No Liability for Gun-Sale Website Armslist, but Should There Be?
Armslist is a website that provides a place for private gun owners to sell guns to each other. It has several disclaimers excepting it from liability because it "does not certify, investigate, or in any way guarantee the legal capacity of any party to transact."
Demetry Smirnov met Jitka Vesel online (though not on Armslist). Vesel rejected Smirnov, and in response, Smirnov illegally purchased a gun through Armslist (illegal because, under federal law, a gun can't be transferred directly to someone from a different state; the seller was from Washington and Smirnov lived in Chicago).
Smirnov followed Jitka to a parking lot and killed her with the handgun he bought through Armslist. The Seventh Circuit ruled Tuesday that Armslist has no liability.
No Duty Here
The Seventh Circuit's opinion was brief: It upheld the grant of a Rule 12(b)(6) motion because Armslist owed no duty to Jitka; nor was there a special relationship, which would be required as the result of an intervening criminal act by a third party.
The court implied that people could use Armslist to break the law, but all Armslist did was "permitted Ladera [the seller] to place an advertisement on its website and nothing more. It did not invite Ladera or Smirnov to break the law." This conclusion was supported by a citation to the Restatement of Torts: "[I]t is generally reasonable for one to assume that a person will not violate the criminal law."
But is it really that reasonable when a website facilitates the sale of guns, no questions asked? As long as Armslist refuses to have anything to do with the transaction -- other than providing the forum in the first place -- it can claim through a kind of "nudge, wink" plausible deniability that it's just a neutral marketplace, even though it knows with some amount of certainty that some percentage of transactions are going to be illegal.
Not Even Vicarious Liability?
That someone would illegally buy a gun through an online forum and then use it to commit a crime is entirely foreseeable. This head-in-the-sand approach to disclaiming liability is rejected in other situations; for example, a violation of the Foreign Corrupt Practices Act can be proven through "willful blindness." But most often, online forums are exempted from liability for the torts of their users. On its "legal defense fund" site, Armslist acknowledges that the Ninth Circuit case Fair Housing Council v. Roommate.com might expose it to liability, but distinguishes its website from Roommate.com, which asked for some identifying information that could be used to unlawfully discriminate in housing.
In terms of public policy, such exemptions end with a poor result (at least, one would think that death is a poor result). As long as forum operators don't get involved in policing their forums, ever, they can disclaim liability even if they have reason to believe illegal activities are going on.
The online service Prodigy once complained that the volume of messages posted on its forums meant that "if it were forced to choose between taking responsibility for all messages and deleting no messages at all, it would have to choose the latter course." In terms of allowing strangers to buy and sell guns to anyone at all, no questions asked, over the Internet, perhaps the latter course would be a good idea.
- Armslist Lawsuit Seeks to Punish Online Gun Seller, Narrow Loophoole in Law (The Daily Beast)
- Statistics on Gun Trafficking & Private Sales (Law Center to Prevent Gun Violence)
- Purchaser of Stolen Firearm Entitled to 'Innocent Possession' Instruction (FindLaw's U.S. Fifth Circuit Blog)
- Chicago Law Banning Gun Sales and Gifts Held Unconstitutional (FindLaw's U.S. Seventh Circuit Blog)
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