Armslist Not Liable for Hosting Gun Sale Ads That Led to Purchases by People Who Used the Guns Criminally

The Seventh Circuit so holds, applying Wisconsin tort law, and not reaching the 47 U.S.C. § 230 issue.

From Monday's decision in Webber v. Armslist LLC, decided by the Seventh Circuit in an opinion by Judge Michael Brennan, joined by Judges Joel Flaum and Michael Scudder:

Erin Bauer and Richard Webber are the legal representatives and family members of two individuals killed using guns that had been listed on armslist.com, an online firearms marketplace. Bauer and Webber each sued Armslist LLC …, alleging negligence and other Wisconsin state law claims. The plaintiffs assert that the defendants designed the website to encourage and assist individuals in circumventing federal and state law regulating firearms. The defendants argue that the plaintiffs have failed to state a claim upon which relief can be granted because publishing third-party offers to sell firearms does not establish tort or other liability under Wisconsin law.

Because we affirm on the state law claims, we decline to rule on the [§ 230] preemption issue….

Armslist.com is an online marketplace for firearms…. Armslist LLC is not engaged in the business of selling firearms. Rather, its website hosts "for sale" and "want to buy" ads posted by users….

The plaintiffs level serious accusations against the defendants. They allege that armslist.com allows individuals to engage in the business of selling firearms without a license and to circumvent federal and state law governing firearms dealers, including avoiding background checks. The defendants purportedly accomplished this through design and content features. Among these are choosing to label purchases and sales as private party transactions by default. The plaintiffs also claim that armslist.com allows users to filter listings to identify private party sellers. This "filter function" allegedly facilitates the private sale of firearms without background checks to individuals prohibited from possessing firearms.

The plaintiffs also contend the defendants provided certain assurances that enabled both buyers and sellers to operate anonymously, including that:

• "ARMSLIST DOES NOT become involved in transactions between parties and does not certify, investigate, or in any way guarantee the legal capacity of any party to transact";
• "ARMSLIST can not and will not be a party in transactions. It is the sole responsibility of the buyer and seller to conduct safe and legal transactions";
• "You can perform all of the major functions without creating an account"; and
• Armslist will not contact a seller on behalf of a user or provide a user with information about another user but can provide this information to law enforcement during due process of law.

In addition to contending that the website's design is flawed, Bauer and Webber allege that Armslist LLC and Gibbon should have implemented certain design features, adopted by other online firearm marketplaces, to prevent illegal transactions. These include requiring evidence of the legality of the transactions, background checks and transaction records, delivery through federal firearms licensees, and a waiting period. They also include taking certain actions with respect to high volume sellers, allowing users to flag illegal conduct, and providing updated information on firearms laws….

A negligence claim under Wisconsin law consists of four elements: duty, breach, causation, and damages…. [W]e focus on the third [element], causation.

Legal cause under Wisconsin law has two components: cause-in-fact and public policy factors…. The public policy factors address whether the cause of the harm is legally sufficient to permit recovery. In other words, under Wisconsin law, "[p]roximate cause involves public policy considerations for the court," although the term "proximate cause" is no longer used.

The six public policy factors Wisconsin courts consider when deciding whether to limit liability are: (1) "[T]he injury is too remote from the negligence"; (2) "Recovery is 'too "wholly out of proportion to the culpability of the negligent tort-feasor" ' "; (3) "[I]n retrospect it appears too highly extraordinary that the negligence should have brought about the harm"; (4) "Allowing recovery 'would place too unreasonable a burden upon [the tortfeasor]' "; (5) "Allowing recovery would be 'too likely to open the way to fraudulent claims' "; or (6) "Allowing recovery 'would "enter a field that has no sensible or just stopping point." ' " Because these factors are set out in the disjunctive, a finding that one is satisfied is sufficient to preclude liability….

The key legislative enactment guiding our discussion is Wisconsin Statute § 175.35, which regulates the purchase of handguns. That statute defines "firearms dealer" as "any person engaged in the business of importing, manufacturing or dealing in firearms and having a license as an importer, manufacturer or dealer issued by the federal government." § 175.35(1)(ar). By referring to the federal licensing scheme, the state statute incorporates certain definitions provided under federal law. First, a "licensed dealer" is "any dealer who is licensed under the provisions of this chapter," and a "dealer" includes "any person engaged in the business of selling firearms at wholesale or retail." The term "engaged in the business," however, "shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms." Therefore, the provisions of § 175.35 governing firearms dealers exclude individuals making occasional sales and exchanges—that is, private sellers. Wisconsin law compels firearms dealers to obtain evidence of the legality of the transaction, conduct background checks, and keep transaction records, among other requirements….

