April 26, 2018 – In 2012, Radcliffe Haughton opened fire in a Milwaukee suburban spa, killing his wife, Zina, and two other victims before killing himself. Zina’s daughter, Yasmeen Daniel, later sued the website Haughton used to purchase the firearm.

A circuit court dismissed the case, concluding the website, Armslist.com, had immunity under the federal Communications Decency Act of 1996 (Act), which protects websites from liability for published information provided by another information content provider.

Haughton had responded to a “for sale” post that appeared on the firearms website, advertising the sale of ammunition and firearms, which he bought and used.

But in Estate of Zina Haughton v. Armslist LLC, 2017AP344 (April 19, 2018), a three-judge panel for the District I Court of Appeals reversed the circuit court, concluding that the allegations against Armslist.com “do not seek to hold Armslist liable on a theory prohibited by the Act,” meaning the lawsuit can proceed against Armslist.com.

“We reject Armslist’s argument because the Act provides immunity to website operators, such as Armslist, only when the allegations treat the website as the publisher or speaker of third-party content,” wrote Judge Brian Blanchard for the three-judge panel.

“[T]he Act does not protect a website operator from liability that arises from its own conduct in facilitating user activity, as is the case here,” Judge Blanchard noted.

Prohibited Purchaser, Private Sale

Before the shooting, Zina obtained a restraining order against Haughton for domestic abuse. The injunction prohibited Haughton from possessing a firearm for four years.

Under state and federal law, it is unlawful to sell firearms to certain persons, including persons with domestic abuse injunctions against them.

Federally licensed firearms dealers must conduct background checks to determine if someone is a “prohibited purchaser.” Haughton was a prohibited purchaser, and it would have been illegal for him to purchase a gun from a federally licensed dealer.

But as the panel noted, private sellers who are not engaged in the business of selling firearms are not required to conduct background checks. “Private sales are attractive to potential buyers who fear they will fail a background check,” Judge Blanchard noted.

Major advertising websites, such as eBay, Craigslist and Amazon, prohibit posts that seek to buy or sell firearms, the panel explained. This opened the market for other websites, such as Armsist.com, to facilitate private firearm transactions online.

The complaint alleged that Armslist.com was not a passive host to these private transactions, but that Armslist.com actually facilitated and encourage transactions between private sellers and “prohibited purchasers,” through operational features.

For instance, potential buyers could filter to “private” sellers rather than “premium venders” that were federally licensed dealers required to conduct background checks.

Also, the website did not require users to “register,” meaning such transactions could be conducted with complete anonymity on both ends of the transaction. And the Armslist website did not require a 48-hour waiting period that applies to sales through federally licensed dealers. Transactions could be processed with no waiting period at all.

The complaint also alleged that want ads for firearms from private sellers were 240% higher in states that do not require background checks on private sales, including Wisconsin, which had the fifth highest number of want ads among those states.

Through Armslist.com, Haughton found a private seller, Devin Linn, offering for sale a semiautomatic handgun and three-high capacity magazines. They met in the parking lot of a fast-food restaurant, and Haughton bought the gun and ammo for cash. The next day, Haughton used the firearm at the Brookfield spa to kill Zina and two other victims.

Claims Can Proceed

Zina’s daughter filed tort claims under state law, including a negligence per se claim, which the circuit court dismissed under state law and the Communications Decency Act. But the appeals court reversed, concluding that Armslist is not protected by the Act.

“Because this case presents an issue of first impression in Wisconsin and there is no guidance from the United States Supreme Court, our focus is on the language of the Act as it applies to Daniel’s specific allegations,” Judge Blanchard noted.

The panel said the pertinent language in the Act only protects Armslist to the extent it is the “publisher or speaker” of Linn’s and Haughton’s posts on the website.

But the panel agreed with Daniel (for the estate) that Armslist was not a “publisher or speaker” – the design and operation of the website actually encouraged transactions with “prohibited purchasers” like Haughton, a substantial factor in causing the shootings.

“The theory of liability, then, is that Armslist designed and operated Armslist.com so as to be a cause of the injuries alleged in the complaint,” Judge Blanchard wrote.

The panel noted that no other provider created the functionality that allowed users to anonymously evade laws prohibiting certain persons from purchasing firearms.

“Rather, it is content created by Armslist, and there is no language in the Act immunizing Armslist from liability based on content that it creates,” Blanchard wrote.

Citing decisions in other jurisdictions as persuasive, the panel noted that the Communications Decency Act is not an “all-purpose get-out-of-jail-free card for businesses that publish user content on the internet,” noting one case in which a website facilitated child prostitution through posted guidelines and content rules.

“We note that our interpretation of the Act does not deprive it of value to defendants in tort cases, but instead provides concrete, if narrow, immunity,” Judge Blanchard wrote.

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