Daniel v. Armslist, LLC

Decision Date30 April 2019
Docket NumberNo. 2017AP344,2017AP344
Citation386 Wis.2d 449,926 N.W.2d 710,2019 WI 47
Parties 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-Petitioners, 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.
CourtWisconsin Supreme Court

For the defendants-respondents-petitioners, there were briefs filed by Eric J. Van Schyndle, Joshua D. Maggard, James E. Goldschmidt, and Quarles & Brady LLP, Milwaukee. There was an oral argument by James E. Goldschmidt.

For the plaintiff-appellant, there was a brief filed by Patrick O. Dunphy, Brett A. Eckstein, and Cannon & Dunphy, s.c., Brookfield. With whom on the brief were Jacqueline C. Wolfe, Samantha J. Katze, and Manatt, Phelps & Phillips, LLP, New York, New York; along with Jonathan E. Lowy and Brady Center To Prevent Gun Violence, Washington, D.C. There was an oral argument by Jonathan E. Lowy.

An amicus curiae brief was filed on behalf of National Coalition Against Domestic Violence, End Domestic Abuse Wisconsin: The Wisconsin Coalition Against Domestic Violence, Legal Momentum, Et al. by Brian T. Fahl and Kravit, Hovel & Krawczyk, S.C., Milwaukee. With whom on the brief were Anthony J. Dreyer and Skadded, Arps, Slate, Meagher & Flom LLP, New York, New York.

An amicus curiae brief was filed on behalf of Everytown for Gun Safety by Crystal N. Abbey and Menn Law Firm, LTD., Appleton. With whom on the brief were Michael J. Dell, Karen S. Kennedy, and Kramer Levin Naftalis & Frankel LLP, New York, New York.

An amicus curiae brief was filed on behalf of Floor64, Inc., D/B/A The Copia Institute by Kathryn A. Keppel, Steven C. McGaver, and Gimbel, Reilly, Guerin, & Brown LLP, Milwaukee. With whom on the brief was Catherine R. Gellis, Esq., Sausalito, California.

An amicus curiae brief was filed on behalf of Cyber Civil Right Initiative and Legal Scholars by Jeffrey A. Mandell, Gregory M. Jacobs, and Stafford Rosenbaum LLP, Madison.

An amicus curiae brief was filed on behalf of American Medical Association and Wisconsin Medical Society by Guy DuBeau and Axley Brynelson, LLP, Madison. With whom on the brief were Leonard A. Nelson, Erin G. Sutton, and American Medical Association, Chicago, Illinois.

An amicus curiae brief was filed on behalf of Computer and Communications Industry Association by Andrew T. Dufresne and Perkins Coie LLP, Madison. With whom on the brief were Brian M. Willen, Jason B. Mollick, and Wilson Sonsini Goodirch & Rosati Professional Corporation, New York, New York.

An amicus curiae brief was filed on behalf of Members of the United States Congress on the Meaning of the Communications Decency Act by Emily Lonergan, John C. Peterson, and Peterson, Berk, & Cross, S.C., Appleton. With whom on the brief were Gregory M. Dicknson and Harter Secrest & Emery LLP, Rochester, New York.

An amicus curiae brief was filed on behalf of Electronic Frontier Foundation by Peyton B. Engel, Marcus J. Berghahn, and Hurley Burish, S.C., Madison.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 We review a decision of the court of appeals1 reversing the circuit court's2 dismissal of Yasmeen Daniel's complaint against Brian Mancini, Jonathan Gibbon, and Armslist, LLC (collectively "Armslist"). Daniel's tort action arose from a mass shooting in a Brookfield, Wisconsin spa that killed four people, including Daniel's mother Zina Daniel Haughton. Daniel alleged that the shooter, Radcliffe Haughton, illegally purchased the firearm after responding to private seller Devin Linn's post on Armslist's firearm advertising website, armslist.com. The court of appeals held that 47 U.S.C. § 230 (2018),3 the federal Communications Decency Act of 1996 (CDA), did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase.

¶2 We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider,4 as the publisher or speaker of information posted by a third party on its website. 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 armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint.