The allegations of Armslist LLC's negligence track the same three categories:

1. Evidence of Legality. Bauer and Webber contend Armslist LLC breached its duty by failing to require buyers and sellers to provide information about the legality of transactions. They specifically allege that Armslist LLC failed to demand greater transparency from users, such as by requiring both buyers and sellers to create accounts and provide credit-card verified evidence of their identities. They also aver Armslist LLC failed to oblige buyers and sellers to certify and provide evidence that they are legal transactors. Bauer adds that Armslist LLC was negligent in failing to require buyers and sellers to register.
2. Background Checks and Transaction Records. Bauer and Webber further allege that Armslist LLC breached its duty by failing to require or recommend that sellers conduct background checks. Webber adds that Armslist was negligent in failing to require or recommend that sellers create transaction records.
3. Delivery and Waiting Period. Bauer and Webber also claim that Armslist LLC was negligent in failing to require purchasers from private sellers to take delivery of the firearm through a federal firearms licensee, who would run a background check and create transaction records. Webber further alleges that Armslist LLC was negligent in failing to impose a reasonable waiting period for delivery of a firearm purchased through the website.

As shown above, Wisconsin Statute § 175.35 regulates each of these aspects of handgun sales. Concluding that the allegations in these three categories state a negligence claim would directly contravene the Wisconsin legislature's judgments, as reflected in Wisconsin Statute §§ 175.35 and 66.0409.

Section 175.35 requires firearms dealers—not websites, private sellers, or other entities—to obtain certain evidence of the legality of a transaction, the first category. Armslist LLC is not a firearms dealer. Concluding that the allegations in this first category can proceed would impose the responsibilities of firearms dealers on actors which the Wisconsin legislature has not chosen to regulate in this manner. It would also hold Armslist LLC liable for failing to operate as an arm of the state where Wisconsin has not given it this function. Just so, on allegations about background checks and transaction records—the second category—the Wisconsin legislature has not chosen to regulate websites or private sellers, such as Verstagen, or to oblige them with enforcement.

Under § 175.35, neither a method of delivery nor a waiting period is specified—the third category—even for firearms dealers. That statute also incorporates the federal definition in 18 U.S.C. § 921 of "engaged in the business" of dealing in firearms, which expressly exempts private sellers from its requirements. Therefore, the Wisconsin legislature has chosen not to impose delivery specifications on handguns obtained via private sale, the third category. Nor has it imposed a waiting period on transactions. In fact, a forty-eight-hour waiting period that formerly existed under Wisconsin law was eliminated in later versions of § 175.35.

Armslist LLC is not a firearms dealer—rather, it operates a website that hosts third-party advertisements for the sale and purchase of firearms. The state has not entrusted it with enforcing the provisions of the regulatory scheme governing handgun transfers. It follows that Armslist LLC has no statutory obligation to collect identification, require certification and evidence of legal transactions, mandate or recommend background checks or recordkeeping, or regulate the delivery of firearms. If we decided that plaintiffs stated a negligence claim against Armslist LLC based on these three categories of allegations, that conclusion would contravene the Wisconsin legislature's judgment on which entities—i.e., firearms dealers—will be held liable for meeting the requirements of state and federal law. Wisconsin has not chosen to include websites hosting firearms transactions as among the actors regulated in the ways plaintiffs allege, a decision that must be respected. Wisconsin has also chosen to exempt private sellers, like Verstagen, from certain requirements, and has made the decision to eliminate a waiting period on handgun purchases. We decline to redefine what is politically appropriate for the state or to find liability where Wisconsin has not expressed it should exist….

Although most of plaintiffs' allegations fall into these three categories and are in unmistakable tension with Wisconsin's legislative enactments, we see three sets of allegations that are not:

• High Volume Sellers. Bauer alleges Armslist LLC was negligent in failing to: monitor high volume sellers, design its website to prevent unlawful high volume sales, remove sellers engaged in the business of selling firearms without a license, provide users with tools to report repeat offenders, notify law enforcement of users engaged in the business of selling firearms, and inform users that law enforcement will be notified of persons who appear to be engaged in selling firearms without a license.
• Flagging Illegal Conduct. Plaintiffs also claim Armslist LLC was negligent in failing to enable users to flag potentially illegal conduct and alert it and law enforcement of this activity.
• Providing Updated Firearms Law. Bauer and Webber aver Armslist LLC breached its duty by failing to provide "extensive and regularly updated" information regarding all applicable firearms laws….

Bauer's high-volume seller claim fails due to a break in the chain of causation. Even if we assume Bauer's high volume seller allegations adequately plead duty and breach, Bauer does not plead any facts that demonstrate Jones was prohibited by law from purchasing firearms. Rather, Bauer alleges only that Jones had been previously arrested on drug charges; Bauer does not claim that Jones had been charged with any crime that would have precluded him from lawfully obtaining a firearm. What is more, Bauer pleads only that Jones "may have feared" he would be unable to pass a background check, as opposed to alleging that a background check would have affirmatively prevented him from buying a gun. Private sales are legal in Wisconsin, and Bauer has not alleged that Jones unlawfully obtained the firearm at issue. Reasonable people could not disagree that Bauer failed to plead that Armslist LLC's alleged negligence was actively operating when Jones obtained the firearm. Bauer thus has not alleged causation as a matter of law in a high-volume seller claim.

We reach the same conclusion as to the other two sets of allegations. Causation is not established where the harm would have occurred even absent the defendant's negligence. Bauer and Webber have failed to plausibly plead that the deaths would not have occurred but for Armslist LLC's failure to permit users to flag illegal conduct. In fact, in its website's terms of use, Armslist LLC provided the contact information number for the Bureau of Alcohol, Tobacco, Firearms and Explosives. Given that users could report the same conduct directly to ATF, plaintiffs do not explain how allowing users to flag conduct would plausibly have prevented the deaths.

