913 N.W.2d 211 (Wis.App. 2018), 2017AP344, Daniel v. Armslist, LLC

• Judge: Before Lundsten, P.J., Blanchard, and Fitzpatrick, JJ.
• Court: Wisconsin Court of Appeals
• Date: 19 April 2018
• Docket Number: Appeal 2017AP344
• Parties: Yasmeen DANIEL, individually, and as Special Administrator of the Estate of Zina Daniel Haughton, Plaintiff-Appellant, v. ARMSLIST, LLC, an Oklahoma Limited Liability Company, Brian Mancini and Jonathan Gibbon, Defendants-Respondents,[†] Travelers Indemnity Company of Connecticut, as Subrogee for Jalisco’s LLC, Intervening Plaintiff, Broc ...
• Citation: 2018 WI App 32,913 N.W.2d 211

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913 N.W.2d 211 (Wis.App. 2018)

2018 WI App 32

Yasmeen DANIEL, individually, and as Special Administrator of the Estate of Zina Daniel Haughton, Plaintiff-Appellant,

Travelers Indemnity Company of Connecticut, as Subrogee for Jalisco’s LLC, Intervening Plaintiff,

v.

ARMSLIST, LLC, an Oklahoma Limited Liability Company, Brian Mancini and Jonathan Gibbon, Defendants-Respondents,^[†]

Broc Elmore, ABC Insurance Co., the fictitious name for an unknown insurance company, DEF Insurance Co., the fictitious name for an unknown insurance company and Estate of Radcliffe Haughton, by his Special Administrator Jennifer Valenti, Defendants, Progressive Universal Insurance Company, Intervening Defendant.

Appeal No. 2017AP344

Court of Appeals of Wisconsin, District I

April 19, 2018

Submitted on Briefs November 13, 2017.

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[Copyrighted Material Omitted]

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APPEAL from an order of the circuit court for Milwaukee County, Cir. Ct. No. 2015CV8710: GLENN H. YAMAHIRO, Judge. Reversed and cause remanded.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Patrick O. Dunphy and Brett A. Eckstein of Cannon & Dunphy, S.C., Brookfield, and Jonathan E. Lowy and Alla Lefkowitz of Brady Center To Prevent Gun Violence Legal Action Project, Washington, DC, and Jacqueline C. Wolff, Arunabha Bhoumik, and Samantha J. Katze of Manatt, Phelps & Phillips, LLP, New York, NY.

On behalf of the defendants-respondents, the cause was submitted on the brief of Eric J. Van Schyndle and Joshua D. Maggard of Quarles & Brady LLP, Milwaukee, and Michael D. McClintock, Christopher M. Scaperlanda, and Zachary A.P. Oubre of McAfee & Taft, Oklahoma City, OK.

A nonparty brief was filed by Crystal N. Abbey of Menn Law Firm, Ltd., Appleton, and Michael J. Dell and Karen S. Kennedy of Kramer Levin Naftalis & Frankel LLP, New York, NY, for Everytown for Gun Safety.

A nonparty brief was filed by Brian T. Fahl of Kravit, Hovel & Krawczyk, S.C., Milwaukee, and Anthony J. Dreyer, Elizabeth A. Hellmann and Naomi S. Solomon of Skadden, Arps, Slate, Meagher & Slate, LLP, New York, NY, for National Coalition Against Domestic Violence, National Domestic Violence Hotline, Futures Without Violence, Jewish Women International, Casa de Esperanza: National Latin@ Network, National Resource Center on Domestic Violence, and National Network to End Domestic Violence.

A nonparty brief was filed by Keith R. Stachowiak of Murphy & Prachthauser, S.C., Milwaukee, and Ian B. Crosby of Susman Godfrey L.L.P., Seattle, WA, for Yaser Doleh, PH.D.

Before Lundsten, P.J., Blanchard, and Fitzpatrick, JJ.

OPINION

BLANCHARD, J.

[¶ 1] This is a tort action arising from a mass casualty shooting at a salon in Brookfield, Wisconsin. It is alleged that the shooter, Radcliffe Haughton, bought the firearm and ammunition he used in the shooting after responding to a "for sale" post that appeared on a website, Armslist.com. Yasmeen Daniel, the daughter of shooting victim Zina Daniel Haughton and the administrator of her mother’s estate, has filed multiple tort claims against Armslist, LLC, which created and operated

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Armslist.com.¹ Significant to Daniel’s claims, when Radcliffe purchased the firearm and ammunition, he was prohibited by a state court domestic violence injunction from possessing a firearm.²

[¶ 2] The circuit court dismissed Daniel’s complaint against Armslist in its entirety, based on the federal Communications Decency Act of 1996 ("the Act"). See 47 U.S.C. § 230(c)(1) and (e)(3) (October, 1998). As pertinent here, the Act creates what Armslist argues is immunity from any "liability" that "may be imposed under any State or local law" for a "provider" of "an interactive computer service" under a theory of liability that "treat[s]" the provider "as the publisher or speaker of any information provided by another information content provider." See id . The court concluded that Armslist has immunity under this provision of the Act because Daniel alleges only that Armslist "passively displays content that [was] created entirely by third parties" and "simply maintain[ed] neutral policies prohibiting or eliminating certain content," and because Daniel "fails to allege facts which establish ... that Armslist [was] materially engaged in creating or developing the illegal content on its page."

