Professional Documents
Culture Documents
Lewis v. Cuomo WNDY May 15, 2020
Lewis v. Cuomo WNDY May 15, 2020
BRANDON LEWIS.
THE FIRING PIN, LLC.
SHANNON JOY,
JAMES OSTROWSKI
STEPHEN FELANO,
DUANE WHITMER,
SETH DUCLOS,
LISA REEVES, d/b/a, Big Red Barber Shop, 20-CV-00583
May 15, 2020
Plaintiffs,
COMPLAINT
v.
Defendants.
______________________________________________________________________________
“Some truths are so basic that, like the air around us, they are easily overlooked.
Much of the Constitution is concerned with setting forth the form of our
government, and the courts have traditionally invalidated measures deviating from
that form. The result may appear "formalistic" in a given case to partisans of the
measure at issue, because such measures are typically the product of the era's
perceived necessity. But the Constitution protects us from our own best intentions:
It divides power among sovereigns and among branches of government precisely
so that we may resist the temptation to concentrate power in one location as an
expedient solution to the crisis of the day.”
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, the Plaintiffs hereby
INTRODUCTION
1. This is an action to vindicate the right of the plaintiffs to exercise various rights,
including natural rights, protected by the United States Constitution, including the
right of public and religious assembly under the First Amendment, the right to
keep and bear arms under the Second Amendment, the right to be free from
unlawful seizures under the Fourth Amendment, the right to operate a business
under the Fifth and Fourteenth Amendments, and the right secured by the Fifth,
2
Ninth, Tenth and Fourteenth Amendments and the Guarantee Clause to be free of
(Covid-19) pandemic.
2. The Governor and the Legislature have used a serious pandemic as an excuse to
revoke a long list of natural rights of the people of the State, which rights are
unalienable and guaranteed by the United States Constitution. These natural rights
3. They have done this while the state courts were basically closed for business and
while the President and Congress, both of which have the authority to intervene in
4. This is a petition within the meaning of the First Amendment for a redress of
5. To the extent that the defendants will argue in their defense that these
circumstances justify their emergency powers, they are in effect arguing that the
American people lack the intellectual and moral competence to govern their own
basis for the very same constitution these defendants will claim as the basis for
6. The regime that has been in place in New York and many other states in the last
1
See, the Declaration of Independence.
3
whose origins date back at least to circa 1650 England. That form of government
is based on pre-existing natural rights which the regime may never violate on pain
7. Those powers may not be inflated by officials who are themselves subordinate to
8. If this new regime is allowed to persist by the courts and by federal officials, that
very courts whose function was supposed to be to preserve and protect natural
government itself.
9. To be blunt, a bloodless coup against the constitution has been undertaken by the
State itself.
10. The basic question then before this Court is whether the coup will be successful or
will fail.
14. If so, the question then arises, why do the American people have any obligation to
2
Algernon Sydney, Discourses Concerning Government (1698).
4
PARTIES
15. The plaintiff BRANDON LEWIS at all times hereinafter mentioned was and still
is a resident of the Town of Sweden, located within the County of Monroe and the
16. He is the sole owner of THE FIRING PIN, LLC., a limited liability company op-
erating under the laws of New York State with offices in the Town of Bergen, lo-
cated within the County of Genesee and the State of New York.
17. The plaintiff SHANNON JOY at all times hereinafter mentioned was and still is a
resident of the Town of Fairport, located within the County of Monroe and the
18. The plaintiff JAMES OSTROWSKI at all times hereinafter mentioned was and
still is a resident of the City of Buffalo, located within the County of Erie and the
19. The plaintiff STEPHEN FELANO at all times hereinafter mentioned was and still
is a resident of the Town of Amherst, located within the County of Erie and the
20. The plaintiff DUANE WHITMER at all times hereinafter mentioned was and still
is a resident of the Town of Hamburg, located within the County of Erie and the
21. The plaintiff SETH DUCLOS at all times hereinafter mentioned was and still is a
resident of the Town of West Henrietta, located within the County of Monroe and
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22. The plaintiff LISA REEVES at all times hereinafter mentioned was and still is a
23. Defendant ANDREW M. CUOMO is the Governor of the State of New York
24. Defendant LATITIA JAMES is the Attorney General of the State of New York
25. Defendant KEITH M. CORLETT is Superintendent of the New York State Police
27. He is also a judge but is not acting in a judicial capacity when issuing permits.
29. Licensing officers in New York State, in addition to determining applications for
applicants and work closely with various police agencies in monitoring the
behavior of permit holders, applicants and those whose permits have been
suspended.
30. Licensing officers also act as prosecutors of permit applicants and those whose
31. Thus, licensing officers do not act in a judicial capacity but rather their duties
6
32. On information and belief, licensing officers routinely receive information and
permit.
33. Defendant TODD K. BAXTER is the Sheriff of Monroe County whose principal
34. JAMIE ROMEO is Monroe County Clerk and is in charge of the Monroe County
and is a business corporation formed and existing under the laws of the State of
New York with authority to determine which are “essential services” delegated to
it under New York’s Executive Order No. 202.6, one of the Executive Orders
37. All Defendants herein are being sued individually and in their official capacities.
JURISDICTION
38. Jurisdiction is founded on 28 U.S.C. § 1331 because this action arises under the
Constitution and laws of the United States, and under 28 U.S.C. § 1343(a)(3) as
this action seeks to redress the deprivation, under of color of the laws, statutes,
ordinances, regulations, customs and usages of the State of New York, of rights,
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39. This action seeks relief pursuant to 28 U.S.C. §§ 2201, 2202, 42 U.S.C. § 1983.
