738-39

(S.D.N.Y. 2013). Thus, N.Y. Gen. Bus. § 875-b(2) and 18

U.S.C. § 922(h) are not in conflict. 24

24. Plaintiffs’ apparent belief that 18 U.S.C. § 922(h) prohibits

a firearms dealer from hiring someone who has been convicted of a

felony is incorrect. But even if that belief were correct, or if a separate

federal law proscribed such conduct, there is no conflict between the

state and federal provisions because there is no suggestion that the

security alarm operator would ever receive, possess, or transport

any firearm or ammunition. See N.Y. Gen. Bus. § 875-b(2).

36a

Appendix B

The New York laws regulating the maintenance and

certification of compliance records require that “[e]very

dealer . . . establish and maintain a book[] or [electronic]

record of purchase, sale, inventory, and other records at

the dealer’s place of business in such form and for such

period as the superintendent shall require, and shall

submit a copy of such records to the New York state police

every April and October.” N.Y. Gen. Bus. § 875-f. Plaintiffs

contend that this law “would require the Plaintiffs to copy

and transmit all entries from their federal A&D Book to

the Defendant NYS Police,” or “would require Plaintiffs

to create records . . . which plagiarize[] federal firearms

compliance laws.” (Dkt. No. 13-11, at 10-12.) Either

requirement, Plaintiffs claim, necessitates Plaintiffs

violating 18 U.S.C. § 926. (Dkt. No. 13-11, at 10-12.)

Neither claim is accurate. The New York law plainly

does not require transmitting any or all entries from a

dealer’s federal acquisition and disposition book. 25 See N.Y.

Gen. Bus. § 875-f. It requires the creation of records as

prescribed by New York law. See id. But if section 875-f

did require transmitting federal records, Plaintiffs are

incorrect in asserting that such conduct is prohibited by

federal law. The federal statute on which Plaintiffs rely

states (in relevant part):

The Attorney General [of the United States]

may prescribe only such rules and regulations

as are necessary to carry out the provisions

of this chapter . . . . No such rule or regulation

25. For relevant federal acquisition and disposition recordkeeping requirements, see 18 U.S.C. § 923(g)(1)(A); 27 C.F.R.

§ 478.125(e).

37a

Appendix B

prescribed after the date of the enactment

of the Firearms Owners’ Protection Act [of

1986] may require that records required to be

maintained under this chapter or any portion

of the contents of such records, be recorded at

or transferred to a facility owned, managed, or

controlled by the United States or any State or

any political subdivision thereof, nor that any

system of registration of firearms, firearms

owners, or firearms transactions or dispositions

be established.

18 U.S.C. § 926(a). The “rule[s] or regulation[s]” controlled

by this section are only those prescribed by the Attorney

General of the United States. See id. Thus, this statute

may be read as stating:

The Attorney General [of the United States]

may prescribe . . . [n]o . . . rule or regulation

. . . [that] require[s] that records required to be

maintained under this chapter . . . be recorded

at or transferred to a facility owned, managed,

or controlled by [New York], nor that any

system of registration of firearms, firearms

owners, or firearms transactions or dispositions

be established.

Id. This does not conflict whatsoever with a New York official

prescribing a regulation requiring that records kept under

federal law be transmitted to, for instance, the New York

State Police. See id.; 18 U.S.C. § 927. Nor does it conflict

with a New York official creating a system of registration

38a

Appendix B

for firearms or firearms transactions and dispositions

even if the information recorded is substantially similar

to, or, as Plaintiffs put it, “plagiarizes,” (Dkt. No. 13-11,

at 12), federal firearms registration information. See 18

U.S.C. § 926(a), 927; N.Y. Gen. Bus. § 875-f; see also Haw.

