April 30, 2019 – The Wisconsin Supreme Court has ruled (5-1) that a woman’s lawsuit against a classifieds firearm website is barred. The suit alleges a gunman used the website to purchase a gun, then used the firearm in a mass shooting the next day.
In 2012, Radcliffe Haughton opened fire inside the Azana spa in Brookfield. Haughton killed his estranged wife Zina, who worked at the spa, and two other victims. Zina’s daughter, Yasmeen Daniel, was inside the spa and witnessed the shooting.
On behalf of her mother’s estate, Daniel filed a lawsuit against the company that operates the firearms website, Armslist.com, alleging the company was liable for facilitating an illegal firearm sale. Haughton was prohibited from possessing firearms under a restraining order that Zina had previously obtained against Haughton.
A circuit court dismissed the lawsuit against Armslist LLC, an Oklahoma company, concluding the website had immunity under the federal Communications Decency Act of 1996, which immunizes websites that host or provide forums for third-party speech.
In other words, the Communications Decency Act (CDA) protects website platforms, such as eBay or Craigslist, which merely host content posted by third-parties.
Specifically, the federal law says “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The complaint alleged that Haughton had responded to a private seller’s “for sale” post that appeared on Armslist.com, advertising the sale of ammunition and firearms.
Haughton arranged to meet the private seller, Devin Linn, in the parking lot of a fast-food restaurant and purchased a semi-automatic handgun and three high-capacity magazines. The next day, Haughton used the gun to kill his wife and two others.
Daniel’s lawsuit alleged various theories of negligence, civil conspiracy, aiding and abetting tortious conduct, and wrongful death.
Supreme Court Reverses Appeals Court
After the circuit court dismissed the case, Daniel appealed. A three-judge panel for the Wisconsin Court of Appeals reversed the circuit court, concluding the Communications Decency Act (CDA) did not bar Daniel’s lawsuit against Armslist.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The appeals court, in a published opinion, ruled that the Act “does not protect a website operator from liability that arises from its own conduct in facilitating user activity.” The appeals court ruled that the website’s features facilitated illegal firearms transactions.
But in Daniel v. Armslist LLC, 2019 WI 47 (April 30, 2019), the state supreme court reversed the appeals court, concluding the CDA does bar Daniel’s lawsuit against Armslist, rejecting Daniel’s claim that Armslist contributed to the published content.
The court, in a majority opinion by Chief Justice Patience Roggensack, noted that “courts have denied immunity when an interactive service provider materially contributes to the illegality of the content itself,” but that didn’t happen here.
Daniel argued that Armslist knew or should have known that its website would facilitate illegal firearm sales to dangerous people such as Haughton. But the majority said that wasn’t the issue – the issue was whether Armslist was an “information content provider,” and not merely the passive host of a website for third-party speech.
“In this case, Armslist did not develop the content of Linn’s firearm advertisement, so Armslist is not an information content provider with respect to the advertisement,” wrote Chief Justice Roggensack.
The majority noted that private sellers of firearms in Wisconsin are not required to conduct background checks on buyers, and no mandatory waiting period applies to private sellers. “Accordingly, the option to search for offers from private sellers is a tool that may be used for a lawful purpose,” Chief Justice Roggensack wrote.
“Whether or not Armslist knew illegal content was being posted on its site, it did not materially contribute to the content’s illegality,” she wrote. The majority noted other cases, including one from the federal Ninth Circuit, concluding that immunity is upheld unless the website very clearly participates in developing the illegal content that it hosts.
“[A]llowing plaintiffs to escape the CDA by arguing that an interactive computer service provider intended its neutral tools to be used for unlawful purposes would significantly diminish the protections offered” by the CDA, Chief Justice Roggensack wrote.
Justice Ann Walsh Bradley wrote the lone dissent. She said that the lawsuit should not be barred at this pleading stage. The allegations, she noted, “assert liability for Armslist not based on content provided by another. Rather, the allegations assert liability based on design content Armslist alone created,” Justice A.W. Bradley wrote.
Justice Shirley Abrahamson did not participate.