Dark Storm Industries, LLC v. Hochul ( 2021 )

20-2725-cv
Dark Storm Industries, LLC v. Hochul
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 5th day of October, two thousand twenty-one.
PRESENT: JON O. NEWMAN,
JOSÉ A. CABRANES,
RICHARD C. WESLEY,
Circuit Judges.
DARK STORM INDUSTRIES LLC, BRIAN DOHERTY,
AND KEVIN SCHMUCKER,
Plaintiffs-Appellants, 20-2725-cv
v.
KATHY C. HOCHUL, in her official capacity as Governor of
the State of New York, EMPIRE STATE DEVELOPMENT
CORP., AND ELIZABETH RUTH FINE,
Defendants-Appellees.
FOR PLAINTIFFS-APPELLANTS: JAMES M. MALONEY, Law Office of James
M. Maloney, Port Washington, NY.
FOR DEFENDANTS-APPELLEES: DUSTIN J. BROCKNER, Assistant Solicitor
General, for Letitia James, Attorney
General, State of New York, Albany, NY.
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Appeal from an order of the United States District Court for the Northern District of New
York (Lawrence E. Kahn, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED as moot, and the cause is
REMANDED to the District Court with instructions to vacate judgment and to dismiss the claims
of Plaintiffs-Appellants as moot.
Dark Storm Industries LLC (“Dark Storm”), Brian Doherty, and Kevin Schumucker
(together, “Plaintiffs”) seek declaratory and injunctive relief from two March 2020 COVID-19
executive orders that barred Dark Storm from selling firearms to civilians. The District Court
entered summary judgment for Defendants-Appellees (“Defendants”) on the merits of Plaintiffs’
Second Amendment claim. 1 The District Court rejected Defendants’ mootness argument, reasoning
that even though Dark Storm had been permitted to reopen, Defendants did not meet their burden
to show no reasonable expectation that the restriction would recur. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of
Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (some internal quotation
marks omitted). “The voluntary cessation of allegedly illegal activities will usually render a case
moot if the defendant can demonstrate that (1) there is no reasonable expectation that the alleged
violation will recur and (2) interim relief or events have completely and irrevocably eradicated the
effects of the alleged violation.” Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 603 (2d Cir.
2016) (citation omitted). A defendant satisfies its burden where it shows that the possibility of
recurrence is merely “speculative.” Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of Educ., 397 F.3d
77, 88 (2d Cir. 2005).
We find that Defendants have met their burden. Plaintiffs challenge components of
Executive Orders 202.6 and 202.8, which were based on the Governor’s prior declaration of a
disaster emergency. N.Y. Exec. Order 202.6 (Mar. 18, 2020); N.Y. Exec. Order 202.8 (March 20,
2020). On June 24, 2021, the Governor rescinded this emergency declaration. N.Y. Exec. Order
210 (June 24, 2021). Also in June, the Governor announced that all state COVID-19 restrictions
were lifted after 70% of New York residents 18 and older received at least one vaccine dose. 2 The
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The District Court dismissed Plaintiffs’ remaining claims as abandoned. Plaintiffs do not
challenge this ruling on appeal.
2
Press Release, Governor Cuomo Announces COVID-19 Restrictions Lifted as 70% of Adult New
Yorkers Have Received First Dose of COVID-19 Vaccine (June 15, 2021),
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New York legislature has curtailed the Governor’s authority to issue new COVID-related directives.
See 2021 N.Y. Sess. Laws ch. 71 § 4. Plaintiffs concede that this change was not “a strategic
litigation ploy.” E.I. Dupont de Nemours & Co. v. Invista B.V., 473 F.3d 44, 47 (2d Cir. 2006). They
argue instead that the COVID-19 pandemic is a “sui generis worldwide situation” that has created “a
state of extreme flux” and “almost certainly will require . . . varying responses by state executive
branches.” Letter Br. 2. However, “[p]articularly in view of the mitigation measures that have
become available to combat the spread of COVID-19, and the providential infrequency of
pandemics,” the risk that restrictions on firearm retailers will recur is only “speculative.” Conn.
Citizens Def. League, Inc. v. Lamont, 6 F.4th 439, 446 (2d Cir. 2021). Thus, Plaintiffs do not “remain
under a constant threat” of retail restrictions. Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021)
(citation omitted). Nor do “recent . . . developments suggest that they [may] recur,” Fed. Defs. of
N.Y., Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 127 (2d Cir. 2020)—in fact, quite the opposite, as a
recent increase in COVID-19 cases has prompted neither a renewed disaster emergency declaration
nor an order closing businesses.
CONCLUSION
We have reviewed all of the arguments raised by Plaintiffs-Appellants on appeal and find
them to be without merit. For the foregoing reasons, we DISMISS the appeal as moot, and we
REMAND the cause to the District Court with instructions to vacate judgment and to dismiss the
claims of Plaintiffs-Appellants as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
https://www.governor.ny.gov/news/governor-cuomo-announces-covid-19-restrictions-lifted-70-
adult-new-yorkers-have-received-first.
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