Rev. Stat. § 134-3 (creating a registration system for all

firearms under the supervision of the Attorney General

of Hawaii); Cal. Penal §§ 11106, 28100, 28155 (creating a

database of information pertaining to the sale or transfer

of certain firearms under the supervision of the Attorney

General of California). That the Attorney General of the

United States is prohibited from engaging in conduct that

is specifically reserved to the states by federal law has no

bearing on the ability of state officials to engage in that

conduct. See 18 U.S.C. §§ 926(a), 927. This is a hallmark

of federalism. See, e.g., Gonzales v. Raich, 545 U.S. 1,

74, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005) (Thomas, J.,

dissenting) (“Our federalist system, properly understood,

allows [states] to decide for themselves how to safeguard

the health and welfare of their citizens.”). Thus, Plaintiffs

have failed to demonstrate any conflict between N.Y. Gen.

Bus. § 875-f and 18 U.S.C. § 926. 26

Plaintiffs further contend that N.Y. Gen. Bus. § 875g(1)(b), which requires “[e]very dealer [to] . . . annually

certify to the superintendent [of the New York State

26. Plaintiffs’ specific pre-emption contentions about certain

subsections of N.Y. Gen. Bus. § 875-f—namely N.Y. Gen. Bus. § 875f(2), which requires a monthly “inventory check” of firearms not yet

disposed of, and N.Y. Gen. Bus. § 875-f(3), which allows access of the

records to government agencies and firearms manufacturers, (Dkt.

No. 13-11, at 11-12)—are without merit for the same reasons.

39a

Appendix B

Police] that such dealer has complied with all of the

requirements of this article,” leaves Plaintiffs with “no

legal pathway . . . [t]o comply with the [New York] laws

[without] . . . violati[ng] . . . federal laws,” (Dkt. No. 1311, at 14). Plaintiffs do not suggest any specific federal

law pre-empts N.Y. Gen. Bus. § 875-g(1)(b) except the

Fifth Amendment. (Dkt. No. 13-11, at 13-14.) The Court

addresses Plaintiffs’ Fifth Amendment claim below

outside the pre-emption context but finds that Plaintiffs

have otherwise failed to demonstrate any positive and

direct conflict between N.Y. Gen. Bus. § 875-g(1)(b) and

federal law.

Finally, Plaintiffs tack on to their pre-emption claim

two additional New York laws outside of N.Y. Gen. Bus.

art. 39-BB. The first, N.Y. Exec. § 228, 27 makes New

York “a state point of contact for implementation of 18

U.S.C. sec. 922(t), all federal regulations and applicable

guidelines adopted pursuant thereto, and the national

instant criminal background check system [(“NICS”)]

for the purchase of firearms and ammunition.” Plaintiffs

do not address this claim in their memorandum of law

in support of their motion for a temporary restraining

order and preliminary injunction, but state in their

complaint, without federal statutory support, that this

provision is “a scheme to grab firearms background check

information and to retain the records, share the records

among Executive Branch offices and agencies, and to use

the records for purposes beyond the firearms purchase

27. This provision does not take effect until July 15, 2023. See

S.B. S51001, 2020 Sen., 2021-22 Extraordinary Leg. Sess. (N.Y.

2022); N.Y. Exec. § 228.

40a

Appendix B

background check defined at federal law.” (Dkt. No. 1,

¶ 136.) Plaintiffs provide no basis for these allegations.

What is more, N.Y. Exec. § 228, which transfers the duty

to complete a background check from the firearms dealer

to the State, is a state law precisely contemplated by, not

in conflict with, federal law. See 18 U.S.C. § 922(t)(3); 28

C.F.R. § 25.9(d)(1); see also Abramski v. United States,

573 U.S. 169, 172 n.1, 134 S. Ct. 2259, 189 L. Ed. 2d 262

(2014) (“The principal exception [to the requirement that a

firearms dealer contact NICS] is for any buyer who has a

state permit that has been ‘issued only after an authorized

government official has verified’ the buyer’s eligibility to

own a gun under both federal and state law.” (quoting

18 U.S.C. § 922(t)(3))). 28 Thus, Plaintiffs have failed to

demonstrate any conflict between N.Y. Exec. § 228 and

federal law.

