Gun Broker Website Cleared in Wisconsin Shooting

In this Oct. 21, 2012, file photo, tactical team members move towards a spa where several people were fatally shot Brookfield, Wis. The Wisconsin Supreme Court dismissed a lawsuit alleging a firearms website that enabled a man to illegally purchase the pistol he used in the shooting is liable for the killings. (Michael Sears/Milwaukee Journal-Sentinel via AP, File)

MADISON, Wis. (CN) – The Wisconsin Supreme Court on Tuesday cleared a website that brokers gun sales of liability for a mass shooting, finding that facilitating firearm sales between third parties is not the same as selling guns.

The underlying case is connected to a 2012 shooting at the Azana Spa and Salon in Brookfield, a town roughly 10 miles west of Milwaukee. The shooter, Radcliffe Haughton, entered the salon and opened fire, killing two bystanders, himself and his estranged wife, Zina Daniel Haughton.

An investigation of that shooting found that Haughton bought the gun he used on Armslist, a gun sales brokerage website that facilitates firearm sales between third-party buyers and sellers.

Before the shooting, Haughton’s wife had sought and received a restraining order against him after he assaulted her and threatened her life.

Haughton, therefore, was prohibited from owning a gun by both state and federal law because of his prior domestic violence conviction.

Armslist, which falls under the realm of private sellers, is not required to run background checks on potential buyers like federally licensed firearm dealers.

Yasmeen Daniel, Zina Daniel Haughton’s daughter, filed multiple tort claims against Armslist, but Milwaukee County Circuit Judge Glenn Yamahiro dismissed her case, finding that “interactive computer services” like Armslist are protected by the Communications Decency Act, or CDA.

The Wisconsin Court of Appeals reversed that dismissal, finding that the CDA’s plain language made Armslist’s gun sales unlawful.

But in the state high court’s 32-page majority decision Tuesday, Chief Justice Patience Roggensack wrote that as an interactive computer service provider, Armslist is protected from liability “because all of Daniel’s claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties” on its website.

The 5-1 decision reinstates the circuit court’s dismissal of Daniel’s claims.

The CDA’s provisions are at the heart of the high court’s decision. Roggensack said that in enacting the CDA, “Congress sought to prevent state and federal laws from interfering with the free exchange of information over the internet” and in particular on sites like Armslist, which she defined as “a classified advertising website similar to Craigslist.”

The court’s decision notes that Armslist allows users to flag content for being overpriced or an outright scam, but it does not allow users to flag content as criminal or illegal and does not take action to delete illegal content.

But Roggensack cited recent CDA-related orders that have protected social media sites like Facebook and apartment-rental sites from being held responsible for illegal content published by third parties using their “neutral tools,” stating that “if a website’s design features can be used for lawful purposes, the CDA immunizes the website operator from liability when third parties use them for unlawful purposes.”

Roggensack pointed out that there is no good faith requirement for sites like Armslist, so “the issue is not whether Armslist knew, or should have known, that its site would be used by third parties for illegal purposes,” but rather “whether Armlist was an information content provider,” with respect to the ad that Haughton responded to, which it was not.

The decision also dismisses Daniel’s argument that it is Armslist’s intention to profit off of making illegal gun sales easier, opining that other courts have already recognized that allegations of intent have no effect on CDA immunity.

Justice Ann Walsh Bradley was the sole dissenting judge.

“The majority views Daniel’s complaint as merely ‘artful pleading,’ disguising her true claims against Armslist. By using the phrase ‘artful pleading,’ the majority implicitly acknowledges that the language of the complaint states a claim. In essence, it posits, ‘I know what it says, but that’s not what it really means,’” she wrote.

Bradley stressed that Zina Daniel Haughton was granted the restraining order she wanted against Haughton, but “within two days Radcliffe had a gun in his hands” even though he was prohibited from owning one.

“Radcliffe quickly and easily, without undergoing the inconvenience of a federal background check, procured a gun using a website designed by Armslist,” Bradley wrote in her dissent.

“Nevertheless,” she continued “the majority allows Armslist to hide behind the CDA.”

Bradley found the argument that Armslist can claim CDA immunity as a neutral service provider to be flawed, writing that Daniel’s allegations assert liability based on the design of Armslist’s website, not based on content provided by a third party.

She concluded that “the majority errs in its interpretation of the CDA by basing its decision not on the actual claims pled…but on its own manufactured interpretation of those claims. As a result, it fails to recognize that here the design itself is the creation of the content.”

Justice Shirley Abrahamson withdrew from February’s oral arguments and did not participate in Tuesday’s opinion.

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