Plaintiffs have also failed to plausibly allege that the deaths would not have occurred but for Armslist's failure to provide updated firearms laws. Bauer and Webber do not allege any facts about the effect of providing updated firearms information on the likelihood that individuals will engage in illegal transactions. Without these allegations, we cannot conclude that plaintiffs have plausibly alleged providing updated firearms laws would have prevented the deaths.

Even if we assume the duty and breach elements of negligence have been satisfied, these three additional sets of allegations, not precluded by Wisconsin Statute § 175.35, do not survive the plausibility standard necessary to plead a negligence claim. None of these allegations plead factual content that allows the court to draw the reasonable inference that the defendants are liable for the misconduct alleged. Put another way, the allegations in any of these three sets do not plausibly show that Armlist LLC caused the deaths of Commander Bauer and Sara Schmidt….

As an alternative causation analysis, we consider plaintiffs' allegations under two of the public policy factors, the second (disproportionate liability) and the sixth (no sensible or just stopping point).

In Webber, the district court ruled that the plaintiff's negligence claim was precluded, including by the second policy factor of disproportionate liability. He concluded that imposing civil liability here would likely destroy Armslist LLC's business. In Bauer, the district court declined to base its decision on the public policy factors.

Out of proportion to culpability. Bauer and Webber argue that Wisconsin courts have invoked this public policy factor only when the defendant's blameworthiness is minimal at the time the risk materializes, or if it is more than minimal, the cost of injury is so high that it is out of proportion with the defendant's culpability. Among the cases plaintiffs cite for this proposition is Stephenson.

Armslist LLC counters that because it did not use, distribute, or sell a firearm to anyone, holding it responsible for the murders would be disproportionate to its culpability. It also refers to Daniel and argues that creating and operating a website that enables buyers to find information posted by third-party sellers is legal.

In Stephenson, the Wisconsin Supreme Court concluded that recovery was precluded on this factor against an individual who agreed to drive an inebriated person home, causing a bartender to serve that person more alcohol. It reasoned, in relevant part, that liability was disproportionate considering the state's immunity laws. If the defendant had been a social host who had served alcohol to the defendant, he would be immune from suit. "It defies common sense to hold someone in [the defendant]'s position liable while immunizing someone who serves or even encourages alcohol consumption."

Based on Stephenson, this second factor precludes liability in Webber on all allegations within the three categories referred to above. As in that case, statutes inform culpability. Private sellers are exempt from the requirements plaintiffs seek to impose. Verstagen is a private seller, and thus has no obligation to certify, investigate, or delay the transaction. To impose those requirements on Armslist LLC, the website hosting Verstagen's transaction, would place liability on an actor one step removed from Verstagen, and circumvent legislative judgment. See id. For these reasons, we agree with the district court's analysis and conclusion on this second factor in Webber.

No sensible or just stopping point. Under the sixth public policy factor, Armslist LLC contends that because plaintiffs will always conjure creative arguments about what a firearms platform should have done to prevent harm, liability here has no sensible or just stopping point. Armslist LLC argues that potential harm is not limited to firearms and could apply to any product that could harm someone. Plaintiffs respond there is no liability if a defendant played no role in a harm, but here the defendants consciously created, designed, and maintained a website to allow and encourage illegal firearms sales. Per plaintiffs, the stopping point would be a jury's decision that Armslist LLC acted reasonably.

At the end of its discussion of this sixth factor in Stephenson, the Wisconsin Supreme Court stated that "the possibilities for expanding liability … would also threaten to run counter to the legislative enactments regarding immunity." That court continued, "Finally, we give significant weight to the fact that the production, sale, distribution, vending, and consumption of alcoholic beverages are highly regulated by the legislature." "Given this history and the current state of the law, we are reluctant to create liability where the legislature has not expressed that there should be any. We think that it is more appropriate that the legislature decide whether or not someone who agrees to drive an intoxicated person home should be an exception to the legislature's general policy of holding the intoxicated persons themselves liable for injuries they cause."

In Smaxwell, the same court ruled that the sixth factor precluded liability against a landowner for harm caused by a tenant's dogs. This was in part because allowing liability would contradict a state statute imposing strict liability exclusively on owners for injuries caused by dogs.

Under the reasoning of Stephenson and Smaxwell, this sixth factor precludes liability in Webber and Bauer. The same concerns exist with expanding liability counter to legislative enactments on the purchase of handguns. Wisconsin statutes regulate the entities that qualify as firearms dealers; other actors are not subject to those statutes and have not been charged with enforcing them. To allow liability on those other actors, such as private sellers—and here a website—would contradict that legislative judgment. The same holds true for the lack of a principled stopping point. If liability is permitted here, there would be no distinction between firearms dealers and exempt entities, a line Wisconsin law has drawn….

Timothy Moore and Brian A. Sutherland (Reed Smith LLP) represent the defendants.

Comments

[Martinned]

Silk Road says hi!