Plaintiffs also suggest that N.Y. Penal § 400.02(2),

which creates a “statewide license and record database

specific for ammunition sales,” is pre-empted by 28 C.F.R.

§§ 25.1, 25.6. (Dkt. No. 13-11, at 15.)29 But the regulations

Plaintiffs rely on specifically state that “[a]ccess to the

NICS Index for purposes unrelated to NICS background

checks pursuant to 18 U.S.C. 922(t) shall be limited to

uses for the purposes of . . . [p]roviding information to

28. Indeed, as of November 2021, at least thirteen states

serve as the point of contact for NICS for all firearms background

checks. See Fed. Bureau of Investigation, National Instant Criminal

Background Check System Participation Map, http://www.fbi.gov/

about-us/cjis/nics/general-information/participation-map.

29. Plaintiffs did not allege in their complaint that N.Y. Penal

§ 400.02(2) is pre-empted by federal law. (Dkt. No. 1.)

41a

Appendix B

. . . state . . . criminal justice agencies in connection with

the issuance of a firearm-related . . . permit or license.”

28 C.F.R. § 25.6(j). Plaintiffs do not demonstrate that

the purpose of N.Y. Penal § 400.02(2) is “unrelated to

NICS background checks.” See 28 C.F.R. § 25.6. Nor

do they demonstrate that N.Y. Penal § 400.02(2) has a

purpose other than “[p]roviding information to . . . state

. . . criminal justice agencies in connection with the

issuance of a firearm-related . . . permit or license.” See

28 C.F.R. § 25.6. More importantly, N.Y. Penal § 400.02(2)

does not require use of the NICS, but rather prescribes

the creation of a “statewide . . . database.” Thus, Plaintiffs

have failed to demonstrate any conflict between N.Y. Penal

§ 400.02(2) and 28 CFR §§ 25.1, 25.6.

Plaintiffs have wholly failed to demonstrate that any

of the challenged laws “actually conflict[] with federal law

. . . [so that] it is impossible for [Plaintiffs] to comply with

both state and federal requirements.” See English, 496

U.S. at 79. Accordingly, Plaintiffs have not demonstrated

a likelihood of success on the merits of their federal preemption claim.

Constitutional Challenges

Second Amendment

Plaintiffs allege that certain provisions of the New

York laws amount to “near total denial of the Plaintiffs’

and all New York residents’ Second Amendment rights.”

(Dkt. No. 13-11, at 21.) Defendants argue that the Second

Amendment does not apply to corporations, that even if

42a

Appendix B

the Second Amendment did apply to corporations, the

laws at issue do not implicate the Second Amendment,

and that even if the laws at issue did implicate the Second

Amendment, they are historically justified. (Dkt. No. 29,

at 15-25.)

The Second Amendment provides that, “[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. The

Supreme Court has held that the Second Amendment

protects an individual’s right to keep and bear arms for

self-defense. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142

S. Ct. 2111, 2125, 213 L. Ed. 2d 387 (2022). 30 To determine

whether that right is implicated, a court must examine

whether “the Second Amendment’s plain text covers

an individual’s conduct.” See id. at 2129-30. If it does,

“the Constitution presumptively protects that conduct

[and] [t]he government must then justify its regulation

by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.” Id.

Plaintiffs fail to demonstrate that the Second

Amendment’s plain text covers the conduct regulated

by the st atut or y prov isions at issue. Pla i nt i f fs

are “corporations, single-member LLCs, [] [s]ole

[p]roprietorships, and . . . Federal Firearms Licensees

with [the individual] Plaintiffs being ‘Responsible Persons’

for such businesses.” (Dkt. No. 13-11, at 22.) Plaintiffs

30. “Strictly speaking, [states] [are] bound to respect the right

to keep and bear arms because of the Fourteenth Amendment, not

the Second.” Id. at 2137.