41. On March 2, 2020, apparently in response to the Coronavirus, the New York State
Legislature passed a bill amending Section 29-a of the Executive Law to increase
42. On information and belief, there was no debate, no prior public notice, and no
media coverage.
43. The bill was rushed through in record time with a message of necessity from the
Governor and was signed into law by him the very next day.
44. Based on that process, the Legislature purported to give the Governor power to
rule by decree and the Governor has used that power to impose the greatest
“The governor, by executive order, may issue any directive during a state
disaster emergency declared in the following instances: fire, flood, earth-
quake, hurricane, tornado, high water, landslide, mudslide, wind, storm,
wave action, volcanic activity, epidemic, disease outbreak, air contami-
nation, terrorism, cyber event, blight, drought, infestation, explosion, radi-
ological accident, nuclear, chemical, biological, or bacteriological re-
lease, water contamination, bridge failure or bridge collapse. Any such di-
rective must be necessary to cope with the disaster and may provide for
procedures reasonably necessary to enforce such directive.”
46. On March 7, 2020, the Governor issued executive Order No. 202 and de-
47. On March 16, 2020, the Governor issued Executive Order No. 202.3
8
“Any restaurant or bar in the state of New York shall cease serving pa-
trons food or beverage on-premises effective at 8 pm on March 16, 2020,
and until further notice shall only serve food or beverage for off-premises
consumption. Notwithstanding any provision of the alcohol and beverage
control law, a retail on-premises licensee shall be authorized for the dura-
tion of this Executive Order to sell alcohol for off-premises consumption,
which shall include either take-out or delivery, subject to reasonable limi-
tations set by the State Liquor Authority.”
“Any gym, fitness centers or classes, and movie theaters shall also cease
operation effective at 8 pm on March 16, 2020 until further notice.”
48. On March 18, 2020, the Governor issued Executive Order No. 202.5
“Effective at 8 p.m. March 19, 2020, all indoor common portions of retail
shopping malls with in excess of 100,000 square feet of retail space avail-
able for lease shall close and cease access to the public. Any stores located
within shopping malls, which have their own external entrances open to
the public, separate from the general mall entrance, may remain open, sub-
ject to the requirements of Executive Order 202.3 that any restaurant shall
limit itself to take out or delivery food services, and that any interior en-
trances to common areas of the mall remain closed and locked.
49. Executive Order No. 202.7 issued on March 19, 2020, closed all barber
shops and hair salons, effective March 21, 2020, at 8:00 p.m.
50. On March 20, 2020, the Governor issued Executive Order No. 202.8
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by 100% no later than March 22 at 8 p.m. Any essential business or entity
providing essential services or functions shall not be subject to the in-per-
son restrictions. An entity providing essential services or functions
whether to an essential business or a non-essential business shall not be
subjected to the in-person work restriction, but may operate at the level
necessary to provide such service or function. Any business violating the
above order shall be subject to enforcement as if this were a violation of
an order pursuant to section 12 of the Public Health Law.”
52. On March 23, 2020, the Governor issued Executive Order No. 202.10
for any reason (e.g. parties, celebrations or other social events) are can-
54. On March 27, 2020, the Governor issued Executive Order No. 202.11
10
jurisdiction in which the facility or space is located is authorized to issue
an appearance ticket, a Notice of Violation, an Order to Remedy such
violation, which shall require immediate compliance, and/or a Do Not
Occupy Order to any owner, operator, or occupant of any such facility or
space. Nothing in this provision shall limit the authority of any
governmental unit or agency to take such other and/or additional
enforcement actions to the extent necessary to ensure compliance with
such occupancy-related directives or facility operation-related directives.”
55. On March 30, 2020, the Governor issued Executive Order No. 202.13
which continued Order Nos. 202.3, 202.4, 202.5, 202.6, 202.7 202.8,
56. On April 7, 2020, the Governor issued Executive Order No. 202.14 which
stated in part:
“By virtue of Executive Orders 202.3, 202.4, 202.5, 202.6, 202.7, 202.8,
202.10, 202.11, and 202.13 which closed or otherwise restricted public or
private businesses or places of public accommodation, and which required
postponement or cancellation of all non-essential gatherings of individuals
of any size for any reason (e.g. parties, celebrations, games, meetings or
other social events), all such Executive Orders shall be continued, pro-
vided that the expiration dates of such Executive Orders shall be aligned,
such that all in-person business restrictions and workplace restrictions will
be effective until 11:59 p.m. on April 29, 2020, unless later extended by a
future Executive Order.
57. On April 15, 2020, the Governor issued Executive Order No. 202.17
“Effective at 8 p.m. on Friday, April 17, 2020 any individual who is over
age two and able to medically tolerate a face-covering shall be required to
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cover their nose and mouth with a mask or cloth face-covering when in a
public place and unable to maintain, or when not maintaining, social dis-
tance.”