[Eugene Volokh]

Hi, Silk Road! Always a pleasure to chat, including with roads that are very different from the ones we’re on. Armslist, for instance, lets people publicly advertise mostly perfectly legal transactions, though it doesn’t take substantial steps to try to frustrate illegal transactions. Indeed, as the court discussed in the aiding and abetting / civil conspiracy section,

Bauer’s allegations do not raise a plausible inference that Armslist LLC aided and abetted illegal sales. At most, he pleads facts consistent with both an intent to aid and abet and mere presence, and Armslist LLC’s actions are more likely explained by the latter. The fact that private sales are legal in Wisconsin provides an obvious alternative explanation for armslist.com’s design. Bauer also fails to point to a specific action Armslist LLC took in “continuing” to design and administer the website to promote illegal sales that might indicate an intent to assist; rather, Bauer seems to contend that armslist.com aided and abetted illegal transactions simply by virtue of its continued existence. But the failure to prevent unlawful conduct is alone insufficient to state a claim for aiding and abetting….

To support a claim for civil conspiracy, “[t]here must be intentional participation in the transaction with a view to the furtherance of the common design.” “[M]ere knowledge, acquiescence or approval of a plan, without cooperation or agreement to cooperate, is not enough to make a person a party to a conspiracy.” Plaintiffs plead facts consistent with cooperation in furtherance of an unlawful purpose, but they are also compatible—and more readily explained by—mere acquiescence. As explained above, an obvious alternative explanation for Armslist LLC’s conduct is that it designed its website to permit private sales consistent with Wisconsin law. The plaintiffs have therefore failed to move their complaints over the line from conceivable to plausible.

But, Silk Road, if you or the people who are passing along your greetings want to give an actual legal argument for why Armslist might be liable under the legal theories in your case, that would of course always be interesting.

[hoppy025]

Armslist still operates in states where private sales are not allowed. But people still use it to advertise, and then the buyer and seller (assuming they're doing so legally) meet at an FFL to do the transaction.

Does that change your analysis?

[Eugene Volokh]

hoppy025: I'm not sure I understand the question. As you point out, even in states where "private sales are not allowed," that just means that the sale has to go through an FFL, who will do the background check and charge a relatively modest fee. So the Armslist ads can indeed facilitate lawful transactions in those very states; what's wrong with that? Or is your claim that Armslist should be liable simply because people could respond to the ads in criminal ways (i.e., by engaging in a transaction that violates state law)?

[hoppy025]

No, my point is more that, in states where it's legal, there's an obvious alternative explanation, as you noted. But in the states where direct private sales are not legal, does that lead to an argument by the plaintiffs that the alternative (going to an FFL and doing the transfer there) is really just a cover for facilitating illegal activity (doing direct private sales)?

I don't think so, I'm just thinking out loud. Thank you.

[Jason Cavanaugh]

Remarkable that you would even bother to engage with someone who just a handful of days ago was commenting here about black voters being semi-retarded and incapable of electing anyone other than similarly retarded black Representatives.

I muted him permanently for those comments. I guess we have different standards...

[Martinned]

At most, he pleads facts consistent with both an intent to aid and abet and mere presence,

I guess intent is in the eye of the beholder. Because what I see has only one plausible explanation: Armslist made it as easy as to conduct illegal sales of arms as its lawyers would let it. They are hiding behind a million disclaimers but clearly aware of what people are using their website for, and making absolutely no effort to stop that. In fact, arguably those disclaimers show that they were aware of the illegal arms sales going on.

Of course, whether it is possible to impose a tort law obligation on the website in light of s. 230 is a separate matter. But that's something the court didn't even get to. And there may well be other reasons not to hold the website liable, some of which the court discusses. There's no question that American litigation culture can get quite crazy, and that it's useful to consider whether a given defendant ought to be held liable for damage that occurred at several removes from what they did.

But the idea that the defendants didn't knowingly and willingly facilitate the purchase of fire arms by people who otherwise wouldn't have been able to buy them under the applicable law is laughable.

[Brett Bellmore]

Your idea of plausible is warped. Armslist has made it as easy to conduct sales of arms as is legally possible. They are, as I said, just a firearms specific clone of Craigslist, necessitated by the fact that Craigslist is run by control freaks who don't like guns.

They're no more out to facilitate illegal sales than Craigslist is trying to make fencing stolen goods as easy as possible.

[Martinned]

Now do Grokster: https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd.

[Brett Bellmore]

The idea that a company dealing in a lawful commodity, which makes almost all of its sales off of lawful transactions, is trying to facilitate illegal uses of the product just by making ALL transactions easier, is nuts. It would be like saying that bars were not just aware that some small percentage of their customers would drive drunk, but actively trying to get people to drive drunk!

Sure, Grokster lost. I'm going out on a limb and suggesting that a pretty high percentage of Grokster's business was illegal file sharing. Now prove that of Armslist.

[MaddogEngineer]

Grokster is not even an good analogy, because people were exchanging digital copies (of copyrighted material), not physical items. If people had been using it to sell music on CDs/vinyl, there would have been absolutely nothing wrong with that.

This tort attempt is just because some people think guns are icky, and are trying to lawfare out of existence.

