Brady Campaign Lawsuit Against — Preempted by Federal Law?

The Brady Campaign has filed a lawsuit against (Complaint here). The theory:

On April 13, 2011, Jitka Vesel, a 36-year-old immigrant from the Czech Republic was shot and killed by Demetry Smirnov, a Russian immigrant residing in Canada who had met Jitka online a few years earlier. Smirnov stalked her to her workplace parking lot where he shot her 11-12 times with a .40-caliber handgun….

The complaint alleges that [Smirnov] illegally purchased from a private seller whom he located through, an online gun auction site owned by defendant Armslist, LLC. The complaint alleges that the website’s design facilitates illegal gun sales to unlawful gun buyers with no background checks and no questions asked, and encourages and enables users to evade laws that allow private sellers to sell firearms only to residents of their own state by enticing prospective buyers to search for and find gun sellers throughout all 50 states….

Now a bit of legal background on federal gun law: Generally speaking, nonprofessional sellers — i.e., those who aren’t in the business of selling guns (and thus aren’t required to become “federal firearms licensees,” or FFLs) — may sell guns to buyers from their own state, without doing a background check. That rule, which is that a background check isn’t required for nonprofessional sellers, was a compromise implemented at the time the federal background check law was enacted; it’s controversial (and is indeed the source of the misnamed “gun show loophole”), but it’s the law. Some states require that such nonprofessional seller transactions go through FFLs, who have to perform the background checks; but to my knowledge most states don’t impose such a requirement.

Under federal law, nonprofessional sellers can’t sell directly to nonprofessional buyers in other states, but they can sell through FFLs in those states. So if someone in Indiana has a gun that I like, he can sell it through a California FFL, and I can buy it through that FFL. (Naturally, the local FFL will probably charge a fee, which varies with the FFL, but it need not be so high as to stymie the transaction.)

People who are barred from buying a gun (for instance, because they are felons, or foreigners, with some exceptions) are also barred from buying a gun from a nonprofessional seller. The nonprofessional sellers are also barred from selling guns to these prohibited buyers, if the sellers “know[] or hav[e] reasonable to cause to believe” that the buyers aren’t allowed to buy the guns. But there’s nothing inherently illegal under federal law about a nonprofessional seller-buyer transaction, again whether or not you think such transactions should be illegal.

The lawsuit, of course, is a civil claim, not a criminal prosecution; it asserts that, under Illinois law,’s operation is negligent, because its facilitation of private seller gun transactions creates an unreasonable risk of harm. The main thrust of the argument seems to be that “Armslist breached [the] duty [of reasonable care] by designing its website to encourage its users to circumvent existing gun laws, which prohibit private sellers from selling firearms to residents of another state or country, by easily enabling prospective purchasers to search for and find gun sellers in any and all states.”

Now the lawsuit probably isn’t preempted by the Protection of Lawful Commerce in Arms Act, since that applies only to lawsuits against gun manufacturers, gun sellers, and trade associations; ArmsList isn’t covered. But I do think that it’s preempted by 47 U.S.C. § 230, which generally bars lawsuits against Internet service or content providers based on speech posted by other parties. Section 230 applies to advertisements as much as to other speech.

Now the Ninth Circuit has held, in Fair Housing Council v. (9th Cir. 2008) that Internet service and content providers may be held liable — despite section 230 — when they “do[] not merely provide a framework that could be utilized for proper or improper purposes,” but rather specifically design features that focus on facilitating tortious transactions:

Defendant, LLC (“Roommate”) operates a website designed to match people renting out spare rooms with people looking for a place to live…. Before subscribers can search listings or post housing opportunities on Roommate’s website, they must create profiles, a process that requires them to answer a series of questions. In addition to requesting basic information — such as name, location and email address — Roommate requires each subscriber to disclose his sex, sexual orientation and whether he would bring children to a household. Each subscriber must also describe his preferences in roommates with respect to the same three criteria: sex, sexual orientation and whether they will bring children to the household. [The court assumed for purposes of decision that discrimination based on these criteria violates federal and state fair housing laws. -EV]

Roommate both elicits the allegedly illegal content and makes aggressive use of it in conducting its business. Roommate does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate’s work in developing the discriminatory questions, discriminatory answers and discriminatory search mechanism is directly related to the alleged illegality of the site. Unlike Carafano, where the website operator had nothing to do with the user’s decision to enter a celebrity’s name and personal information in an otherwise licit dating service, here, Roommate is directly involved with developing and enforcing a system that subjects subscribers to allegedly discriminatory housing practices.

Here, on the other hand, the interstate search feature can indeed “be utilized for proper or improper purposes.” As I mentioned, buying from another state is quite legal, so long as you are either an FFL yourself or are willing to go through an FFL. That, I think, means that the exception to § 230 immunity doesn’t apply, and Armslist, like Craigslist providing its “adult services” category or doing the same, can’t be sued based on the conduct of their advertisers.

The lawsuit might not be valid even under state law; it might well be that allowing advertisements that on their face may appear perfectly legal wouldn’t be seen as negligence (compare Eimann v. Soldier of Fortune Magazine (5th Cir. 1989) with Braun v. Soldier of Fortune Magazine (11th Cir. 1992)), and beyond that the decision to allow multistate searches is likely not the but-for cause of the murder: Even had the site only allowed searches for the state in which the searcher said he was, the murderer would likely have just searched for Washington sellers. (The claim in the lawsuit that the site should have “require[d] the input of … verifiable identification by buyers or sellers, such as a driver’s license number, to demonstrate residency in a particular state” seems to me unsound, since I doubt that the site had any commercially feasible way of actually verifying that identification. Likewise the claim that the site should have “inform[ed] users that it is unlawful to sell guns directly to out-of-state residents or require users to affirm that they will not sell guns directly to out-of-state residents” would likely not have affected the outcome of this transaction, especially given that — though the gun seller claimed not to know such sales were illegal — the murderer “offered [the seller] an ‘extra $200’ ‘because he [the buyer] was from Canada.'”) And there might also be a First Amendment barrier to the lawsuit, since it essentially seeks to impose liability for advertising of lawful transactions (and for searches for such advertisements) as well as for advertising and searches aimed at engaging in unlawful transactions.

But I don’t think the court will need to get into all this, because the § 230 immunity precludes liability regardless of how state tort law is interpreted. Thanks to commenter Sertorius for passing along the Complaint.

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