Wisconsin Appeals Court Blows Open Big Holes in Section 230–Daniel v. Armslist
by Eric Goldman: See the article
Congress eviscerated Section 230 via the Worst of Both World FOSTA, but defendants have been doing well with Section 230 defenses over the past year-plus. Then, last week, a Wisconsin appeals court issued a published opinion that massively screws up Section 230 jurisprudence. I don’t know if the timing is a coincidence or a signal of broader common law retrenchment of Section 230 post-FOSTA. Either way, it’s very troubling.
The case relates to a shooting in the Milwaukee area that killed four people and wounded four others. The shooter found the seller of the gun and ammo on Armslist, an online marketplace for such things, even though the shooter was subject to a court order banning him from owning a gun. (The maxim “if guns are outlawed, only outlaws will have guns” seems vaguely apropos here). The shooter and seller consummated the transaction offline, so Armslist functioned as an online classified advertising service. (Thus, this case doesn’t turn on Armslist functioning like a marketplace; contrast the
Airbnb v. SF ruling).
A shooting victim’s estate sued Armslist for negligence for its role in the transaction. The lower court dismissed the case on Section 230 grounds. The appeals court reversed.
The appeals court made “a plain language interpretation” of Section 230. This means the appellate court gave itself permission to deliberately ignore two decades of precedent in favor of an idiosyncratic and anachronistic reading of the statute. The court justifies its “plain language” approach “[b]ecause this case presents an issue of first impression in Wisconsin and there is no guidance from the United States Supreme Court.” This is a great example of how textualist judges can justify judicial activism.
Some of the complaint’s key allegations:
Armslist made it easy to search for private sellers, who–unlike licensed dealers–do not have to conduct background checks on buyers. Thus, Armslist “is designed to enable buyers to evade state waiting period and other legal requirements”
Armslist allowed users to flag problematic content but “expressly prevented users from flagging content as purportedly criminal or illegal”
Armslist warned users not to engage in illegal activity but didn’t provide “guidance on specific laws governing firearm sales or the care that should be used in conducting such sales” [LAW GOVERNING LAWYERS ALERT: it would potentially constitute the criminal unauthorized practice of law for Armslist to provide “guidance” to its users about specific laws]
Armslist didn’t require account registration and thus encouraged anonymity
there is evidence that many buyers wanted to buy from private sellers, especially in states that require licensed dealers to conduct background checks of buyers. A survey indicated that “67 percent of private online sellers in Wisconsin are willing to sell to a person they believe could not pass a background check.”
The court summarizes (emphasis added): “Daniel’s theory of liability is that, through its design and operation of website features, Armslist’s actions were a cause of the injuries to Daniel.”
As you know, courts have repeatedly and emphatically shut down plaintiffs’ efforts to work around Section 230 by saying they are suing for the defendant-website’s “design and operation.” Leading recent examples include the First Circuit’s
Doe v. Backpage and the
Dyroff v. Ultimate Software rulings. Thus, the plaintiff’s allegations appear to support a quick and easy Section 230 defense win (as the lower court granted). What went wrong on appeal?
The appellate court says that Section 230(e)(3) preempts state law, and Wisconsin has a presumption against such preemption. Thus, the court says it must apply “an exacting standard” to the preemption scope. With respect to 230(c)(1)’s reference to publisher/speaker, the court says:
in order to prevail, Armslist must show that the claims here treat Armslist as liable because it is an entity that published or spoke information provided by Linn or Radcliffe, and Armslist must overcome the presumption against preemption
The court says Armslist failed to do this:
Armslist contends that the Act protects the activity of designing and operating a website, but without tying this interpretation to language in the Act. Stated differently, Armslist effectively ignores the Act’s phrase “publisher or speaker of any information provided by another.”…
The Act does not, for example, provide lists of website features that do or do not represent traditional editorial functions, nor does it use the terms “neutral” or “passive” or any similar terms. This leaves courts without principled and consistent ways to define “traditional editorial functions,” “neutral means,” or “passive display.” We cannot lightly presume that Congress would intend that the highly consequential immunity determination could turn on how courts might chose to characterize website features as being more or less like traditional editorial functions, or more or less neutral or passive, especially without reasonably specific statutory direction or guidelines.