[Stephen Lathrop]

Except because of Section 230, what's wrong with applying the traditional standard of joint liability, shared alike by a publisher and a contributor? This is not about defamation, but the principle seems to be alike. Publishing activity is here indispensable to commission of the alleged crime, and the publisher is the party furnishing the publishing activity. And the criminal outcome is entirely foreseeable. Seems to me the only way around that is by special pleading, because guns are special.

[John F. Carr]

"Given that users could report the same conduct directly to ATF, plaintiffs do not explain how allowing users to flag conduct would plausibly have prevented the deaths."

I assume that the federal government is monitoring this site and waving red flags at high volume sellers. My local gun shop wouldn't sell to me and I need your help (wrote the FBI agent).

[Brett Bellmore]

I'd say, "Well, duh.", but it's actually pretty nice that the court didn't go all "but, guns!" on us.

No, Armslist isn't guilty for allowing sales that eventually were followed up by crimes, any more than Craigslist is guilty just because somebody who buys a used car ends up using it as a getaway car.

[Krychek_2]

I’m fine with treating guns like any other commodity. Meaning that one the one hand, you don’t sue the seller/manufacturer just because the product was used in a crime, but on the other hand the seller/manufacturer aren’t immune if in a given case they really were negligent. If a seller knew, or with reasonable prudence should have known, that it was likely a particular sale would result in a gun crime, they should be liable. As would a car dealership if it should have known it was selling a car to bank robbers planning to use it for a getaway car.

By the way, there was a hilarious case from about thirty years ago in which a bank employee stole the getaway car while the bank robbery was in progress. The bank robbers tried to file criminal charges against the employee for grand theft auto, which I guess fits under the heading of chutzpah.

[Eugene Volokh]

Krychek_2: Do you know of any cases in which a car dealership was held liable on the theory that it should have known that it was selling a car to people who are planning to use it criminally? Say, for instance, that buyers are wearing gang colors and otherwise seem to be gang members (maybe the salesman, who lives in the neighborhood, knows that they are gang members). Should the car dealership be liable when the car is used in a drive-by shooting, on the theory that it should have known that the car may well be used for gang purposes? Again, I know of no cases so holding, but maybe I'm missing some.

[Brett Bellmore]

I'm sure they'd get in trouble if they handed the keys to somebody who was visibly intoxicated. So it's not like there's no duty at all.

But let's be realistic here: There has long been a push to compromise the right to keep and bear arms by making it legally perilous to sell firearms, and imposing special duties on anybody dealing in things related to firearms is just part of that attack on the right.

[Krychek_2]

Not without researching it. I do remember reading a case in torts class thirty years ago (I think it was an Idaho case but don't hold me to it) in which a grandparent sold or gave a car to a 16 year old who then caused an accident with serious injury to the plaintiff. The court held that that it was a jury question whether the seller should have known that a 16 year old driver was more likely to drive irresponsibly. Assuming that case is still good law, it strikes me that the same principle would apply here.

If I sell chemicals, and someone wants to buy arsenic, and I have reason to believe he's planning to put it in his mother-in-law's tea, it strikes me that I should be liable under the same theory. But again, I can't quote any cases off the top of my head that say that.

[jimc5499]

My Cousin has a farm. There's a store where he buys things for the farm. A couple weeks ago we stop there and buy several bags of fertilizer and refill the diesel fuel tank for the tractor. Does that store have an obligation to report us, because of the possible alternative use for what we bought?

[Brett Bellmore]

Reminds me of the breathless headlines when they searched James Nichols' farm and found fertilizer residue in, of all places, the barn. We rural folk were so scandalized, they sure had him dead to rights!

[Stephen Lathrop]

Professor Volokh, that hardly seems a good faith analogy. Where in the world of car purchasing do you see specific legal constraints put in place to thwart criminal uses of the cars? If there were such constraints, and the dealership was deliberately acting to convenience circumvention, where would that leave your analogy?

[Brett Bellmore]

Lathrop, you seem to have a difficult time understanding that acting to facilitate legal transactions does not magically become a crime, just because people who will engage in illegal transactions find that convenient, too. There's scarcely any modern convenience that doesn't make life easier for criminals.

[Brett Bellmore]

Yeah, but, what's "reasonable prudence"? It can't be just a backdoor way for the courts to impose legal duties the legislature has declined to impose.

We can't just proceed as though there weren't a considerable movement in this country actively trying to infringe this right, by hook or by crook.

[Krychek_2]

It's standard common law tort theory. Juries are asked all the time to decide whether someone was reasonably prudent. And we also can't immunize gun sellers from negligence that anybody else would get sued for just because someone who doesn't like guns might abuse it.

[Brett Bellmore]

I agree, and if somebody walks into a gun store and asks which model is best for school shootings, or checks the barrel length on the shotgun they're buying to make sure they can reach the trigger when the end of the barrel is in their mouth, you've got an issue.

I'm just saying, you can't impose an EXTRA duty of care on people selling guns. For no other product are the sellers supposed to mind read if a product with legal applications is being bought for a criminal purpose; They need actual evidence of this, and aren't obligated to go out of their way to get it.

