Page:Spencer v. Nigrelli.pdf/34

 first two factors “are the most critical, but a stay is not a matter of right, even if irreparable injury might otherwise result, it is an exercise of judicial discretion, and the party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. (internal citation and quotation marks omitted).

Here, a stay pending appeal is not warranted solely under these factors. As discussed above, Plaintiffs’ constitutional rights are being violated absent a preliminary injunction. The State has not established irreparable injury in the absence of a stay. The balance of hardships and public interest weigh in favor of Plaintiff, also as discussed above. Finally, it is Plaintiffs who have demonstrated that they are likely to succeed on the merits. As in Hardaway, legislative enactments may not eviscerate the Bill of Rights. Every day they do is one too many. Hardaway, No. 22-CV-771, 2022 WL 16646220, at *19.

Nevertheless, as discussed among the Court and the parties at the hearing, and as jointly proposed by Plaintiffs and the State (see Dkt. 55):

(1) This preliminary injunction will be stayed pending appeal, consistent with Defendant Nigrelli’s representation at the December 19, 2022, status conference that the stays entered by the Second Circuit in Antonyuk v. Hochul, No. 22-2908, and Hardaway v. Nigrelli, No. 22293322-2933 [sic] permit Plaintiffs to designate individuals otherwise authorized by law to carry a firearm to do so on church premises for the purposes of keeping the peace, without regard to whether they fall within any of the exceptions set forth in N.Y. Penal Law §265.01e(3)265.01-e(3) [sic];