Despite its plain meaning approach, the court does try to engage with some precedents:
The court cherrypicks stray language from cases like
Barnes v. Yahoo (but not the part where the Ninth Circuit concluded that Section 230 preempts claims for negligent content removal),
Doe v. Internet Brands (the Section-230-isn’t-a-get-out-of-jail-free language–as I’ve said before, some puppy has a bad day every time a judge cites this expression), and Roommates.com (the lawless-no-man’s-land language, which also saddens puppies).
The court cites several cases for the proposition that Section 230 applies when the defendant is treated like the publisher/speaker, even though that proposition isn’t in doubt, and the court doesn’t actually discuss any cases that defined or examined the meaning of the words “publisher” or “speaker.”
The court distinguishes
Doe v. Backpage and Herrick v. Grinder (the Jan. 2018 ruling that I haven’t blogged yet) because they “are effectively reading into the Act language that is not present, to the effect that the Act provides general immunity for all activities that consist of designing or operating a website that includes content from others.”
The court distinguishes Zeran v. AOL,
Klayman v. Zuckerberg, and the defense-favorable parts of
Roommates.com because the court cannot “tie these case-law applications to the Act’s specific language and, for that reason, do[es] not find the cases Armslist relies on helpful.”
Here’s my non-exhaustive list of what went wrong:
the court aggressively applied the doctrine that federal preemption should be narrowly construed
despite the purported “plain language” analysis, the court bypasses Congress’ findings recited in Section 230(a) and (b), which (if considered) would have counseled a broader reading of the statute
the court preferences independent statutory analysis over 20 years of persuasive caselaw precedent. The court also didn’t consult Congress’ post-Section 230 amendments, which would have confirmed that Congress did intend to read the law broadly.
the court had strong–and narrow–views about how a plaintiff’s claim would treat an online service as publishing or speaking third party content
the court may have strong normative views about gun control or victim compensation
perhaps Armslist could have done a better job relying on more than precedent. Still, I get the feeling this court was going to reach this result regardless of the strength of Armslist’s advocacy.
Unfortunately, the opinion does not detail the exact circumstances when its statutory reading would support a Section 230 defense. It only says: “We note that our interpretation of the Act does not deprive it of value to defendants in tort cases, but instead provides concrete, if narrow, immunity. For example, websites cannot be held liable under the Act merely because they allow the posting of third-party defamatory comments, because that would treat the websites as the publishers or speakers of the comments.” As a result, I think this opinion could embolden plaintiffs on two fronts:
1) Plaintiffs could argue that Section 230 only applies when the word “publisher” or “speaker” appears in the claim’s elements. If true, this would functionally narrow Section 230 into a defamation-only defense–a truly shocking result given what’s happened in the 20 years in the courts and Congress.
2) Plaintiffs can always say they are suing for the website’s design and operation, not third party content. We’ve seen that sophistry many times over the years, and courts have rightly shut it down. But this case apparently categorically puts those claims outside of Section 230.
Because of these new opportunities for plaintiff mischief, this opinion horks Section 230 jurisprudence. Indeed, I think it’s the most pernicious Section 230 ruling since
Hassell v. Bird (also from a state appeals court gone rogue–what’s up with that?). Thus, this case is an excellent candidate for appeal to the Wisconsin Supreme Court. If there is an appeal, it would be an all-hands-on-deck situation for amicus intervention.