58. On April 16, 2020, the Governor issued Executive Order No. 202.18
59. On May 7, 2020, the Governor extended the lockdown until June 6, 2020.
60. At a press conference on May 11, 2020, the Governor stated that he was,
committees and officials, who would then have vast discretion to continue
61. There are indications that some portion of the State may partially reopen
on May 15, 2020, however, this policy does not apply to barber shops.
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62. Guidance as to the reopening of gun stores has been unclear, however, it
has been alleged that gun stores in the Finger Lakes region, which in-
64. Moreover, it has also been alleged that local law enforcement officials
65. That being the case, it is essential that this Court issue injunctive and de-
LEWIS’s rights and provide him with legal guidance so he can avoid ar-
66. Thus, the Governor has now unlawfully delegated the very same legisla-
tive powers that were unlawfully delegated to him, all in violation of due
68. It is clear that the result of this chaotic and illegal redistribution of legisla-
has and will create hopeless confusion about which constitutional rights
13
citizens can exercise at any given time and creates the grave risk of ram-
69. The legal ground is constantly shifting beneath the feet of the plaintiffs,
70. The Governor further stated on May 11th that any regional opening could
71. On May 14, 2020, the Governor once against extended the majority of the
lockdown until either May 28, 2020, or June 13, 2020, depending on how
72. The same order formalized what the Governor stated on May 11, 2020,
73. However, the lockdown has been repeatedly extended and there is no as-
surance that it will not be extended again and again or modified but with
74. Further, without the relief requested herein, the Governor could at any
time reimpose the lockdown on flimsy evidence, on the basis of the virus,
response to “terrorism.”
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76. There is no scientific definition of “terrorism” and anti-lockdown protest-
ers have already been accused of being terrorists while acting peacefully
77. The combined effect of these unlawful orders (not the virus itself), repli-
cated in numerous other states, has been the most massive violation of the
lion of dollars borrowed, in effect, from young people and people yet to be
born.
78. The failure to respect our constitutional rights has led to a catastrophe with
power into the hands of one highly fallible person, utterly unfamiliar with
people, whose errors are then magnified throughout the State in a manner
not been flouted. New York v. United States, 505 U. S. 144 (1992); F. A.
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BRANDON LEWIS/THE FIRING PIN, LLC.
80. Brandon Lewis is the sole owner of The Firing Pin, LLC, in Bergen, New York,
81. As a result of the Governor’s order requiring “nonessential” firms to reduce their
workforce by 100 percent, he was forced to close his business at the cost of many
82. To ensure gun stores remain closed, Governor Cuomo launched his own unofficial
police force on April 1st, 2020, under the euphemism ‘New York State PAUSE
83. Mr. Lewis captivated the nation when he attended the highly-publicized Second
Amendment civil rights rally in Richmond, Virginia earlier this year. He stole the
show with his 50-caliber Barrett rifle and full-throated defense of ‘We The People’
84. Governor Cuomo has fashioned his new-found economic shutdown authority into
85. On April 3rd, 2020, Mr. Lewis and his employees at The Firing Pin received a series
86. Claiming unlimited authority in these ‘unprecedented times,’ the state unilaterally
shut down The Firing Pin, causing many thousands of dollars in financial damages
87. The Firing Pin remained closed indefinitely, however, will reopen today on a
88. BRANDON LEWIS did request that the Empire State Development Corporation
grant him status as an essential business, however this request was ignored.
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89. The Governor’s second-hand delegation of legislative powers to a public authority
is obviously unconstitutional.
SHANNON JOY
90. The executive actions imposed by Governor Cuomo have affected the plaintiff’s
life and her family in a myriad of ways detrimental to her pursuit of happiness and
right to liberty.
91. The closure of all business has made it extremely difficult for her to pursue
advertising sales and engage in basic client management for her company, Joy
Media.
92. The inability to go to the radio station has made it more difficult to produce and
93. The closure of churches has deprived her of the ability to worship with her family
on Sundays and assemble on Tuesdays as part of the ladies’ Bible Study she
94. Her children have been deprived of basic education in both public and private
95. Online learning has been severely lacking despite the best efforts of individual
teachers and administrations. Fairport Central Schools and The Charles Finney
96. Her ability to attend and sponsor public assemblies, including to protest the
Governor’s orders.
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97. Finally, she is forced to wear a mask in public or face exclusion from vital
98. She seeks injunctive and declaratory relief against these illegal actions.
JAMES OSTROWSKI
99. As a result of the Governor’s orders, JAMES OSTROWSKI’s rights under the
100. He cannot attend or organize a public or religious assembly without the risk of
101. Prior to the illegal lockdown, he attended Roman Catholic Mass at the combined
parishes of St. Rose of Lima and St. Mark’s in North Buffalo for 21 years.
102. At a rally to reopen Buffalo on April 20, 2020, while filming the rally live on
was accosted by a Buffalo police officer and told he could not film from the
103. At a rally to reopen Rochester on May 1, 2020, he was being closely observed and
monitored by police officers and was under contrast threat of being arrested or
105. The stores he frequents display signs mandating wearing a mask, citing the
106. He cannot work out at a gym to maintain his weight and health.
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SETH DUCLOS
109. Previously, he went to the Monroe County Clerk’s office and received a pistol
permit application and had it completed and ready to be submitted on his birthday,
March 26th.