43a

Appendix B

contend that, since a federal statutory firearms law

defines “person” “[to] include any individual, corporation,

company, association, firm, partnership, society, or joint

stock company,” 18 U.S.C. § 921(a)(1), and since the

Supreme Court has recognized “that First Amendment

protection extends to corporations,” (Dkt. No. 13-11, at 23

(citing Citizens United v. FEC, 558 U.S. 310, 130 S. Ct.

876, 175 L. Ed. 2d 753 (2010); First Nat’l Bank of Boston v.

Bellotti, 435 U.S. 765, 778 n.14, 98 S. Ct. 1407, 55 L. Ed. 2d

707 (1978))), “Plaintiffs’ businesses should receive the same

level of protection,” (id.). This argument is unavailing.

Justice Thomas explicitly stated the holding of N.Y.

State Rifle & Pistol Ass’n v. Bruen twice: “[W]hen the

Second Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects that

conduct.” 142 S. Ct. at 2126, 2129-30. Plaintiffs fail to

present any support for their contention that the individual

right secured by the Second Amendment applies to

corporations or any other business organizations. It does

not. See District of Columbia v. Heller, 554 U.S. 570,

592, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) (“Nowhere

else in the Constitution does a ‘right’ attributed to ‘the

people’ refer to anything other than an individual right. . . .

[W]e find that [the Second Amendment] guarantee[s] the

individual right to possess and carry weapons in case

of confrontation.”). Moreover, the Second Amendment’s

“operative clause”—”the right of the people to keep and

bear Arms shall not be infringed”—makes no mention of

buying, selling, storing, shipping, or otherwise engaging

in the business of firearms. See N.Y. State Rifle & Pistol

Ass’n v. Bruen, 142 S. Ct. at 2134. Indeed, none of the

44a

Appendix B

“trilogy” of cases cited by Plaintiffs—N.Y. State Rifle

& Pistol Ass’n v. Bruen, McDonald v. City of Chicago,

and District of Columbia v. Heller—“cast[s] doubt on

. . . laws imposing conditions and qualifications on the

commercial sale of arms.” N.Y. State Rifle & Pistol Ass’n

v. Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring);

McDonald v. City of Chicago, 561 U.S. 742, 786, 130 S.

Ct. 3020, 177 L. Ed. 2d 894 (2010); Heller, 554 U.S. at 62627. Plaintiffs have not cited any authority supporting a

Second Amendment right for an individual or a business

organization to engage in the commercial sale of firearms.

Thus, Plaintiffs have not demonstrated a likelihood of

success on the merits of their Second Amendment claim.

ii. Fourteenth Amendment

Plaintiffs allege that certain provisions of the New

York laws violate the Fourteenth Amendment because

they “are so vague as to be unintelligible and highly likely

to result in random and irregular prosecutions.” (Dkt.

No. 13-11, at 17.) Defendants contend that this challenge

“fails at the outset because ‘it is obvious in this case that

there exist numerous conceivably valid applications of’

the challenged statutes.” (Dkt. No. 29, at 33 (quoting

Richmond Boro Gun Club, Inc. v. City of New York, 97

F.3d 681, 684 (2d Cir. 1996)).)

The Fourteenth Amendment prohibits any state from

“depriv[ing] any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1. A state

“violates this guarantee by taking away someone’s life,

liberty, or property under a criminal law so vague that

45a

Appendix B

it fails to give ordinary people fair notice of the conduct

it punishes, or so standardless that it invites arbitrary

enforcement.” Johnson v. United States, 576 U.S. 591, 595,

135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015) (citing Kolender v.

Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d

903 (1983)). Statutes that impose criminal penalties “are

subject to a ‘more stringent’ vagueness standard than are

civil or economic regulations.” N.Y. State Rifle & Pistol

Ass’n v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015) (quoting

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 498-99, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982)).

But such statutes need not contain “‘meticulous specificity’

. . . [since] ‘language is necessarily marked by a degree of

imprecision.’” Id. (quoting Thibodeau v. Portuondo, 486

F.3d 61, 66 (2d Cir. 2007) (Sotomayor, J.)).