This case has several parallels to the “material support for terrorism” cases against social media sites, such as
Fields v. Twitter. In both types of cases, the website-defendant allegedly published content that the plaintiff alleges constitutes a but-for cause of offline murder. The social media defendants have won all of their cases based on a combination of Section 230, failure of the prima facie elements, and lack of causation. So even if this court jeopardizes Section 230’s applicability, those cases could still end on other grounds.
Even without Section 230, Armslist has a high chance of defeating the negligence claim. First, there are serious causation problems with the plaintiff’s arguments, as is the case with the “material support for terrorism” cases. Second, in 2014, the
Seventh Circuit issued a strong victory to Armslist in a fairly analogous negligence lawsuit, holding that Armslist had no duty to the decedent because it lacked the required “special” relationship (indeed, it had no relationship with the decedent at all). If that reasoning applies here, Armslist should eventually win this case one way or another. I could see this opinion leading to the same outcome as the Doe v. Internet Brands case–where the Ninth Circuit said that Section 230 didn’t apply to failure to warn claims, but later cases held that websites don’t have a duty to warn, so bypassing Section 230 didn’t lead to any greater success for plaintiffs. However, the Internet Brands case only helped failure-to-warn claims get past Section 230, while this Armslist ruling applies all types of Section 230 cases and therefore causes substantially more problems.
* * *
The author of this stinker is
Judge Brian Blanchard, who worked as a newspaper reporter before law school. Perhaps this opinion reflects a former journalist’s idiosyncratic views of what “publication” means? Recall that Ken Zeran had taken journalism classes in college, so maybe there’s something about how people trained as journalists see Section 230. Then again, Judge Wilkinson, the author of Zeran v. AOL,
was a former journalist too and had no problem reading Section 230 very broadly, so the journalism background doesn’t dictate this result.
Daniel v. Armslist, LLC, 2018 WL 1889123 (Wis. App. Ct. April 19, 2018)
Gun Website Armslist Wins in Azana Shooting Case
View case summary
DANIEL V. ARMSLIST, LLC
HON. RUDOLPH T. RANDA U.S. District Judge
DECISION AND ORDER
This action arises from the October 21, 2012, mass shooting at the Azana Spa and Salon in Brookfield, Wisconsin. On that date, Radcliffe Haughton killed his wife, Zina Daniel Haughton, two of his wife's co-workers, and himself, wounding four others. Haughton bought the murder weapon through Armslist.com, an online marketplace for the sale and purchase of firearms, even though he was not allowed to possess a firearm pursuant to a domestic violence restraining order.
Yasmeen Daniel, Zina's adult daughter from a previous marriage, was at the spa and witnessed the carnage. Daniel brought suit in Milwaukee County Circuit Court against Armslist and its owners, Brian Mancini, Broc Elmore, and Jonathan Gibbon. Daniel also sued Devin Linn, a Wisconsin resident that sold the murder weapon to her stepfather, and her stepfather's estate. Daniel alleges, as relevant here, that Armslist aided and abetted the unlawful sale and possession of a firearm in violation of state and federal law. The Armslist defendants removed from state court, and Daniel now moves to remand. This motion is granted.
The following facts are taken from the complaint and accepted as true for purposes of this motion.
On October 3, 2012, Radcliffe Haughton assaulted Zina Daniel Haughton in their home. In response to a 911 call, police from the Brown Deer Police Department arrived and escorted Zina to a local Holiday Inn to protect her from further violence. The following day, Brown Deer police took Zina back to her home to retrieve some personal items, after which she drove to work at Azana.
That same day, Radcliffe appeared in Azana's parking lot with a knife and confronted Zina, who took shelter in the salon. Left in the parking lot, Radcliffe slashed the tires of Zina's car. Later that day, Brown Deer police arrested Radcliffe for domestic violence, criminal damage to property, and disorderly conduct.