110. Due to the closure of the Monroe County Clerk’s office, he was unable to submit
111. Until the reopening of the office and until his permit is approved, he is devoid of
his right to protect himself in public and protect his family in the confines of his
112. JAMIE ROMERO, the Monroe County Clerk, closed the County pistol permit of-
fice she controls on or about March 18, 2020, in response to the Governor’s or-
ders concerning reduction of the workforce and the office has remained closed
ever since.
113. The pistol permit office does not take applications online.
114. Monroe County Pistol Permit Judge DOUGLAS A. RANDALL, is joined herein
as a necessary party to the relief requested, to wit, allowing Mr. Duclos to have a
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STEPHEN FELANO
116. Mr. Felano is the founder of 2ANYS.COM, New York State’s premier civilian
rearmament enterprise securing maximal Second Amendment civil rights by, with,
117. Before the lockdown, Mr. Felano was attending or hosting numerous public
meetings and events all across the state addressing the indisputable legality of
Second Amendment Sanctuary Ordinances and other critical civil rights issues
and other views extolling the supremacy of individual liberty and limited
118. Since the lockdown, Mr. Felano has sponsored no such events due to the deterrent
projection skills.
120. The lockdown has massively reduced Mr. Felano’s options for adequate and
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121. Mr. Felano strenuously objects to Governor Cuomo’s illegal and compulsory
122. Mr. Felano cites New York State lawmakers’ unlawful, irresponsible, and total
effectively transforming New York State into a dictatorship for the duration of the
123. Mr. Felano cites the wholesale cancellation of the Second Amendment by New
retailers, and pistol permitting offices as proof positive that government agents
without effectively and illegally eviscerating the fundamental human right to keep
124. Mr. Felano cites as tyrannical and unlawful Governor Cuomo’s April 3rd, 2020
125. Mr. Felano maintains this threat placed on full display the governor’s naked
aggression against equal protection and due process constitutional mandates while
Upstate residents for the benefit of the life and health of Downstate residents.
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126. Mr. Felano cites as tyrannical and unlawful New York City Mayor Bill de Blasio’s
April 29, 2020 public threat to project armed government force against Hasidic
127. Mr. Felano maintains this threat placed on full display the mayor’s naked
misconduct that occurred on May 2, 2020 when a New York City Police
Department officer beat a bystander and knelt on his head during a social
128. Mr. Felano cites the aforementioned despicable threats of armed government
force made by Governor Cuomo and Mayor de Blasio against the largely
disarmed populace of New York State as proof positive that civilian New Yorkers
rifles and standard ammunition magazines with a capacity far in excess of a paltry
10 rounds in order to effectively dissuade and defend against the growing level of
tyrannical action promulgated by New York State government agents amid the
COVID-19 pandemic.
violence by the state against largely disarmed New York residents amid the
COVID-19 pandemic as proof positive that New York State government has
Amendment exercise.
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130. As such, Mr. Felano maintains that the entire New York State civilian
regime, red flag disarmament, and sum total of New York State gun control
131. Mr. Felano forcefully maintains that the Second Amendment civil right to keep
and bear arms has proven itself indispensable to the task of restraining tyrannical
DUANE WHITMER
firearms owner.
133. He is also a candidate for Congress in the 27th District of New York as
candidate of the Libertarian Party and is Chairman of the Erie County Lib-
ertarian Party.
134. Before the lockdown, he was attending or hosting many public meetings
135. Since the lockdown, he has sponsored no such events due to the deterrent
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136. As a responsible gun owner, he regularly engages in target shooting to im-
prove his efficiency and ensure that during any lawful discharge of fire-
137. The lockdown has greatly reduced his options for obtaining ammunition
138. He also objects to the Governor’s illegal order directing him to wear a
mask.
139. LISA REEVES is the sole proprietor of Big Red Barber Shop in Ithaca, New
York.
140. On March 21, 2020, the Shop was ordered by Governor Cuomo to shut down due
to the pandemic.
141. The Governor stated that there would be pandemic unemployment insurance
142. LISA REEVES spent over 60 hours on the website and phone trying to get this
insurance.
143. Six times she got to the point where a recording said to complete the process that
she needed to talk to a representative and that a representative would call her back
within 72 hours.
144. She is still waiting for the call back six weeks later.
145. With no income and her savings depleted, on May 11, 2020, she reopened her
shop to keep from losing everything she has worked for the past 17 years.
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146. She applied full precautions including masks and allowing only one customer in
147. Nevertheless, after three hours of work the Tompkins County Health Department,
acting solely on the basis of Executive Order 202.7, called and ordered her to shut
down immediately.
148. She is in fear of losing her license and being fined if she reopens without an order
COVID-19
151. About 90% of hospitalized patients had one or more underlying condi-
tions, the most common being obesity, hypertension, chronic lung disease,
152. Hospitalization rates ranged from 0.1 per 100,000 population in persons aged 5–
17 years to 17.2 per 100,000 population in adults aged ≥85 years. (CDC)
155. There is no agreement on the percentage of persons infected who will die
25
156. Estimates range from 0.1 percent to one percent. (A. Fauci, et al, “Covid
26, 2020).