[Krychek_2]

All right, but let's use a more likely example. I am not allowed to buy multiple packages of Sudafed out of fear that I might be using it to cook meth. If I approach a chemical supply store wanting to purchase cyanide, or dynamite, they're going to want to know what I'm going to use it for.

And I likewise don't think it's unreasonable, if a 20 year old male show up at a gun store wanting to buy 200 rounds of armor piercing ammunition, to require the store to ask some questions before they sell it to him. Same principle. Sure, there are legitimate uses for armor piercing ammunition, just as there are legitimate uses for dynamite and cyanide. But you don't just stroll into a chemical supplier and waltz out with enough cyanide to wipe out half a neighborhood without satisfying the store that that's not what you're planning to do with it.

If the gun store sells him 200 rounds of armor piercing ammunition without asking some questions, and the following day he shoots up a school, I would make it a jury question whether that was reasonably prudent of them.

[hoppy025]

There’s no constitutional right to buy Sudafed or cyanide. There is one to buy guns. In any case, your reference to 200 rounds of “armor piercing ammunition” shows that you know nothing about what you’re trying to regulate. 200 rounds of 5.56 is not a lot. Target shooters often buy cases of 1,000.

And by making it a "jury question," you're looking to have anti-gun jurors impose liability on someone who did nothing wrong because they hate guns. It wouldn't be hard to get a jury in DC or NYC that would be composed of people who did just that.

[Krychek_2]

You've just given an argument for abolishing juries altogether because there is no region of the country where juries won't be predisposed for or against things. If Trump is acquitted it will be in no small part because the case was tried in South Florida; if the case were being tried in Seattle or Boston he'd be toast. So, do we abolish juries altogether because they bring their regional prejudices to the courthouse with them? It's just as likely that juries in the rural South would bend over backward to let gun sellers off the hook even in cases of extraordinary negligence. It strikes me that your argument is more designed to achieve the political result you want than it is about what really is good public policy.

And what is good policy is to let juries decide what is, and is not, negligent, even if it varies from one part of the country to another. If I own a gun store in Los Angeles, I'm aware that I'll be held to a higher standard than I would in South Dakota. So I need to conduct myself accordingly.

I will admit to not being a gun expert. If my hypothetical store that sold 200 rounds with no questions asked actually were on trial, I would allow testimony that selling 200 rounds with no questions asked is a common practice.

[hoppy025]

For emotionally charged issues, yes, juries should not be determining these. Half of America thinks guns are bad and the law should be damned. They have no business determining anything.

[Krychek_2]

So a jury should not decide the guilt or innocence of an accused child rapist and murderer because it's an emotionally charged issue? Or the negligence of a major corporation whose greed killed someone (or lots of someones), because that, too, is an emotionally charged issue?

Nope, gun seller liability is a tort claim just like any other tort claim, and the same rules apply. Stop treating guns as special.

[hoppy025]

Again, not when there are jury pools that are entirely Democrat Party voting. I'd be fine to allow juries to decide anything if the mentally ill are kept off juries. And since Democrats are by definition mentally ill, Democrats wouldn't be allowed to serve on juries.

[Brett Bellmore]

No, we've given an argument about why sellers properly have no obligation to be sure you're not going to use that legal product with legal uses for naughty purposes, and that goes double for things people have a constitutional right to.

The regulations on things like Sudefed are an aberration, due to the war on drugs' corrosive effects on civil liberties. We need to be rolling that sort of crap back, not extending it.

[Squirrelloid]

"All right, but let’s use a more likely example. I am not allowed to buy multiple packages of Sudafed out of fear that I might be using it to cook meth. If I approach a chemical supply store wanting to purchase cyanide, or dynamite, they’re going to want to know what I’m going to use it for."

The restrictions for sudafed and dynamite are, iirc, specifically imposed by law. A similar situation for cyanide would not surprise me.

So if the law specifically required more, sure. But it doesn't.

And Armslist isn't even a seller. It's a personal ads webpage. Would a newspaper be liable (back in the day when personals actually existed) because a sale advertised by a third party involved a sale of an item that had both legal and illegal usage? That strikes me as exceedingly unlikely.

[Krychek_2]

But what is required by law, and what is negligent by virtue of being imprudent, are two different things. Even in the absence of a legal requirement, I'll bet you that if someone sold me enough cyanide to take out lower Manhattan, and I then took out lower Manhattan, a jury would want to know why the seller wasn't more curious about why I needed the cyanide.

[Brett Bellmore]

"But what is required by law, and what is negligent by virtue of being imprudent, are two different things. "

No. Screw that. You're just trying to make excuses for imposing rules you can't get through the legislature, and which might even be unconstitutional for the legislature to impose. You're trying to leverage supposed negligence to infringe a civil liberty.

[Krychek_2]

It's called "common law" Brett. It's been around for a thousand years. It's how most law developed, in fact.

[Brett Bellmore]

Again, screw that: We have an explicit constitutional right, you can't "common law" your way into infringements that you can't statute your way into.

[MaddogEngineer]

Right, and some of it developed before such a thing as representative democracy came to be. The common law can be abrogated by positive law. Which is one function of the Second Amendment here.

