April 20, 2018 / 9:22 PM / a year ago

A how-to guide for suing websites that allow private gun deals

(Reuters) - A state appellate court in Wisconsin ruled Thursday that the daughter of a woman killed in a mass shooting at a beauty salon can sue the online weapons-dealing site Armslist.com for allowing the gunman to obtain a weapon.

At the time of the shooting, the murdered woman’s estranged husband, Radcliffe Haughton, was barred from purchasing a firearm because of a domestic violence injunction. According to the lawsuit, Haughton was able to buy a gun via Armslist because the website is designed to enable online back-alley deals for people who can’t purchase weapons legally.

This decision in Daniel v. Armslist is going to be controversial. The appellate panel, Presiding Judge Paul Lundsten and Judges Brian Blanchard and Michael Fitzpatrick, acknowledged that its ruling is at odds with precedent from several federal courts. But Judge Blanchard’s explanation of the panel’s reasoning is diligent and careful. If the decision holds up, it’s a veritable how-to guide for suits against websites that enable illegal gun sales.

The Wisconsin case, unlike the many gun liability suits that have examined the scope of state and federal laws shielding licensed gun makers and sellers from liability for shootings, turned on the court’s interpretation of the Communications Decency Act.

As you’re no doubt aware, a crucial section of that law says websites cannot be held liable for publishing content provided by users. The protection can shield sites like Yelp, for instance, from libel suits when a reviewer posts defamatory comments or YouTube from copyright liability when a user uploads copyrighted content.

Over the years, the protection has steadily expanded, as Armslist detailed in its brief to the Wisconsin appeals court. Courts have interpreted the CDA to immunize online publishers even from accusations of facilitating crimes. One of the best-known decisions is the 1st U.S. Circuit Court of Appeals’ rejection of claims against Backpage by alleged sex-trafficking victims (817 F.3d 12), but judges have also cited the CDA in tossing cases accusing Craigslist of facilitating prostitution and housing discrimination, Lycos of cyberstalking and securities fraud, and Facebook and Twitter of abetting terrorism. In at least one previous case, 2009’s Gibson v. Craigslist, the CDA shielded an online publisher from liability to a man shot with a handgun purchased via the website.

The Wisconsin appellate panel acknowledged the weight of that precedent – but it said case law is not as uniform as Armslist asserted. “We recognize that there is divided authority on how to interpret the pertinent language of the Act, which addresses activities in the context of relatively new and evolving technologies,” the judges said. They cited the 9th Circuit’s 2016 ruling in Doe v. Internet Brands (824 F.3d 846), in which the federal appeals court cautioned against a broad reading of the CDA’s protection, and the Washington Supreme Court’s 2015 ruling in J.S. v. Village Voice Media Holdings(359 P.3d 714), which allowed alleged sex-trafficking victims to sue Backpage for facilitating child prostitution.

Congress did not draft the CDA to be a free pass for online publishers, the Wisconsin court said. The law was written to protect websites only as the publishers of users’ content, not to shield them from all content-based liability. “If the goal of Congress were to establish the sort of broad immunity urged by Armslist, that is, immunity for all actions of websites that could be characterized as publishing activities or editorial functions, Congress could have used any number of formulations to that end,” the court said. “Instead, Congress limited immunity to a single circumstance: when a theory of liability treats the website creator or operator ‘as the publisher or speaker of any information provided by another information content provider.’”

Yasmeen Daniel’s claims against Armslist, the Wisconsin judges said, were not based on content provided by the gun purchaser, Haughton, or the seller who provided him with a weapon. The complaint, filed by lawyers from The Brady Center to Prevent Gun Violence, Manatt Phelps & Phillips and Cannon & Dunphy, alleges that Armslist is designed to allow gun sales to people who can’t buy weapons legally. (Among the site’s supposedly enabling features: Prospective buyers don’t have to register to use the site; the site uses the phrase “premium vendor” to signal which sellers are licensed and must therefore conduct background checks; and Armslist does not allow users to flag purportedly illegal content.) “Armslist knew that because of the design content it created, persons prohibited from possessing firearms would - and did - quickly, easily, anonymously, and illegally obtain guns, no questions asked,” Daniel’s lawyers said.

Armslist tried to argue that under the Communications Decency Act, all of the website’s elements are protected because everything on the site relates to “the way information is presented … or to who is allowed to use it.” The Wisconsin judges were having none of that argument. The website’s operational and design features, the decision said, were not information provided by users. They are “content created by Armslist, and there is no language in the (CDA) immunizing Armslist from liability based on content that it creates.”

So that’s the secret for future suits against Armslist and any other site accused of enabling illegal gun sales: Allegations must be based on the website’s design and operation, not on a seller’s ad or a buyer’s response.

Brady Center co-president Avery Gardiner said the Wisconsin ruling won’t expose licensed gun dealers to liability for online sales if they follow the regulations barring sales to buyers who flunk background checks. But the decision, she said, should help “keep guns out of the hands of dangerous people.”

Armslist appears to be the biggest website for private gun sales, Gardiner said, but Backpage also allows ads for private gun deals. (Facebook tried to impose a ban on private gun sales on its site, but Gardiner said buyers and sellers have figured out ways to get around the prohibition.)

Most importantly, Gardiner said, the ruling is a step toward justice for the Brady Center’s client, who was at the salon when Haughton shot her mother and two other victims. “That’s our first goal,” Gardiner said.

I left a phone message for Armslist lawyer Joshua Maggard of Quarles & Brady but didn’t hear back.

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