The next day, Zina signed a 72-hour contact prohibition against Radcliffe, requiring him to avoid contacting her other than through a law enforcement officer or an attorney. On October 8, Zina filed a petition for a restraining order in Milwaukee County. The court issued a temporary restraining order while the matter was pending. On October 18, Radcliffe and Zina attended a hearing to adjudicate the petition. Zina told the court that Radcliffe's threats terrorized her "every waking moment." Brown Deer police officers also testified in favor of Zina. The court granted Zina's petition and prohibited Radcliffe from approaching his wife for four years, the maximum allowed under Wisconsin law. The court also prohibited Radcliffe from possessing a firearm until October 18, 2016, finding "clear and convincing evidence" that he might use a firearm to harm Zina and endanger public safety.
Federally licensed firearms dealers are required to conduct background checks on gun buyers to prevent sales to individuals prohibited from possessing firearms. In enacting this requirement, Congress recognized and sought to address the inherent danger to the public posed by certain individuals possessing firearms. Unlicensed private sellers, who are not engaged in the business of selling firearms, are not required to conduct background checks under federal law.
Private sales over the internet are frequently linked to illegal gun trafficking, sales to minors, and mass shootings, such as those that took place at Virginia Tech, a Navy recruiting center in Chattanooga, Tennessee, and Northern Illinois University. As a result, many websites have prohibited private gun sales, including ebay, Craigslist, Amazon.com, and Google AdWords.
In the marketplace created by Armslist, any putative buyer can post a description of the firearm they wish to purchase and any seller can post a description of the firearm they wish to sell. Armslist's customers contact one another through Armslist's server by clicking on a link in their website or using their counterparty's contact information. Armslist receives revenue through advertising, so the more gun transactions that occur, the more money Armslist makes.
Several of the most significant design features of Armslist.com assist prohibited purchasers in evading federal and state laws while acquiring firearms. For example, Armslist provides the data fields which its customers fill out when they create "want to buy" or "for sale" posting. For sellers, one of the most prominent data fields is whether a seller is a "premium vendor" (that is, a purportedly licensed gun dealer) or a "private seller." Similarly, for a purchaser posting a "want to buy" advertisement, Armslist offers a "seller" data field for them to specifically identify whether they would prefer to purchase from a private party as opposed to a licensed dealer.
Armslist also has a search function that allows buyers to search for only private sellers. Armslist does allow users to flag advertisements for review and policing, but expressly prevents users from flagging content as criminal and illegal. Users are not required to register an account, thereby encouraging anonymity, and Armslist prominently displays on each advertisement whether the account is registered or unregistered.
Radcliffe Haughton's search for firearms took place exclusively on Armslist.com and made use of the search function to exclude licensed dealers. On October 19, 2012, Haughton found an Armslist.com offer of sale posted by Linn for a used FNP-40 semiautomatic handgun with three high-capacity magazines of ammunition. The advertised cost was $500, more than it would normally cost for a legitimate buyer. Haughton emailed Linn using the contact function. On October 20, the day before the shooting, Haughton bought the gun from Linn in a McDonald's parking lot in Germantown, Wisconsin.
Courts interpret removal statutes narrowly with the implicit understanding that a plaintiff is free to choose his forum. Kenosha Unified Sch. Dist. v. Stifel Nicolaus & Co., Inc., 607 F. Supp. 2d 967, 973 (E.D. Wis. 2009). Doubts regarding subject matter jurisdiction are resolved in favor of remand. Id. (citing Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)).
The Armslist defendants invoke federal question jurisdiction. 28 U.S.C. § 1331. A case arises under federal law in two ways. Evergreen Square of Cudahy v. Wis. Housing & Econ. Dev't Auth., 776 F.3d 463, 465 (7th Cir. 2015) (citing Gunn v. Minton, --- U.S. ---, 133 S. Ct. 1059, 1064 (2013)). "Most directly, a case arises under federal law when federal law creates the cause of action asserted." Id. This "accounts for the vast bulk of suits that arise under federal law." Id. But where "a claim finds its origins in state rather than federal law," the Supreme Court has "identified a special and small category of cases in which arising under jurisdiction still lies." Id. at 465-66. In this category, courts ask whether the "state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). This inquiry "rarely results in a finding of federal jurisdiction," but "rarely" differs from "never." Evergreen Square, 776 F.3d at 466 (citing Hartland Lakeside Joint No. 3 Sch. Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1033 (7th Cir. 2014)).
