Gun sales website Armslist argues immunity in Azana Spa mass shooting
Wisconsin court decision may have national impact
Gun control and internet commerce advocates nationwide likely were watching arguments at the Wisconsin Supreme Court on Thursday to see if a web-based gun marketer can be held liable for facilitating an unlawful weapon sale.
Armslist LLC is where a man obtained the gun used to kill three people and himself at a Brookfield spa in 2012.
In April, the state’s Court of Appeals became the first court in the nation to hold that a web-based gun marketplace might be held liable for negligence in facilitating an unlawful weapons sale when it reinstated a lawsuit against Armslist, which then sought Supreme Court review.
“If the Supreme Court overturns the lower court decision to find that Armslist is immune from suit, domestic abusers will continue to have easy — and deadly — access to firearms,” said Patti Seger, executive director of End Domestic Abuse Wisconsin.
But proponents of an open internet say letting states find ways to hold web platforms responsible for bad acts by the people who use them will have a chilling effect on innovation.
Zina Daniel Haughton and two coworkers were killed when her estranged husband, Radcliffe Haughton, shot up the Azana Spa where she worked. Four others were injured, and Radcliffe Haughton fatally shot himself.
Yasmeen Daniel, personally and as administrator of her mother’s estate, sued Armslist.com, on which Radcliffe Haughton found someone to sell him a gun and ammunition while he was prohibited by a domestic violence injunction from having firearms.
A lawyer with the Brady Center to Prevent Gun Violence, which is part of the plaintiff’s legal team, will argue for Daniel.
A trial judge dismissed the case, citing the Communications Decency Act grant of immunity to “interactive computer services” that provide for communication among other parties.
But in a unanimous opinion, the Court of Appeals in April reversed that decision. It found Armslist might be liable, based on creating its own content that made it easy for prohibited people to buy guns, not for just being a conduit or publisher of others’ content.
Armslist argues risk of chilling effect
Lawyers for Armslist say the plaintiff ’s theory could have farreaching implications for all kinds of
web-based businesses and social networks that, arguably, create environments where bad actors can plot crimes.
“If any website built to enable effective communication no longer enjoys CDA immunity, what website is safe?” reads the Armslist brief.
But it’s not just Daniel and the gun site trying to persuade the court.
The case has attracted friend-of-the-court briefs from the Computer and Communications Industry Association, the National Coalition Against Domestic Violence, Everytown for Gun Safety, the Cyber Civil Rights Initiative, the American and Wisconsin medical societies, The Copia Institute, the Electronic Frontier Foundation and members of Congress
The groups support both sides of the debate: that holding Armslist liable for the sale that led to the Azana mass shooting would chill open internet innovation, or that what Armslist does is substantively different from what sites like Facebook or Craigslist do, and that by creating its own content, it exposes itself to liability.
Those in support of Armslist argue Congress has pre-empted states from interfering with how the Communications Decency Act applies to internet platforms. Others encourage the high court to uphold the Court of Appeals.
The suit says Armslist should be liable for the way it designed and operates its website in a way that simplified, if not encouraged, prohibited gun sales. That is Armslist’s own content, the Court of Appeals found, not just information provided by a seller.
“This case may look like a domestic violence case, a gun policy case, or even a negligence case, but it is actually a speech case,” according to the Copia Institute.
“Laws that protect speech, such as the one at issue in this appeal, are on the books for good reason. They are ignored at our peril because doing so imperils all the important expression they are designed to protect.”
Armslist called ‘threat to public safety’
But Everytown for Gun Safety’s brief calls Armslist “an unacceptable threat to public safety” that should face consequences under state negligence law.
During oral arguments Thursday, Armslist’s attorney, James Goldschmidt, said the design and functions of the website were “neutral tools” and not considered content by the CDA. He noted that private gun sales are legal in Wisconsin.
He distinguished cases where websites have been stripped of CDA immunity for material contributing to unlawful activity by, for instance, requiring information that was per se unlawful or creating completely fraudulent advertising.
For Daniel, attorney Jonathan Lowy argued the Armslist site functions and features are not neutral tools, but more a statement to criminals that “this is a safe place” for unlawful gun sales.
Justice Rebecca Bradley sounded concerns that if the court allowed Daniel’s negligence case to proceed, Facebook, Twitter and every other platform would be sued over actions by their users.
Lowy disagreed, and argued that the CDA would rightly prevent such claims and that Wisconsin courts, considering the unique facts of Daniels’ case, should decide if the case should proceed.
The court’s decision is not expected for months.