0.1 percent.
158. There is a sharp distinction in death rates based on age, with one analyst
reporting that, as of April 28, 2020, deaths among those under 14 totaled
just five; deaths among those 15 through 64 amounted to 3.6 per 100,000;
and those over 64 accounted for 80% of deaths. David Stockman, “The
(May 2, 2020).
159. There is little if any solid data to show that locking down society yields a
better result with respect to the virus, than merely taking precautionary
measures.
160. South Korea and portions of Italy showed great success in mass testing
161. Data indicating that the virus targets the elderly and those in ill health
tional measures.
162. Allowing younger and healthier people at low risk to resume normal activ-
ities and develop herd immunity while encouraging those at high risk to
take precautionary measures is not only the best and most rational strategy
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163. Not only is the Governor's lockdown approach not warranted in dealing
with the virus, but it is a complete disaster for society and the economy
164. There is exactly zero evidence that this lockdown is on the whole, benefi-
165. The death rate from Covid-19 is dwarfed by the main causes of death in
the United States, none of which has ever been alleged to provide justifi-
166. Constitutional rights were developed at a time when there were many more
dangerous epidemics and pandemics and the people had far less ability to
167. It is preposterous that the founders thought there was a disease exception to
rights.
168. On the contrary, everything we know about them indicates they would have
169. On March 2, 2020, the State Legislature passed a bill that gave the Governor
170. The law had previously given the Governor only the power to suspend statutes in
such cases.
171. The statute improperly delegates wholesale legislature power to the Governor
which was delegated by the people only to the Legislature and only under strict
27
procedural requirements including dividing the legislative power into two sepa-
rate houses, the Senate and the Assembly, and requiring their election by district
every two years and by dispersing that power among what is currently 213 legis-
lators. NY Constitution, Article III, Section 1, et seq.; Cf., German Enabling Act
of 1933 (“Laws enacted by the Reich government shall be issued by the Chancel-
172. The State Constitution gives all legislative power to the Legislature only.
173. Thus, the Governor has no legal authority or jurisdiction to issue directives and all
such directives are null and void ab initio just as they would be if issued by any
174. In addition to the Governor and his agents violating other specific provisions of
the Bill of Rights and Constitution, for them to impose legal obligations, legal
coercion and various penalties on citizens, without the slightest hint of legal
authority is a violation of due process under the 5th and 14th Amendments to the
Article IV)
175. Thus, the Governor’s orders closing businesses, limiting public assembly,
religious gatherings, forcing people to wear masks in public, etc. are all illegal.
176. As Governor of the State of New York, defendant ANDREW M. CUOMO “shall
take care that the laws are faithfully executed.” N.Y. Const., Art. IV, §3. As such,
the Governor is responsible for the administration and enforcement of the Penal
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177. The Governor exercises direct supervisory control over the State Police and can
178. As Attorney General for the State of New York, defendant LATITIA JAMES shall
“prosecute and defend all actions and proceedings in which the state is interested .
179. The Attorney General also has significant criminal jurisdiction and her
predecessor directly involved her office in firearms law enforcement, for example,
checks.
180. On information and belief, the Attorney General can investigate and prosecute
Penal Law throughout the State. “It shall be the duty of the superintendent of the
state police and of members of the state police to prevent and detect crime and
182. The State Police is a quasi-military organization in which all officers must follow
183. The Superintendent, with the approval of the Governor, his superior officer, is
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184. With the approval and under the direction of the Superintendent, the State Police
are engaged in the regular investigation, arrest and prosecution of anyone they
believe to be in violation of the State’s gun laws and related criminal statutes.
185. On information and belief, the State Police regularly refer matters to the relevant
pistol permit licensing officer when they believe that any permit holder has
186. If any one of the plaintiffs was found by the State Police to be in unlawful
and thus the State Police are a direct, palpable and immediate threat to violate
their right to bear arms whenever the plaintiffs choose to exercise that right.
187. Because of the administration and enforcement of the above executive orders and
related statutes by the defendants, the plaintiffs have been, and will continue to
188. At all times herein, the defendants were acting under color of state law.
189. All of the statutes, regulations, court actions, customs and practices referenced
190. At all times herein, the actions of the defendants have been intentional or in reckless
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THE DEVASTATING IMPACT OF THE LOCKDOWN ON
191. The Governor’s unlawful lockdown of society and the economy, mirrored in most
other states by their own governors, has devastated American society and its
economy.
192. The lockdown has not only caused an unprecedented disruption in American
193. Over twenty million jobs have been lost and unemployment hit a record of over
14 percent.
196. There is a $3.7 trillion federal deficit, the highest since World War II and the
197. There are credible reports of increases in overdoses and suicides, and an increase
198. There are credible reports of people deferring needed medical care due to the
lockdown.
199. It must be emphasized that the lockdown is a policy that explicitly sacrifices the
young for the old given the huge disparity in how the virus affects each age group.
200. The Constitution does not countenance the wholesale sacrifice of one age group
for the benefit of another age group, especially considering that a huge portion of
31
201. Nothing like this has ever happened in American history. The young are being
deprived of their youth; their social life; their education; their sports; their arts;
their graduations; their careers; their job market; and to add insult to injury, many
of them cannot even vote against their sacrifice but they will be for many decades
202. This entire mess was the product of failed government policies that violate liberty.
Our federal government, which has absolute control over the channels of
international travel, utterly failed to prevent the virus from entering our country.