As an initial matter, the Court must consider the

nature of the vagueness challenge. “A statute may be

challenged on vagueness grounds either as applied or

on its face.” Thibodeau, 486 F.3d at 67. Plaintiffs do not

clearly indicate which type of challenge they are asserting,

but they do not suggest that they have been faced with

any enforcement action. Therefore, “[b]ecause [P]laintiffs

pursue this pre-enforcement [challenge] before they have

been charged with any violation of law, it constitutes a

facial, rather than as-applied[,] challenge.” Jacoby &

Meyers, LLP v. Presiding Justs. of the First, Second,

Third & Fourth Dep’ts, App. Div. of the Sup. Ct. of N.Y.,

852 F.3d 178, 184 (2d Cir. 2017) (quoting N.Y. State Rifle

& Pistol Ass’n v. Cuomo, 804 F.3d at 265). To succeed on

a facial challenge, Plaintiffs “must establish that no set of

circumstances exists under which the [challenged laws]

46a

Appendix B

would be valid.” N.Y. State Rifle & Pistol Ass’n v. Cuomo,

804 F.3d at 265 (quoting United States v. Salerno, 481 U.S.

739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)). This

high bar makes “a facial challenge . . . ‘the most difficult

challenge to mount successfully.’” See id. (quoting Salerno,

481 U.S. at 745).

Plaintiffs challenge differing sets of laws as void for

vagueness in their complaint and memorandum of law in

support of their motion for a temporary restraining order

and preliminary injunction.31 The Court will examine each

challenged provision.

Plaintiffs claim that several provisions of N.Y. Gen.

Bus. art. 39-BB are unconstitutionally vague. Plaintiffs

point to certain phrases in N.Y. Gen. Bus. § 875-b(2) to

support their vagueness claim, asserting that the provision

is unconstitutionally vague because the “‘security alarm

system’ standards provision” requires “the Defendant

NYS Police to ‘establish’ ‘standards for such security

alarm systems’ and [] requires the Defendant NYS Police

to ‘approve’ the ‘security alarm systems.’” (Dkt. No. 1,

¶ 156 (quoting N.Y. Gen. Bus. § 875-b(2)).) 32 Plaintiffs

31. The Court notes that Plaintiffs appear to have inadvertently

omitted the argument that their Group B claim is likely to succeed on

the merits from their memorandum of law in support of their motion

for a temporary restraining order and preliminary injunction. (Dkt.

No. 13-11, at 25.)

32. Plaintiffs do not include N.Y. Gen. Bus. § 875-b(2) in Group

B for their memorandum of law in support of their motion for a

temporary restraining order and preliminary injunction. (Dkt. Nos.

13, 13-11.)

47a

Appendix B

similarly claim N.Y. Gen. Bus. § 875-e is unconstitutionally

vague because “the ‘employee training’ program and

documentation . . . is to be ‘developed by the superintendent’

and is to be ‘[made] available to each dealer,’ in accordance

with minimum topics set out in N.Y. Gen. Bus. §§ 875-e(2)

(a)-(e) [sic] plus ‘(f) such other topics the superintendent

deems necessary and appropriate.’” (Dkt. No. 1, ¶ 156

(quoting N.Y. Gen. Bus. §§ 875-e, 875-f).)33 Plaintiffs also

claim that N.Y. Gen. Bus. § 875-f is unconstitutionally

vague because the “provision may confer authority for

the Defendant NYS Police to pr[e]scribe a[n] [acquisition

and disposition book] ‘in such form and for such period

as the superintendent shall require,’ which may differ

from federal regulation” and requires the “creation of a

new monthly inventory reconciliation report for the NYS

Police.” (Dkt. No. 1, ¶ 156 (quoting N.Y. Gen. Bus. § 875f).)34 Plaintiffs further claim that N.Y. Gen. Bus. § 875-g is

unconstitutionally vague because the “annual compliance

certification[‘s] . . . ‘form and content’” and “‘regulations

requiring periodic inspections’ at ‘the premises of every

dealer to determine compliance by such dealer with the

requirements of [article 39-BB] [are to] be promulgated

by the Defendant NYS Police.” (Dkt. No. 1, ¶ 156 (quoting

33. Plaintiffs do not include N.Y. Gen. Bus. § 875-e in Group

B for their memorandum of law in support of their motion for a

temporary restraining order and preliminary injunction. (Dkt. Nos.