Of course, if we were to step back in the (American) common law timeline 200 years, lawyers and judges would think this such a claim of liability was preposterous. Because back then, they hadn't lost sight of the fundamental right codified in the 2A.

[Krychek_2]

Brett, just because you have a constitutional right to do something does not mean you can't be negligent in your exercise of that right.

MaddogEngineer, common law develops over time as cultural values change. Of course the framers would consider this conversation preposterous, but they probably wouldn't think much of most of today's tort law. And, as I just told Brett, having the right to do something doesn't mean you're off the hook if you exercise that right in a negligent manner. A duty of care does not go away just because you have the right to do something.

[Brett Bellmore]

But it does mean you can't redefine normal behavior into pseudo-negligence.

[MaddogEngineer]

Again, a developing common law can’t infringe upon a pre-existing/fundamental right recognized (not established) by the Bill of Rights. That’s what the framers would find preposterous. Attempting to weaponize a common law tort against it. Especially trying to cast legal/legitimate liberties (speech/commerce) as negligent, as a class, by a publisher.

No one has provided evidence that this site is facilitating the sale/transfer of firearms between people disqualified from ownership. This isn’t “looking the other way” hosting child porn images. But again, anti-gun people want to make it out to be, because they object to all guns and therefore anything that facilitates their commerce is negligent.

[ReaderY]

I find the logic here problematic, and I say this as someone who normally opposes courts interfering in areas legislatures have regulated. The Court says that Wisconsin’s firearms dealer statute doesn’t apply. It only applies to firearms dealers, and the Armslist website isn’t a firearms dealer by the statute’s definition. That seems reasonable enough.

But the court then proceeds to say that the statute, while not applying, nonetheless controls. Since it doesn’t apply, none of the duties in the statute apply to Armslist. It then concludes that Amslist has no duties. That seems an inference too far.

If the statute expressly said that it was the only source of law on all subjects related to firearms and expressly repealed all other common-law and statutory sources about firearms in general, not just firearms dealers as it defines them, the inference would be straightforward. But absent that, if a statute says it doesn’t apply to the situation, courts have to look elsewhere for sources of law regarding it.

It seems to me that the “field” here is the field of organized brokers or facilitators of private arms sales, who are neither private sellers nor dealers. Since the Wisconsin legislature has chosen to regulate only “dealers,” it has necessarily chosen not to regulate this non-dealer field at all. An unregulated field cannot be a highly regulated field.

Since the legislature has chosen to leave the field unregulated by statute and the common law undisturbed, the 7th Circuit should have honored that choice and proceeded to evaluating Wisconsin’s common law. It instead inferred more from the statute than was warranted.

[ReaderY]

The district court took this route and reached Wisconsin’s common law. It proceeded to find that Wisconsin common law does not impose the duties that the plaintiffs claimed it does, and hence Armslist was not negligent under Wisconsin common law.

[Brett Bellmore]

"But absent that, if a statute says it doesn’t apply to the situation, courts have to look elsewhere for sources of law regarding it."

You seem to be assuming the existence of other sources of law to go looking for. Since there was not specific statute putting Armslist under any special duty, the fact that they help facilitate gun purchases doesn't imply any special duties that wouldn't be faced by a site facilitating any other sort of purchase. They're just Craigslist for guns, they'd actually have no business model if it weren't for the fact that Craigslist's organizers don't like guns and refuse to allow anything related to them on the site.

[Bored Lawyer]

Common law always applies in the absence of a statute. It's not a special gun law, but you still are not supposed to knowingly aid and abet crime. Which Armslist is not doing. ReaderY is just saying the Court of Appeals should have discussed the issue.

[ReaderY]

It’s not just me that assumes that common law applies in the absence of statutory law. The Wisconsin State Constitution assumes it. Very explicitly. See Article XIV, Section 13, titled “Common law continued in force.”

The 7th Circuit held that the statute didn’t apply to Armslist LLC’s situation, yet the legislature had intended to preempt common law on that situation. In general if a statute doesn’t apply to a subject, it doesn’t change the previously existing state of the law on that subject. Per the Constitution the common law continues in force. And that means anything the common law has to say remains in effect. The common law often imposes duties. Maybe it did in this situation. Maybe it didn’t. The 7th Circuit should have reached that issue.

[MeanGene]

To what extent is this whole issue a consequence of Plaintiffs' lawyers taking cases on a contingency basis? Low-down, dirt-bag criminals aren't worth suing, so let's use novel legal theories to get to the deep pockets? I was told in law school that it's not ethical for a lawyer to acquire an interest in a suit in which he was counsel. How are contingency fees not acquiring an interest in that suit?

[Brett Bellmore]

Using novel theories to get at the deep pockets is now considered to be a noble thing, if the left doesn't like the deep pockets. Remember how they went after tobacco? Actually arranged for legislatures to outlaw the legal defense that had protected the companies, in return for a cut of the loot?

It wasn't long after that they tried pulling the same thing on the firearms industry, and it took a federal law to stop them. They're just here rationalizing ways to get around that law.

[ReaderY]

Surely we’d have a much fairer society if only people like us who can afford to pay lawyers up-front are able to sue as a practical matter and we don’t have to concern ourselves with the riff-raff!