Daniel brings eleven claims: (1) negligence; (2) negligence per se; (3) negligent entrustment; (4) negligent infliction of emotional distress; (5) civil conspiracy; (6) aiding and abetting tortious conduct; (7) public nuisance; (8) wrongful death; (9) piercing the corporate veil; (10) assault; and (11) battery. These are state law causes of action.
Even so, Armslist argues that Count VI arises under federal law because it alleges a violation of federal criminal statutes: the aiding and abetting statute, 18 U.S.C. § 2, and 18 U.S.C. § 922(d), which makes it unlawful to sell a firearm to certain persons, including one (such as Radcliffe Haughton) who is subject to a domestic violence restraining order. Neither statute creates a federal civil cause of action. See, e.g., Alcante v. HRB Tax Group, Inc., No. 11-cv-125, 2011 WL 2729191, at *1 (N.D. Ind. 2011) (18 U.S.C. § 2 is a "criminal statute that do[es] not create private rights of action"); Bannerman v. Mountain State Pawn, Inc., No. 10-cv-46, 2010 WL 9103469, at *7 (N.D.W.V. Nov. 5, 2010) ("the language, legislative history, and purpose of § 922 do not create a substantive federal right of the plaintiff to recover damages"). Accordingly, Armslist must demonstrate that Daniel's claims "turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues." Grable, 545 U.S. at 312.
In this respect, Armslist argues that Counts II and VI raise substantial federal questions by seeking to impose liability for violating federal criminal statutes. This argument wrongly presumes that Daniel cannot prevail on these claims unless she proves a violation of federal law. To the contrary, in Count II (negligence per se), Daniel alleges that the Armslist Defendants and Linn "violated federal, state, and local statutes, regulations, and ordinances, including without limitation by aiding and abetting the unlawful possession of a firearm pursuant to 18 U.S.C. § 2 and 18 U.S.C. § 922(g), and endangering safety by use of a dangerous weapon pursuant to Wis. Stat. § 941.20(1)." Complaint, ¶ 141 (emphases added). Thus, Count II does not "necessarily raise a stated federal issue ..." Grable, 545 U.S. at 314. Similarly, Count VI alleges that the Armslist defendants aided and abetted (1) a § 922(d) violation, (2) the negligent entrustment of the murder weapon by Linn to Radcliffe Haughton, and (3) the negligent and reckless operation of Armslist.com. Complaint, ¶¶ 172-74. The latter two theories are creatures of state law, not disputed federal issues.
§ 922(g) makes it illegal for certain persons to possess or transport firearms - those persons to whom it is illegal to sell firearms under § 922(d).
Armslist argues further that Count VI contains two separate claims, one state and one federal, not alternative theories of liability. This is wrong because Count VI is premised upon the same conduct: "acting in concert to broker the transaction between a dangerous, prohibited purchaser, Radcliffe Haughton, and Linn, shifting the responsibility of vetting purchasers to Linn, whom the Armslist Defendants knew or should have known would be unqualified to perform such vetting, and otherwise acting recklessly and negligently." Complaint, ¶¶ 172, 174. "A 'claim for relief seeks redress of a distinct wrong; a distinct legal underpinning differs from a new claim ..." N.A.A.C.P. v. Am. Fam. Mut. Ins. Co., 978 F.2d 287, 291 (7th Cir. 1992); see also Broder v. Cablevisions Sys. Corp., 418 F.3d 187, 194 (2d Cir. 2005) ("One of the key characteristics of a mere 'theory,' as opposed to a distinct claim, is that a plaintiff may obtain the relief he seeks without prevailing on it") (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 810-13 (1988)).