I. Background5

¶3 In October 2012, a Wisconsin court granted Zina Daniel Haughton a restraining order against her husband, Radcliffe Haughton, after he had assaulted her and threatened to kill her. Pursuant to the restraining order, Radcliffe was prohibited by law from possessing a firearm for four years. See Wis. Stat. § 941.29(1m)(f) (2017-18).6 Despite this court order, Radcliffe posted a "want to buy" advertisement on armslist.com and stated that he was seeking to buy a handgun with a high-capacity magazine "asap." He then viewed an offer of sale posted by Devin Linn on armslist.com for a semiautomatic handgun. Using armslist.com's "contact" function, he emailed Linn to arrange to purchase the handgun. The two exchanged phone numbers and set up a meeting by phone. On October 20, they met in a McDonald's parking lot in Germantown, Wisconsin. Linn sold Radcliffe the gun, along with ammunition, for $ 500.

¶4 On October 21, one day after Radcliffe had purchased the handgun from Linn, he carried it into the Azana Spa and Salon in Brookfield, Wisconsin, where Zina worked. He fatally shot Zina and two other people, injured four others, and shot and killed himself. Yasmeen Daniel was inside the building at the time and witnessed the shooting.

¶5 Armslist.com is a classified advertising website similar to Craigslist. Prospective sellers may post advertisements for firearms and firearm-related products they wish to sell, prospective buyers may post "want advertisements" describing the firearms they wish to buy. Buyers and sellers may contact one another either through personal contact information they provide on the website, or by using armslist.com's "contact" tool. According to the complaint, Armslist receives revenue through advertising on armslist.com; there is no allegation that Armslist itself participates in the purchase and sale of firearms beyond allowing users to post and view advertisements and contact information on armslist.com.

¶6 According to Daniel's allegations, Radcliffe shopped for the murder weapon exclusively on armslist.com because he recognized that the website's design features made it easier for prohibited purchasers like him to illegally purchase firearms. Armslist.com allows potential buyers to use a "seller" search filter to specify that they want to buy firearms only from private sellers, rather than from federally licensed dealers. Private sellers, as opposed to federally licensed gun dealers, are not required to conduct background checks in Wisconsin. The website also does not require buyers or sellers to create accounts, which encourages anonymity, and displays next to each advertisement whether the account is registered or unregistered.

¶7 Armslist.com allows users to flag content for a number of different reasons, including "scam," "miscategorized," and "overpriced," and uses these flags to delete certain posts. However, it does not allow users to flag content as "criminal" or "illegal" and does not take action to delete illegal content. The website contains no restrictions on who may create an account, or who may view or publish firearm advertisements using its website. The website's lack of restrictions allows buyers to avoid state-mandated waiting periods and other requirements. Armslist does not provide private sellers with legal guidance as to federal and state laws governing the sale of firearms.

¶8 Daniel's complaint also suggests several simple measures Armslist could have taken in order to reduce the known risk of illegal firearm sales to dangerous prohibited purchasers. Daniel alleges that Armslist could have required buyers to create accounts and provide information such as their name, address, and phone number. In states similar to Wisconsin, where there is online access to an individual's criminal history, Armslist could have required potential buyers to upload their criminal history before their accounts were approved. She alleges Armslist could have allowed users to flag potentially illegal firearm sales. It could have prohibited users from obtaining one another's contact information until Armslist confirmed their legal eligibility to buy and sell firearms. According to the complaint, all these measures would have reduced the risk of firearm sales to persons prohibited from owning a firearm.

¶9 Based on all these features and omissions, Daniel's complaint alleges that Armslist knew or should have known that its website would put firearms in the hands of dangerous, prohibited purchasers, and that Armslist specifically designed its website to facilitate illegal transactions. The causes of action asserted against Armslist are negligence, negligence per se, negligent infliction of emotional distress, civil conspiracy, aiding and abetting tortious conduct, public nuisance, and wrongful death.7 Armslist argued that the CDA immunizes it from liability for the information posted by third parties on armslist.com, and moved to dismiss Daniel's complaint for failure to state a claim upon which relief can be granted pursuant to Wis. Stat. § 802.06(2)(a)6.

¶10 The circuit court granted Armslist's...

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