13, 13-11.)

34. Plaintiffs do not include N.Y. Gen. Bus. § 875-f in Group B for

their memorandum of law in support of their motion for a temporary

restraining order and preliminary injunction. (Dkt. Nos. 13, 13-11.)

48a

Appendix B

N.Y. Gen. Bus. § 875-g).)35 Finally with regard to N.Y.

Gen. Bus. art. 39-BB, Plaintiffs claim that N.Y. Gen.

Bus. § 875-h is unconstitutionally vague because it allows

“[t]he superintendent [of the New York State Police] [to]

promulgate such additional rules and regulations as the

superintendent shall deem necessary to prevent firearms,

rifles, and shotguns from being diverted from the legal

stream of commerce.” (Dkt. No. 1, ¶ 156 (quoting N.Y.

Gen. Bus. § 875-h).)36

Plaintiffs provide no support for any of these claims

and certainly fail to demonstrate, as they must, that the

provisions “can never be validly applied,” Vt. Rt. to Life

Comm., Inc. v. Sorrell, 758 F.3d 118, 128 (2d Cir. 2014),

either as a result of providing inadequate notice or inviting

arbitrary enforcement, see Johnson, 576 U.S. at 596; see

also Salerno, 481 U.S. at 745. Indeed, each of these claims

centers on the ability of New York agencies, namely the

New York State Police, to promulgate rules, regulations,

or guidance, and with such rules, regulations, or guidance,

there is no suggestion that the provisions will fail to

provide adequate notice or invite arbitrary enforcement.

See Johnson, 576 U.S. at 596; see also Salerno, 481 U.S.

35. Plaintiffs do not include N.Y. Gen. Bus. § 875-g(2) in Group

B for their memorandum of law in support of their motion for a

temporary restraining order and preliminary injunction. (Dkt. Nos.

13, 13-11.)

36. Plaintiffs do not include N.Y. Gen. Bus. § 875-h in Group

B for their memorandum of law in support of their motion for a

temporary restraining order and preliminary injunction. (Dkt. Nos.

13, 13-11.)

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Appendix B

at 745. 37 Plaintiffs fail to advance any argument that this

is improper in the vagueness context, and they fail to

establish a likelihood of success on meeting the high bar

that makes “a facial [vagueness] challenge . . . ‘the most

difficult challenge to mount successfully.’” See N.Y. State

Rifle & Pistol Ass’n v. Cuomo, 804 F.3d at 265 (quoting

Salerno, 481 U.S. at 745). 38

Plaintiffs further challenge various provisions of

N.Y. Penal §§ 400.00, 400.02, 400.03. Plaintiffs contend

37. For example, the superintendent of the New York State

Police is required to provide firearms dealers with an employee

training course that such dealers must provide to all employees.

N.Y. Gen. Bus. § 875-e. There is no indication that such a course is

currently available. However, Plaintiffs suggested at the December 1,

2022, hearing that, pursuant to N.Y. Gen. Bus. § 875-e, they will have

to fire every employee the day the provision goes into effect. This is a

misreading of the law. The statute provides that “all new employees

[shall be provided the training] within thirty days of employment

. . . [and] all existing employees [shall be provided the training]

within ninety days of the effective date of this section.” Id. So long

as the employee training course is timely created, Plaintiffs have

not demonstrated a likelihood of success on their vagueness claim.

38. In the complaint, Plaintiffs raise a similar claim against

N.Y. Penal § 270.22, which restricts the sale of body vests. (Dkt.