Armslist also argues that Daniel is using federal aiding and abetting law couched as a state tort claim in an effort to impose a background check requirement on private gun sales over the internet. Gun control is not exclusively a federal issue, evidenced by the fact that ten states and the District of Columbia already require background checks for private gun sales. A ruling from a Wisconsin state court imposing liability in this case will not impose a nationwide rule, and thus will not intrude on any federal prerogative.
Cal. Penal Code §§ 27545, 27850; Colo. Rev. Stat. § 18-12-112; Del. Code tit. 11, § 1448B; N.Y. Gen. Bus. Law § 898; Or. Rev. Stat. § 166.438; Was. Rev. Code § 9.41.113; R.I. Gen. Laws §§ 11-47-35 to 11-47.35.2; Conn. Gen. Stat. §§ 29-33(c), 29-37a; D.C. Code Ann. § 7-2505.02; Md. Code Ann., Pub. Safety §§ 5-117, 5-118, 5-121, 5-124; Pa. Cons. Stat. § 6111.
Federal law does not impose a background check requirement for private online sales, but President Obama recently announced his intention to issue an executive order targeting online marketplaces such as Armslist.com.
http://www.npr.org/2016/01/06/462114352/obama-aims-to-expand-background-checks-to-online-gun-sales (accessed Feb. 12, 2016). --------
Finally, Armslist cites the Communications Decency Act, 47 U.S.C. § 230, which creates a federal immunity to any cause of action that would make internet service providers liable for information originating with a third-party user of the service. See Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). Armslist concedes that a federal defense does not create federal question jurisdiction, but argues that the CDA is further evidence of the important federal issues raised in this lawsuit. From there it does not follow that this case arises under federal law, as discussed herein.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT plaintiff's motion to remand [ECF No. 19] is GRANTED.
Dated at Milwaukee, Wisconsin, this 17th day of February, 2016.
BY THE COURT:
HON. RUDOLPH T. RANDA
U.S. District Judge
Online Gun Exchange Not Liable for Murder Victim’s Death, Appeals Court Says.
View Article in the
Wall Street Journal
Victims of gun violence — and their families — often have a hard time winning lawsuits against gun makers and sellers.
Lawsuits against websites that facilitate private firearm sales might not fare much better, judging from a federal appeals court ruling handed down Tuesday.
The Seventh U.S. Circuit Court of Appeals in Chicago upheld a trial judge’s decisionto dismiss a lawsuit brought by the brother of a woman killed with a handgun purchased through Armslist.com, an online marketplace for privately owned guns. The three-judge panel ruled that Armslist did not owe a “duty of care” to the plaintiff or his sister, and therefore the plaintiff could not prove negligence.
The quick backstory: In 2011, according to the opinion, Jitka Vesel was shot with a handgun illegally purchased by Demetry Smirnov, a Russian immigrant living in Canada. Mr. Smirnov found the weapon through Armslist.com, and purchased the gun in Seattle from a man named Benedict Ladera for $400. Because Mr. Smirnov lived in Canada, and had crossed state lines to buy the gun, the purchase violated federal law.
Soon thereafter, according to the opinion, Mr. Smirnov went to Chicago and began stalking Ms. Vesel, whom he met online but who spurned his romantic advances. In April, 2013, Mr. Smirnov shot and killed Ms. Vesel with the firearm purchased illegally from Mr. Ladera.
Ultimately, Mr. Smirnov pleaded guilty to murder; Mr. Ladera pleaded guilty to illegally selling a firearm.
Ms. Vesel’s brother, Alex Vesely, sued neither Mr. Smirnov nor Mr. Ladera. Rather, he sued Armslist.com, alleging that Armslist.com’s negligence contributed to Ms. Vesel’s death.
