This month, a federal district court in Wisconsin dismissed a lawsuit against Armslist, the operator of an online marketplace for firearms, arising out of its role in allegedly facilitating or enabling the sale of a handgun that was later used by a prohibited person in a crime.

The plaintiff, Richard Webber, on behalf of the estate of Sara Schmidt and supported by the gun control group Brady, sued Armslist and its co-founder, Jonathan Gibbon. Schmidt had been shot and killed in 2018 by her estranged husband who was, at the time, prohibited under federal and Wisconsin law from possessing a firearm. He had allegedly bought the gun from a private individual through an advertisement the seller posted on the Armslist.com website.

Essentially, the lawsuit rested on claims that the defendants had been reckless or negligent in the design and operation of the Armslist.com website by incorporating features like “private party” or “private seller” tags on advertisements, which assisted users in finding private sales that did not necessarily involve licensed dealers or require background checks under state and federal firearm laws. According to the plaintiff, these design features and business practices “encouraged, assisted and facilitated unlawful conduct” and illegal gun sales.

Buying and selling firearms is a legal activity. The plaintiff conceded that, beyond providing the online platform, neither defendant participated in the transaction in which Schmidt’s estranged husband acquired the gun, and that Wisconsin law did not require background checks for “private seller” sales, meaning that an ad identified as such was not unlawful under state law. As pointed out in the defendants’ court filings, the plaintiff also “refrained from suing in this action … the man who allegedly sold [the] husband the gun used to kill” Schmidt.

In 2019, another Brady-backed case involving almost identical claims against Armslist was dismissed by Wisconsin’s highest state court after it determined that a federal law, the Communications Decency Act (CDA), 47 U.S.C. § 230, precluded liability. The CDA prohibits the “provider or user of an interactive computer service” from being “treated as the publisher or speaker of any information provided by another information content provider.” Regardless of foreseeability or intent, this immunized a provider from liability for passively displaying or hosting content created by third parties, even if the provider’s design features made illegal content more easily available. Armslist, the court concluded, did not “develop” the content, as its design features were “editorial choices that fall within the purview of traditional publisher functions.”

The defendants here moved to dismiss the case, relying on the CDA and arguing, further, that the claim failed under state tort law because their actions did not cause the plaintiff’s loss.

The U.S. district court (noting it was not bound by the 2019 decision) disagreed with the broad interpretation of CDA immunity, ruling that the claims in this case were “not the kinds of claims to which § 230 by its plain language applies.” Even assuming that the law did apply, the case was not premised on Armslist as the “publisher or speaker” of the third-party content that led to Schmidt’s husband obtaining the gun, but on the defendants’ own conduct in creating a service that allegedly facilitated the illegal sale of firearms.

Despite its rejection of the CDA-based immunity, the court nonetheless granted the defendants’ motion and dismissed the lawsuit. Under Wisconsin negligence law, the facts alleged by the plaintiff failed to establish that the defendants’ conduct was a substantial factor in the death of Sara Schmidt:

… there is no reason to believe that even if Schmidt’s estranged husband had not purchased a gun from a person who posted an advertisement on the Armslist website, Schmidt would still be alive. Armslist is hardly the only source of guns in this country, and one does not even need a gun to take another person’s life. Schmidt was killed by a person so determined to take her life, so consumed by hatred, that he was even willing to take his own. The likelihood that such a person would have found another source from which to obtain a firearm or another way to take Schmidt’s life is more plausible than Plaintiff’s claim that she would still be alive.

Independent of the causation problem, civil liability was precluded on public policy grounds. The injury suffered by the plaintiff was “too remote from and out of proportion to” the defendants’ conduct, and allowing recovery would place an unreasonable burden on the defendants. “[L]awfully 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,” and his “conscious, pre-meditated decisions and actions … served as a superseding cause” of the loss. Holding the defendants liable for this loss was “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.”

In that regard, the defendants had raised the fact that the lawsuit was “yet another filed by the Brady Campaign … intended to harass Defendants out of business.” Besides the Wisconsin cases, for example, the Brady Campaign had been involved in a 2012 case against Armslist, a failed attempt to hold it liable for a third party’s criminal acts in Illinois. Readers may also remember Brady’s disastrous litigation against ammunition distributor Lucky Gunner and other retailers, brought by the parents of a woman killed by James Holmes. Lucky Gunner alone spent more than $150,000 to defend itself against claims of civil liability. In dismissing that lawsuit, the judge ordered the plaintiffs to pay the defendants over $200,000 in costs and attorneys’ fees, commenting that the “case was filed to pursue the political purposes of the Brady Center,” being more an “opportunity to propagandize the public and stigmatize the defendants than to obtain a court order which counsel should have known would be outside the authority of this court.” After the lawsuit backfired, the plaintiff parents were left to deal with the financial aftermath and filed for bankruptcy, with the defendants’ award of costs remaining unpaid.

This latest litigation boils down to yet another attempt to ignore or rewrite the law, circumvent settled legal principles, and stretch the limits of liability. The “universally accepted rule” in common law tort doctrine is that a private individual has no duty to act affirmatively to protect another from criminal attack by a third person absent some kind of special relationship; further, it is generally reasonable to assume that a person will not violate the criminal law. Statutes like the federal Protection of Lawful Commerce in Arms Act (and state counterparts) were enacted specifically to end predatory lawsuits against the firearm industry that sought to impose liability for the unrelated actions of third party criminals.

For anti-gun groups like Brady, though, even a loss is a win. Besides inflicting onerous litigation expenses on defendants in the hope that they will be bankrupted out of existence, these failed cases offer an opportunity to exploit tragic criminal events to “propagandize the public” against firearms and lawful gun owners, and “stigmatize” legitimate businesses rather than the criminals responsible for the illegal behavior. 

The decision in Webber v. Armslist, LLC and Gibbon, No. 20-C-1526 (E.D. Wis. Nov. 9, 2021) is available here.