The Volokh Conspiracy
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From Judge William Griesbach's opinion Tuesday in Webber v. Armslist LLC (E.D. Wisc.):
Plaintiff Richard Webber, as special administrator for the estate of his daughter, Sara Schmidt, filed this diversity action against Defendants Armslist LLC and Jonathan Gibbon….
Armslist is an online marketplace for guns. Generally, only licensed firearm dealers, known as Federal Firearms Licensees (FFLs), may sell firearms but only on the condition that various safeguards be taken, such as the completion of a background check on the purchaser and completion of a record of sale. However, "occasional" gun sales by private, non-FFL sellers may be transacted without those federal requirements. Armslist allegedly facilitates these occasional sales between private parties and those who would otherwise be disqualified from owning a firearm under federal or state law. Plaintiff alleges that Armslist "chose to design and build Armslist.com to allow, enable and assist illegal gun buyers and sellers to buy and sell guns" without investigation into whether purchasers were eligible to purchase a firearm.
As a result of Armslist's design decisions and business practices, Plaintiff alleges, Schmidt's estranged husband, who was prohibited from owning a firearm …, was able to purchase a firearm from a private seller who listed a firearm for purchase on Armslist.com. Shortly thereafter, Schmidt's estranged husband used the firearm he purchased from the private seller to fatally shoot Schmidt after Schmidt had arrived at her mother's house to drop off her three children. Schmidt's estranged husband then committed suicide in the backyard of the house. Plaintiff alleges that, but for Armslist's failure to enact adequate safeguards, and but for Armslist's conscious decision to design Armslist.com in an irresponsible, unreasonable, and unlawful manner, Sara Schmidt's estranged husband would not have been able to purchase the firearm that he used to kill her.
The court rejected Armslist's 47 U.S.C. § 230(c)(1) defense:
While courts have grappled with interpreting § 230, the prevailing view among the Courts of Appeals is that § 230(c)(1) "provides broad immunity from liability for unlawful third-party content." Applying this broad interpretation, a divided Wisconsin Supreme Court held in Daniel v. Armslist, LLC, that § 230 of the CDA barred claims against Armslist for the death of a woman killed in a mass shooting in Brookfield, Wisconsin by a perpetrator who illegally purchased the gun he used from a private seller he found on Armslist's website. Of course, the Wisconsin Supreme Court's interpretation of federal law is not binding on this Court.
While other circuits have granted blanket protection under § 230, the Seventh Circuit, whose decisions are binding on the Court, appears to have been less willing to do so. Indeed, the Seventh Circuit has said that § 230(c)(1) plays a limited role, noting that it merely "limits who may be called the publisher [or speaker] of information that appears online," and while that "might matter to liability for defamation, obscenity, or copyright infringement," that does not necessarily mean it will have a role to play in all cases….
The Seventh Circuit is not alone in its reservations against construing § 230 so broadly. In a statement agreeing with the Supreme Court's decision to deny a writ of certiorari for a Ninth Circuit case denying immunity under § 230 to an internet service provider alleged to have engaged in anti-competitive behavior, Justice Thomas highlighted the issue of "whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms." Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC (2020) (Statement by Thomas, J.). Justice Thomas observed that "courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms," arguably extending § 230 immunity "'far beyond anything that plausibly could have been intended by Congress.'" Justice Thomas questioned various expansions of § 230 immunity, but most pertinent to the case at hand, he specifically questioned the grant of immunity against claims, like this one, that rested on "alleged product design flaws—that is, the defendant's own misconduct." …
Plaintiff seeks to hold Defendants liable for their "role in developing or co-developing [their] own content." Specifically, Plaintiff faults Defendants for failing to prohibit criminals from accessing or buying firearms through Armslist.com; actively encouraging, assisting, and facilitating illegal firearms transactions through their various design decisions; failing to require greater details from users, such as providing credit-card verified evidence of users' identities; failing to require that sellers certify under oath that they are legal purchasers; and failing to provide regularly updated information regarding applicable firearms laws to its users, among many other things. In essence, the complaint "focuses primarily on Armslist's own conduct in creating the high-risk gun market and its dangerous features," not on the post in question. This type of claim, then, does not seek to treat Defendants as the "publisher or speaker" of the post that led to Schmidt's killer obtaining a firearm; rather, it seeks to hold Defendants liable for their own misconduct in negligently and recklessly creating a service that facilitates the illegal sale of firearms. For these reasons, the Court concludes that § 230 does not immunize Defendants from liability in this case.
Nonetheless, the court concluded that Armslist was immune under Wisconsin law, among other things on the following grounds:
Under Wisconsin law, even when a negligence action is properly pled and all of the elements of the cause of action met, liability may be limited as a matter of law where considerations of public policy require dismissal of the claim and relieve the defendant of liability in a particular case. Wisconsin courts have identified six factors that may operate to preclude liability:
(1) the injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tortfeasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden on the negligent tortfeasor; or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance for recovery would enter a field that has no sensible or just stopping point….
In Daniel, the Wisconsin Supreme Court found the plaintiff's claims against Armslist were barred under the CDA and thus did not reach the question of whether the complaint otherwise stated a claim of negligence…. Here, the Court concludes that Wisconsin's public policy bars this suit.
Because the injury Plaintiff suffered is too remote from and out of proportion to Defendants' conduct and allowing recovery in this case would place an unreasonable a burden on Defendants. Although intentional criminal acts "are not a superseding cause per se," "acts that are either criminal or intentionally tortious … are more likely to be adjudged superseding causes than merely negligent acts." In this case, after purchasing a firearm from a private party based on an advertisement he saw on Armslist.com, Schmidt's killer used the gun to commit an abhorrent and tragic crime.
Whatever role Defendants may have played prior to Schmidt's tragic murder, the Court concludes that the conscious, pre-meditated decisions and actions of Schmidt's killer served as a superseding cause of Plaintiff's injury. True, Defendants may have owned and operated the website used by Schmidt's killer to obtain the firearm utilized in Schmidt's murder, but lawfully providing a forum for individuals to engage others interested in buying and selling firearms is simply too far removed from and out of proportion to the criminal act committed by Schmidt's killer. "[S]imply enabling consumers to use a legal service is far removed from encouraging them to commit an illegal act."
Imposing civil liability on Defendants for Schmidt's murder is also out of proportion to the lawful conduct in which they engaged and would likely destroy their business. Indeed, the latter might be Plaintiff's goal. This case, and many like it, represent a nationwide effort to use litigation as a way of circumventing the legislative process in the area of gun control. See Timothy D. Lytton, Lawsuits Against The Gun Industry: A Comparative Institutional Analysis, 32 Conn. L. Rev. 1247 (2000). But determining public policy based on one tragic set of circumstances is not the proper function of courts or juries.
To be sure, there may be good reasons to prohibit websites, such as Armslist, that connect private gun sellers with gun buyers, some of whom are intent on violating federal and state laws prohibiting certain individuals from owning or possessing guns. In a government such as ours, however, public policy is more properly determined by the peoples' elected representatives rather than by the courts. The legislative process allows a full airing of all possible reasons both for and against a proposed policy and the potential consequences of adopting it. A single lawsuit focused on the tragic loss of a young woman's life does not….