The lower court disagreed, and dismissed the lawsuit. On Tuesday, the court upheld that ruling, finding, in essence, that Armslist.com encouraged no one to behave illegally, and therefore shouldn’t be held responsible.
Wrote the court:
Armslist permitted [the seller] to place an advertisement on its website and nothing more. It did not invite [the seller or buyer] to break the law. [The] allegations fall short of alleging any cognizable negligence claim for which Armslist could be held responsible for [the buyer's] acts.
Lawyers for Mr. Vesely did not immediately respond to requests for comment Tuesday night.
A lawyer for Armslist.com, James Vogts, told Law Blog that “while Ms. Vesel’s death was a tragedy, this was a lawsuit that had no merit and should never have been filed.”
Brady Campaign Lawsuit Against Armslist.com — Preempted by Federal Law?
On April 13, 2011, Jitka Vesel, a 36-year-old immigrant from the Czech Republic was shot and killed by Demetry Smirnov, a Russian immigrant residing in Canada who had met Jitka online a few years earlier. Smirnov stalked her to her workplace parking lot where he shot her 11-12 times with a .40-caliber handgun….
The complaint alleges that [Smirnov] illegally purchased from a private seller whom he located through armslist.com, an online gun auction site owned by defendant Armslist, LLC. The complaint alleges that the website’s design facilitates illegal gun sales to unlawful gun buyers with no background checks and no questions asked, and encourages and enables users to evade laws that allow private sellers to sell firearms only to residents of their own state by enticing prospective buyers to search for and find gun sellers throughout all 50 states….
Now a bit of legal background on federal gun law: Generally speaking, nonprofessional sellers — i.e., those who aren’t in the business of selling guns (and thus aren’t required to become “federal firearms licensees,” or FFLs) — may sell guns to buyers from their own state, without doing a background check. That rule, which is that a background check isn’t required for nonprofessional sellers, was a compromise implemented at the time the federal background check law was enacted; it’s controversial (and is indeed the source of the misnamed “gun show loophole”), but it’s the law. Some states require that such nonprofessional seller transactions go through FFLs, who have to perform the background checks; but to my knowledge most states don’t impose such a requirement.
Under federal law, nonprofessional sellers can’t sell directly to nonprofessional buyers in other states, but they can sell through FFLs in those states. So if someone in Indiana has a gun that I like, he can sell it through a California FFL, and I can buy it through that FFL. (Naturally, the local FFL will probably charge a fee, which varies with the FFL, but it need not be so high as to stymie the transaction.)
People who are barred from buying a gun (for instance, because they are felons, or foreigners, with some exceptions) are also barred from buying a gun from a nonprofessional seller. The nonprofessional sellers are also barred from selling guns to these prohibited buyers, if the sellers “know or hav[e] reasonable to cause to believe” that the buyers aren’t allowed to buy the guns. But there’s nothing inherently illegal under federal law about a nonprofessional seller-buyer transaction, again whether or not you think such transactions should be illegal.
The lawsuit, of course, is a civil claim, not a criminal prosecution; it asserts that, under Illinois law, ArmsList.com’s operation is negligent, because its facilitation of private seller gun transactions creates an unreasonable risk of harm. The main thrust of the argument seems to be that “Armslist breached [the] duty [of reasonable care] by designing its website to encourage its users to circumvent existing gun laws, which prohibit private sellers from selling firearms to residents of another state or country, by easily enabling prospective purchasers to search for and find gun sellers in any and all states.”
Now the lawsuit probably isn’t preempted by the Protection of Lawful Commerce in Arms Act, since that applies only to lawsuits against gun manufacturers, gun sellers, and trade associations; ArmsList isn’t covered. But I do think that it’s preempted by 47 U.S.C. § 230, which generally bars lawsuits against Internet service or content providers based on speech posted by other parties. Section 230 applies to advertisements as much as to other speech.