203. Once it entered the country, the next line of defense should have been mass
testing as they did in South Korea and in the town of Vo, Italy, where such testing
worked.
204. However, to date, the government, which has an effective legal monopoly on
testing, has utterly failed to make testing available to more than a tiny percentage
of the population.
205. The last line of defense, our mostly socialized health care industry, in spite of
heroic work by front line nurses and doctors, who face combat-level casualties
themselves from the virus, has not been able to figure out how to cure the gravely
ill and are overwhelmed with cases and, given their highly regulated,
monopolized and bureaucratized nature, has been slow to respond to the increased
demand and cannot even keep their medical personnel fully protected with
equipment.
32
206. The problem is most severe in and around industries or services either owned by
the government or heavily regulated and funded by the government including the
New York City Subway and nursing homes and veterans’ homes.
207. Yet another government blunder is the heavy reliance on ventilators for severely
ill patients, a treatment which is now being seriously questioned due to its high
failure rate.
208. Government should not be allowed to use the problems caused by its own
209. These failed policies undercut the argument for emergency dictatorial
prior incompetence.
212. Nevertheless, the plaintiffs do not believe they could possibly obtain any redress in
state courts or in the legislature due to the nature of the New York State political
213. New York politics is extremely uncompetitive due in part to arcane election law
rules and judges who are all too willing to keep viable candidates off the ballot for
hyper-technical reasons. See, e.g. Saunders v. Egriu, CAE 20-00547 (App. Div. 4th
33
Dept. May 13, 2020. (Congressional candidate ordered off the ballot to a minor
214. All appellate judges in the state are both appointed by the Governor, and, unlike in
215. The New York courts have repeatedly refused to respect the Second Amendment
and there are several petitions for certiorari from New York State pending in the
Supreme Court.
216. New York courts have not to our knowledge granted any relief based on the
revolutionary holdings of Heller and McDonald which flew in the face of 100 years
217. Worse yet, in the infamous case of Bordeleau v. State of New York, 18 N.Y. 3d 305
(2011), the New York Court of Appeals refused to follow the crystal clear language
of its very own constitution, riding roughshod over a provision enacted in 1846 and
which survived many revisions and held that the clause, “The money of the state
219. Due to the political structure of New York State, Upstate is essentially a political
colony of Downstate.
220. The politics and government of the state are completely dominated by forces from
the New York City metropolitan area and Upstate interests are almost completely
ignored.
34
221. Numerous destructive policies popular in New York City are foisted on Upstate,
which, as a direct result has been declining and in distress and losing population for
decades.
222. The lockdown of the entire state due to a severe pandemic in New York City is
223. An incredible 91% of statewide cases are in the New York City Metropolitan area
(New York City plus Long Island, Westchester and Rockland counties.)
Downstate.
225. All of the key state elected officials are Democrats from the New York City
metropolitan area.
226. As a result of the stranglehold on power by one party in one city, New York State
has become one of the most corrupt states and the least free state in the union.3
227. The plaintiffs have no confidence in their ability to redress any of the grievances
228. At all times herein, the defendants were acting under color of state law.
3
Freedom in the Fifty States (Cato Institute, 2018).
35
VI. DAMAGES
229. On account of the Defendants' actions and violations of their rights as set forth
above, the Plaintiffs suffered actual damages, including loss of liberty, pain,
suffering, humiliation and emotional distress, and were forced to expend funds for
230. Plaintiffs are entitled to recover compensatory and punitive damages, attorney's
232. The eighth cause of action seeks injunctive and declaratory relief and attorneys’
fees only.
36
LEGAL CLAIMS
CAUSES OF ACTION: 2nd, 4th, 5th, 9th, 10th and 14th Amendments;
Guarantee Clause, Takings Clause, Commerce
Clause; 42 U. S. C. 1983
233. The Governor’s executive orders and the phone calls made by Investigator
CORREA, forcing the plaintiffs BRANDON LEWIS and his company THE
FIRING PIN, LLC. to close on or about April 3, 2020, violated the plaintiffs’
rights under the Second, Fifth and Fourteenth Amendments. See, Teixeira v.
Alameda County, 873 F.3d 670, 677 (9th Cir. 2017) (en banc) (gun store operator
has derivative stand to challenge the subsidiary right to acquire arms on behalf of
his customers).
234. On information and belief, other gun stores throughout the state were also forced
to close.
235. The right to sell firearms is an integral and indisputable element of the Second
Amendment.
236. While every colony maintained a militia, there was not a single founding-era law
37
237. “Regulations on the commercial sale of firearms did not exist at the time of the
238. As Thomas Jefferson wrote, “Our citizens have always been free to make, vend,
and export arms. It is the constant occupation and livelihood of some of them.”5
239. The defendant’s actions violated the Plaintiffs’ clearly established right to keep
and bear arms and rights to liberty and personal security, equal protection and due
States Constitution.
240. The Defendants knew, or reasonably should have known, that their conduct vio-
241. The Defendants acted with intent to violate, or with deliberate or reckless indiffer-
ence to, the Plaintiffs’ clearly established Fourth and Fourteenth Amendment
rights.