There’d be no need for this “arbitration” nonsense where we have to pay people off to pretend to hear the riff-raff’s complaints.

After all, our money is our money. And their money is our money as soon as we can figure out how to get our hands on it. And they have no business stopping us from enforcing our right to it!

Plus we’re entitled to all the pussy we can grab. None of this complaining bullshit. We’re the folks who are more equal than others, and we gotta make sure they know it. Gotta keep them in their place. It’s a free country, and fair is fair!

[MeanGene]

Nice defense of the greedy Plaintiff's Bar. Sure, access to the courts can justify crummy, and questionable behavior by plaintiffs' lawyers. Is that what you advocate?

[Toranth]

You are aware that arbitration is quite biased in favor of the corporations, right? It's no coincidence they write contracts to require it.

I agree that contingency lawsuits should be allowed, but it is hardly out of bounds to point out that they are not perfectly ethically clean.

Also, have you ever consider charging Trump rent for the time he's spent living in your head? Comments like this one do a great deal to reveal how damaged you are, when ever slight disagreement sets you off.

[Rev. Arthur L. Kirkland]

If gun absolutists do not participate in arranging sensible gun safety laws, they are destined to watch better Americans do it for them -- and in ways and to degrees gun nuts probably will dislike.

[Currentsitguy]

And they will just be ignored or will use those very guns to make their position plain.

[Rev. Arthur L. Kirkland]

You will continue to comply with the rules established by better Americans, toeing that line just as right-wingers have been doing for more than a half-century.

Getting stomped in the culture war has consequences, as gun nuts, bigots, anti-abortion absolutists, and religious privilege fetishists are destined to learn the hard way.

[Scooter]

Hoplophobe Alert.

[Grifhunter]

Sir, your predictions about what the "betters" are going to do to gun owners is factually bankrupt. Anyone paying attention would see the consistent trend of expanded gun rights nationwide compared to 20 - 50 years ago. The percentage of minorities and women acquiring and carrying guns has grown, the pro-gun rights jurisprudence, and even the acceptance by most liberal politician of Heller's holding that gun ownership is an individual right, foreshadows a pro-self defense/pro gun sensibility long into the future (contrary to your confiscatory fantasies).

As long as the "betters" keep promoting urban depravity, economic/supply chain malpractice, and cultural degeneration the lurch toward arms will proceed as a natural consequence, no matter one's party affiliation.

[Rev. Arthur L. Kirkland]

I hope a right to possess a reasonable weapon for self-defense survives the predictable mainstream backlash against gun nuttery. But if it does not the gun nuts will deserve the blame.

[hoppy025]

I hope the right to insert your HIV infected member where it doesn't belong survives the mainstream backlash against LGBTQ+ nuttery.

[Stephen Lathrop]

Grifhunter, until your second paragraph, the only problem with your comment was that your alleged factual premises do not apply uniformly nationwide. And the regions in which they do not apply experience notably better public safety outcomes than the others.

Your second paragraph disqualifies your commentary more generally.

[Brett Bellmore]

Yeah, things are great in Chicago, aren't they?

[WuzYoungOnceToo]

And the regions in which they do not apply experience notably better public safety outcomes than the others.

Dorothy...wake up!

https://www.jsr.org/index.php/path/article/download/1371/1108/7732

[Brett Bellmore]

Oh, come on. That's silly. Silk Road's business model was, specifically, mediating illegal transactions. Just the added cost of transacting in Bitcoin was enough to ensure that nobody engaged in a lawful transaction would have bothered to use them.

Armslist facilitates almost exclusively legal transactions, and to the extent any illegal transactions are conducted through them, it's without their knowledge. If you had any proof to the contrary, the DOJ would beat down your door for it, I guarantee they'd love to have something that even vaguely resembled a legally defensible pretext for shutting them down.

Literally, you might as well claim that Craigslist specializes in helping burglars fence stolen goods. It would be as reasonable.

[Stephen Lathrop]

Bellmore, it is trivial to demonstrate that publishing activity was indispensable to the alleged crime, and that Armslist provided the publishing activity, and that criminal outcomes from Armslist's activities were reasonably foreseeable.

[Brett Bellmore]

First, what you're claiming is trivial to demonstrate is actually trivial to demonstrate is false. Name a crime that only started happening when Armslist came into being. That's what it would mean that Armslist was "indispensable" to the crime: That you couldn't commit it AT ALL without Armslist. Grab a dictionary, why don't you? Pay close attention to the definitions.

Second, your argument, if accepted as valid, 'proves' too much. Lots of crimes are reasonably foreseeable consequences of legal commerce.

It is legally foreseeable that, if you sell cars, some of them will be used as getaway vehicles.

It's reasonably foreseeable that, if you sell baseball bats, some of them will be used to break kneecaps.

So it can't be legal to operate a bulletin board that connects people who want to buy and sell cars or baseball bats?

Like I said, Craigslist knows, with absolute certainty, that some non-zero fraction of the merchandise sold through them is burglars fencing their stolen goods. Does this make their business model a crime? Not any more than any other business that exists in a world where criminals use the same services as law abiding people.