Armslist Found Not Liable By Wisconsin Supreme Court
MADISON, Wis. (AP) -- The Wisconsin Supreme Court says a firearms marketplace website that a man used to buy the gun he used to kill three people in 2012 is not liable in the attack.
Radcliffe Haughton was barred by a restraining order from legally having a gun. But he bought one through the site Armslist.com and used it to kill his wife and two of her co-workers at a suburban Milwaukee spa. He wounded four others before he killed himself.
Haughton's wife's daughter sued in 2015, alleging the website is liable. Armslist attorneys argued website operators are immune from liability arising from their sites' design under federal law.
A state appeals court rejected that argument last year. The Supreme Court reversed that ruling Tuesday, finding that Armslist isn't responsible for information posted by a third party on its website.
Armslist and Bias against Conservatives Online
Armslist and Bias against Conservatives Online via CATO.org
by John Samples
Last week, conservatives once again cried “bias” after Facebook banned a spate of popular fringe pundits and conspiracy theorists. Meanwhile, the week’s most important content moderation story went, for the most part, unnoticed. Had conservatives paid more attention to the Wisconsin Supreme Court’s ruling in Daniel v. Armslist, they might feel differently about the utility of platform intermediary liability protections like Section 230 of the Communications Decency Act, a bedrock indemnity that prevents internet platforms from liability for user behavior. While usually understood merely as a shield for social media firms, it guards a wide variety of services that utilize user-generated content, such as classified advertising or individual websites’ comments sections.
Armslist is essentially a digital classified ads section for guns. Daniel, the daughter of a shooting victim, sought to hold Armslist liable for the use of its platform by her mother’s murderer. Her suit alleged that certain features of Armslist’s site were negligently designed, without regard for how they might be used by persons prohibited from buying firearms. According to the complaint, Armslist should have anticipated that its lack of user registration requirements and the ability to search for in-state, background check-free sales would be misused by patrons prohibited from possessing firearms. In most states, it is perfectly legal to privately sell a firearm to your neighbor without utilizing the services of a federally licensed dealer. The imposition of broad liability on services that help to coordinate legal activities would burden and perhaps preclude Americans’ right to sell and buy firearms, a legal activity.
The suit against Armslist represents a growing trend of attempts to circumvent CDA 230’s protections by suing platforms for features that enable certain kinds of harmful user behavior, rather than simply suing over the behavior itself. Snapchat was recently sued for the creation of a speedometer filter by plaintiffs who were struck by a Snapchat user driving at over a hundred miles an hour (the driver was speeding in pursuit of a high speedometer reading on the Snapchat app, attempting to impress her friends with her foolishness). Thankfully, in both the Snapchat case and now in Daniel v. Armslist, judges have understood that “no matter how artfully pled”, these suits attempt to hold platforms responsible for user behavior and are therefore precluded by CDA 230.
Digital classified ads services and speedometers are neutral tools. Chief Justice Patience D. Roggensack writes in Armslist: “All of these features can be used for lawful purposes, so the CDA immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes.” So long as a given feature can be used lawfully, service providers cannot be held liable for their unlawful use: doing so would unreasonably burden lawful users of the tool in question. Just because Uber can be used to summon a getaway vehicle after a heist does not render Uber a getaway car-hailing service. Had Armslist been decided differently, or if CDA 230’s protections were to be limited or eliminated, these tools would not be commercially viable.
The conservative claims about social media bias may lead to legislative revisions to CDA 230. Those revisions could easily restrict current CDA 230 protections for businesses like Armslist. Indeed, some on the left would see removing such protections as a goal of revising CDA 230. The Armslist decision shows that the harm done to the Second Amendment would be real and permanent. Are the speculative gains of seizing control of Facebook’s content moderation really worth the risks to the Second Amendment? Won’t this be a case of unintended consequences of the sort conservatives used to warn us about so many, many years ago?
Stokinger v Armslist - DISMISSED