242. At all times relevant herein, the Defendants were acting under color of state law,
or conspired with individuals acting under color of state law to deprive plaintiffs
of their constitutional rights. Adickes v. S.H Kress & Co., 398 U.S. 144, 150
(1970).
243. On information and belief, the defendants LETITIA JAMES and KEITH M.
CORLETT support and stand ready to enforce with the powers of their offices the
4
Carlton Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and
Judicial Ipse Dixit, 60 HASTINGS L.J. 1371, 1379 (2009).
5
Secretary of State Thomas Jefferson, letter to George Hammond, British Ambassador to the
U.S., May 15, 1793, in 7 THE WRITINGS OF THOMAS JEFFERSON 325, 326 (Paul Ford ed.,
1904) (rejecting British demand that U.S. forbid individuals from selling arms to the French).
38
acts complained of herein and they should be enjoined from doing so by the
Court.
244. As a direct result of the Defendants’ conduct, the Plaintiffs have suffered actual
CAUSES OF ACTION: 1st, 4th, 5th, 9th, 10th and 14th Amendments;
42 U. S. C. 1983
245. The Governor’s executive orders violated the plaintiffs’ rights to public assembly
246. The defendant’s actions violated the Plaintiffs’ clearly established rights as
guaranteed by the First, Fourth and Fourteenth Amendments to the United States
Constitution.
247. The Defendants knew, or reasonably should have known, that their conduct vio-
248. The Defendants acted with intent to violate, or with deliberate or reckless indiffer-
39
249. At all times relevant herein, the Defendants were acting under color of state law,
or conspired with individuals acting under color of state law to deprive the plain-
tiffs of their constitutional rights. Adickes v. S.H Kress & Co., 398 U.S. 144, 150
(1970).
KEITH M. CORLETT support and stand ready to enforce with the powers of their
offices the acts complained of herein and they should be enjoined from doing so
by the Court.
251. As a direct result of the Defendants’ conduct, the Plaintiffs have suffered actual
252. The Governor’s executive orders violated the plaintiffs’ right to the free exercise
See, Tabernacle Baptist Church, Inc. v. Andrew Beshear, Civil No. 3:20-cv-
253. The First Amendment to the Constitution protects the "free exercise" of religion.
Fundamental to this protection is the right to gather and worship. See W. Va. State
Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) ("The very purpose of a Bill of
40
Rights was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts ... [such as the]
freedom of worship and assembly."). The Free Exercise Clause was incorporated
254. As the Supreme Court has noted, "a law burdening religious practice that is not
neutral or not of general application must undergo the most rigorous of scrutiny."
Church of the Lukwni Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,546 (1993).
255. Defendants prohibit in-person religious services, under penalty of law, and have
that might be taken, violates their constitutional right to the free exercise of
religion.
257. The defendants’ actions violated the Plaintiffs’ clearly established rights as guar-
anteed by the First and Fourteenth Amendments to the United States Constitution.
258. The Defendants knew, or reasonably should have known, that their conduct vio-
259. The Defendants acted with intent to violate, or with deliberate or reckless indiffer-
260. At all times relevant herein, the Defendants were acting under color of state law,
or conspired with individuals acting under color of state law to deprive plaintiffs
of their constitutional rights. Adickes v. S.H Kress & Co., 398 U.S. 144, 150
(1970).
41
261. On information and belief, the defendants LETITIA JAMES and
KEITH M. CORLETT support and stand ready to enforce with the powers of their
offices the acts complained of herein and they should be enjoined from doing so
by the Court.
262. As a direct result of the Defendants’ conduct, the Plaintiffs have suffered actual
42 U. S. C. 1983
263. The Governor’s executive orders forced the closing of the Monroe County Pistol
plaintiff SETH DUCLOS from exercising his Second Amendment rights to obtain
a handgun for lawful purposes, and also impacted BRANDON LEWIS’s right to
264. The defendants’ actions violated the Plaintiffs’ clearly established right to keep
and bear arms and rights as guaranteed by the Second and Fourteenth Amend-
42
265. The Defendants knew, or reasonably should have known, that their conduct vio-
lated the Plaintiffs’ clearly established constitutional right to keep and bear arms.
266. The Defendants acted with intent to violate, or with deliberate or reckless indiffer-
ence to, the Plaintiffs’ clearly established Second and Fourteenth Amendment
rights.
267. At all times relevant herein, the Defendants were acting under color of state law,
or conspired with individuals acting under color of state law to deprive the plain-
tiffs of their constitutional rights. Adickes v. S.H Kress & Co., 398 U.S. 144, 150
(1970).
268. As a direct result of the Defendants’ conduct, the Plaintiffs have suffered actual
42 U. S. C. 1983
269. The Governor’s executive order to wear a mask in public violated the plaintiffs’
rights under the Fourth, Fifth and Fourteenth Amendments and the Guarantee
Clause.
43
270. The defendants’ actions violated the Plaintiffs' clearly established rights to liberty
and personal security and due process as guaranteed by the Fourth, Fifth and
271. The Defendants knew, or reasonably should have known, that their conduct vio-
lated the Plaintiffs’ clearly established constitutional rights to liberty, personal se-
272. The Defendants acted with intent to violate, or with deliberate or reckless indiffer-
ence to, the Plaintiffs’ clearly established Fourth and Fourteenth Amendment
rights.