[¶ 3] We reverse the order dismissing the complaint as to the Armslist defendants. Applying a plain language interpretation to the Act, we agree with Daniel that the allegations in the complaint, which are that Armslist used website design features to facilitate illegal firearms purchases, do not seek to hold Armslist liable on a theory prohibited by the Act. Stated in the terms used in the Act, we conclude that the allegations do not seek to hold Armslist liable under a theory of liability that "treat[s]" Armslist "as the publisher or speaker of any information provided by another information content provider," which is the protection at issue here that the Act provides. 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, and the Act does not protect a website operator from liability that arises from its own conduct in facilitating user activity, as is the case here.

[ ¶ 4] There is a separate issue, which does not involve immunity under the Act, namely, the court’s dismissal of a claim of negligence per se. On this issue, we agree with Daniel that, as Armslist effectively concedes, the circuit court erred in dismissing this claim.

[ ¶ 5] Accordingly, we reverse dismissal of the complaint as to the Armslist defendants, including the dismissal of the negligence per se claim, and remand.

BACKGROUND

[ ¶ 6] The following are facts that are alleged or which reasonably can be inferred from the complaint in favor of Daniel. As discussed below, we must accept the facts

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and reasonable inferences as true for purposes of this appeal.

Allegations Relating To Firearms Sales In General

[¶ 7] Federally licensed firearms dealers are required to access and consider certain background information regarding potential buyers in order to prevent sales to individuals prohibited by law from possessing firearms. See WIS. STAT. § 175.35(2) (2015-16); 18 U.S.C. § 922(t)(1).³ It is unlawful to sell a firearm to certain persons, including those who have domestic abuse injunctions entered against them. See WIS. STAT. § 941.29(4); 18 U.S.C. § 922(d). We will sometimes refer to firearms sales to persons who are legally prohibited from possessing them as "prohibited sales," and to the purchasers as "prohibited purchasers."

[ ¶ 8] In contrast to federally licensed dealers, unlicensed "private sellers"— meaning persons not "engaged in the business of selling firearms"— are not required under federal law to conduct background checks. We follow the lead of the parties here, consistent with many authorities, in using the phrases "private sellers" and "private sales" to refer to firearms sales by persons who are not engaged in the business of selling firearms and not licensed by the federal government as firearms dealers. Private sales are attractive to potential buyers who fear that they will fail a background check.

[ ¶ 9] To summarize the basics of the allegations, then, private sales without background checks are not per se unlawful but are attractive to prohibited persons, and prohibited persons violate the law by obtaining firearms from anyone.

[ ¶ 10] The complaint further alleges that statistics show that firearms sold through private sales are more frequently transferred to prohibited persons than are firearms transferred in federally licensed sales. Specifically, the complaint alleges that published studies prove that private sellers and prohibited purchasers are attracted to use Armslist.com by its permitted anonymity and its various filtering features, which make it easier for buyers to avoid having to submit to a background check and to minimize the collection of evidence that could be used to hold them accountable for later unlawful acts committed with an identified firearm.

[ ¶ 11] In addition, the complaint alleges that private sales facilitated by online communications have been linked to illegal firearms trafficking, to firearms sales to minors, and to mass casualty shootings. As a result, the complaint alleges, major classified advertising websites, such as eBay, Craigslist, and Amazon.com, prohibit posts seeking to buy or sell firearms.

Allegations Relating To The Armslist.com Website

[ ¶ 12] After several major websites prohibited users from using posts to facilitate firearms transactions, Armslist saw a commercial opening in this area and created Armslist.com. Through the website, potential buyers and sellers contacted one another, either by clicking on a link within the website or by using the contact information provided by the other party through the website.

[ ¶ 13] The complaint alleges that design and operational features of Armslist.com, which we now summarize, affirmatively "encouraged" transactions in which prohibited purchasers acquired firearms:

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• Made private sales easy; ability to limit searches. Sellers could indicate on the website whether they were "premium vendors" (i.e., federally licensed firearms dealers) or instead "private sellers." Potential buyers were allowed to identify preferences for private sellers and to limit their search results to private sellers.

• No flagging of "criminal" or "illegal" content. Users were allowed to "flag" ads to invite "review and policing" by Armslist, and Armslist used these "flags" to delete certain posts and to prohibit certain users from posting on Armslist.com. However, the website expressly prevented users from flagging content as purportedly criminal or illegal....