Case 6:22-cv-06486-JLS Document 56 Filed 12/29/22 Page 33 of 36
III. SCOPE
The State argues that Plaintiffs can only bring a facial—rather than an as-applied—challenge to the houses of worship exclusion, which would succeed only if Plaintiffs “show that ‘no set of circumstances exists under which the [statute] would be valid, i.e., that the law is unconstitutional in all of its applications,’ or at least that it lacks a ‘plainly legitimate sweep.’” Dkt. 43, at 6 (quoting United States v. Decastro, 682 F.3d 160, 168 (2d Cir. 2012)). The argument fails.
Plaintiffs have shown, at a minimum, that the houses of worship exclusion lacks a “plainly legitimate sweep” in that it forces individuals to give up their First Amendment freedoms as well as their rights to armed self-defense outside the home. See Decastro, 682 F.3d at 168 (to prevail on a facial challenge, a plaintiff “would need to show that no set of circumstances exists under which the statute would be valid, i.e., that the law is unconstitutional in all of its applications, or at least that it lacks a plainly legitimate sweep”) (internal citation omitted). And it bears noting that neither the parties nor the Court’s imagination has identified a plainly legitimate sweep.
IV. STAY PENDING APPEAL
The factors “relevant to granting a stay pending appeal are the applicant’s ‘strong showing that he is likely to succeed on the merits,’ irreparable injury to the applicant in the absence of a stay, substantial injury to the nonmoving party if a stay is issued, and the public interest.” Uniformed Fire Officers Ass’n v. de Blasio, 973 F.3d 41, 48 (2d Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). The
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