273. At all times relevant herein, the Defendants were acting under color of state law,
or conspired with individuals acting under color of state law to deprive plaintiffs
of their constitutional rights. Adickes v. S.H Kress & Co., 398 U.S. 144, 150
(1970).
274. On information and belief, the defendants LETITIA JAMES and KEITH M.
CORLETT support and stand ready to enforce with the powers of their offices,
the acts complained of herein and they should be enjoined from doing so by the
Court.
275. As a direct result of the Defendants’ conduct, the Plaintiffs have suffered actual
44
SIXTH CAUSE OF ACTION-- PURCHASING AMMUNITION
OUT OF STATE
276. The closing of New York gun stores makes it critical that New York’s ban on or-
277. The consistent inability of New Yorkers to order ammunition online for at-home
delivery stems from New York State Penal Law § 400.02 and § 400.03.
278. The vast majority of online ammunition retailers that ship to home addresses
across the U.S. interpret the aforementioned sections of the Penal Law as a total
ban on their ability to sell ammunition online to New Yorkers for direct-to-home
shipment. They believe they must ship to a New York State Federal Firearms Li-
website as follows:
45
as we all work through this wild situation. We appreciate your support and
will be praying New Yorkers avoid further spread of the virus.”
tional red-tape crushing the life out of the Second Amendment, results in a de
facto ban on the ability of citizens to procure common ammunition for the dura-
281. The vast majority of online ammunition retailers willing to ship-to-home believe
that New York State will attempt to prosecute them for shipping ammunition di-
rect to the homes of New York State residents. No doubt, this is likely due to the
online ammunition sales is contained in Section 400 of the state Penal Law.
282. New York’s ban on out of state ammunition sales violates both the right to bear
283. The plaintiff asks the Court to declare the ban unconstitutional and enjoin all en-
forcement of it.
46
SEVENTH CAUSE OF ACTION—CLOSING THE BIG RED BARBER SHOP
42 U. S. C. 1983
284. The Governor’s executive orders forcing the plaintiff to close her barber shop,
regardless of any safety measures plaintiff instituted, violated the plaintiff’s rights
under the Fifth and Fourteenth Amendments and the Guarantee Clause,
specifically, her right to run a business and her right not to be subject to unlawful
orders.
285. The defendants’ actions violated the Plaintiff’s clearly established rights to due
process and liberty, to operate a business free of unreasonable burdens and to live
286. The Defendants knew, or reasonably should have known, that their conduct vio-
287. The Defendants acted with intent to violate, or with deliberate or reckless indiffer-
ence to, the Plaintiff’s clearly established Fifth and Fourteenth Amendment rights.
288. At all times relevant herein, the Defendants were acting under color of state law,
or conspired with individuals acting under color of state law to deprive plaintiff of
her constitutional rights. Adickes v. S.H Kress & Co., 398 U.S. 144, 150 (1970).
47
289. On information and belief, the defendants LETITIA JAMES and
KEITH M. CORLETT support and stand ready to enforce with the powers of their
offices, the acts complained of herein and they should be enjoined from doing so
by the Court.
290. As a direct result of the Defendants’ conduct, the Plaintiff has suffered actual
AGAINST SECTION 29-a OF THE EXECUTIVE LAW AND ALL DIRECTIVES ISSUED
THEREUNDER
CAUSES OF ACTION: 1st, 2nd, 4th, 5th, 9th, 10th and 14th
291. As described herein, the Legislature’s illegal delegation of power to the Governor
and the combined impact of the Governor’s unlawful executive orders have
devastated the rights of New Yorkers, wrecked the economy and caused
significant damage to each of the plaintiffs’ lives, both directly and indirectly.
48
292. The defendants’ actions violated the Plaintiffs' clearly established rights to liberty
293. The defendants knew, or reasonably should have known, that their conduct vio-
294. The Defendant acted with intent to violate, or with deliberate or reckless indiffer-
295. At all times relevant herein, the Defendants were acting under color of state law,
or conspired with individuals acting under color of state law to deprive plaintiffs
of their constitutional rights. Adickes v. S.H Kress & Co., 398 U.S. 144, 150
(1970).
296. On information and belief, the defendants ANDREW CUOMO, LETITIA JAMES
and KEITH M. CORLETT support and stand ready to enforce with the powers of
their offices the acts complained of herein and they should be enjoined from doing
so by the Court.
297. As a direct result of the Defendants’ conduct, the Plaintiffs have suffered actual
298. The Court should issue full declaratory and injunctive relief to halt the unconstitu-
tional acts of the defendants and to prevent any further damage to the People of
49
3. Enter a declaratory judgment that the actions of the defendants described herein
infringe on the rights of the plaintiffs in violation of the First, Second, Fourth,
Fifth, Ninth, Tenth and Fourteenth Amendments to the United States Constitution
and the Guarantee Clause, the Interstate Commerce Clause, the Privileges and
4. Issue preliminary and permanent injunctions enjoining the defendants and their
7. Award Plaintiffs all costs and disbursements incurred in the prosecution of this
50