No. 1, ¶ 156.) They do not provide any support for this claim in their

memorandum of law in support of their motion for a temporary

restraining order and preliminary injunction (and, in fact, exclude

N.Y. Penal § 270.22 from Group B). (Dkt. Nos. 13, 13-11.) This claim is

not likely to succeed for the same reasons that Plaintiffs’ vagueness

claims against provisions in N.Y. Gen. Bus. art. 39-BB are unlikely to

succeed. Furthermore, no Plaintiff puts forth any allegations that he

or she has attempted or otherwise intends to sell body armor. (Dkt.

No. 13-4, ¶ 18; Dkt. No. 13-7, ¶ 24; Dkt. No. 13-9, ¶ 19.)

50a

Appendix B

that the “classroom and live-fire training curriculum

and certification scheme” created by N.Y. Penal § 400.00

is unconstitutionally vague, (Dkt. No. 1, ¶ 156; Dkt. No.

13-11, at 17), because “Defendants have failed to issue

legally[] required curriculum, testing, and certification

forms,” (Dkt. No. 13-2, ¶ 48), or have otherwise failed to

issue an adequate curriculum, (Dkt. No. 13-3, ¶ 26; Dkt.

No. 13-4, ¶ 24; Dkt. No. 13-5, ¶¶ 32-33; Dkt. No. 13-7,

¶ 71; Dkt. No. 13-8, ¶ 50). Plaintiffs also suggest that the

licensing scheme for purchase of a semi-automatic rifle

created by N.Y. Penal §§ 400.00 is unconstitutionally

vague, (Dkt. No. 1, ¶ 156; Dkt. No. 13-11, at 17), 39 because

“[n]o semi-automatic license is known to have issued or

to be available to request,” (Dkt. No. 1, ¶ 160). Finally,

Plaintiffs allege that ammunition sale record-keeping and

background-check requirements created by N.Y. Penal

§§ 400.02, 400.03 are unconstitutionally vague, (Dkt. No.

1, ¶ 156; Dkt. No. 13-11, at 17),40 but provide no basis for

this argument. Plaintiffs have failed to show a likelihood

of success on any of these arguments.

Plaintiffs acknowledge that the Division of Criminal

Justice Services published a document entitled “Minimum

39. The specific subsections of N.Y. Penal § 400.00 involving

semi-automatic rif le licensing that Plaintiffs include in their

complaint differ from those included in the memorandum of law

in support of their motion for a temporary restraining order and

preliminary injunction. (Dkt. No. 1, ¶ 156; Dkt. No. 13-11, at 17.)

40. The specific sections involving ammunition record-keeping

and background check requirements that Plaintiffs include in their

complaint differ from those included in the memorandum of law

in support of their motion for a temporary restraining order and

preliminary injunction. (Dkt. No. 1, ¶ 156; Dkt. No. 13-11, at 17.)

51a

Appendix B

Standards for New York State Concealed Carry Firearm

Safety Training.” (Dkt. No. 15-2; Dkt. No. 13-3, ¶ 26;

Dkt. No. 13-4, ¶ 25; Dkt. No. 13-5, ¶ 32; Dkt. No. 138, ¶ 50.) Plaintiffs variously contend that this is not a

“curriculum” or is not “course materials.” (Dkt. No. 13-3,

¶ 26; Dkt. No. 13-4, ¶ 25; Dkt. No. 13-5, ¶ 32; Dkt. No. 138, ¶ 50.) While Plaintiffs are correct that the document

is not “course materials,” they are clearly incorrect that

it is not a curriculum: the document includes a section

titled “Minimum Standards for Classroom Training

Curriculum” that includes twelve separate topics and

how much time should be devoted to each; a section titled

“Minimum Standards for Written Proficiency Test”

that describes standards for the proficiency test to be

developed by instructors and states that instructors must

retain records of such tests; a section titled “Minimum

Standards for Live-Fi

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