Plaintiff argues website was encouraging illegal gun trafficking
By Eric T. Berkman
BridgeTower Media Newswires
PROVIDENCE, RI -- A police officer shot by a convicted felon could not bring a negligence action against the online firearms marketplace that originally sold the gun in question, a state trial court judge in Massachusetts has ruled.
The shooter, who was prohibited from possessing a firearm, allegedly purchased the gun in a street sale from someone who had acquired it through a website that facilitates gun sales between private parties.
Officer Kurt Stokinger and his wife, the plaintiffs, argued that the site’s owner, defendant Armslist LLC, should be held accountable for building and hosting a platform with features that facilitate and encourage illegal gun trafficking while taking no measures to prevent it.
But Superior Court Judge Heidi E. Brieger disagreed, finding that §230 of the federal Communications Decency Act, which provides broad immunity to web-based service providers for claims arising from their publication of information from third parties, shielded Armslist from liability.
In so ruling, Brieger rejected the plaintiffs’ contention that §230 was inapplicable because their claims were based on Armslist’s design and maintenance of the site and not on anything it published on behalf of third parties.
“While the Stokingers are correct that an interactive computer service provider remains liable for its own conduct and its own speech, … the Stokingers’ claim that Armslist created the content at issue here was reviewed and rejected in a similar case,” Brieger wrote, referring to Daniel v. Armslist, LLC, a 2019 decision by the Wisconsin Supreme Court, which the U.S. Supreme Court subsequently declined to review.
“Here, the Stokingers’ claims concern both the same design features and the same arguments raised in Daniel,” Brieger continued, granting Armslist’s motion to dismiss.
The 14-page decision is Stokinger, et al. v. Armslist, LLC, et al.
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‘Issue for Congress’
Mark C. Rouvalis of Manchester, New Hampshire, one of Armslist’s attorneys, said the case was correctly decided based on Daniel and Doe v. Backpage.com, a 2016 decision in which the 1st U.S. Circuit Court of Appeals held that, under §230, the overall design and operation of a website fell within the site’s “publishing” function.
Accordingly, the 1st Circuit found, young sex trafficking victims could not hold an online classified ad service liable for design and operation features related to its “Escorts” section that allegedly facilitated such exploitation.
“After that decision, Congress went out and passed an exemption from [Communications Decency Act immunity] for sex trafficking, but it didn’t extend that exception to any other business,” Rouvalis said. “The court appropriately noted in this opinion that if there’s a remedy here that the plaintiffs want, the remedy lies in going to Congress to change the law.”
Neil S. Tassel, an attorney from Wakefield, Massachusetts, who also represented the defendant, said Armslist was created because legal gun owners needed a forum to lawfully sell and trade firearms after other internet services, like Facebook and Craigslist, blocked the exchange of information to facilitate gun sales from their platforms.
“We see each of these lawsuits — and an identical one was just filed in another state — as an effort to squelch the flow of information between law-abiding gun owners,” Tassel said. “There’s a legitimate tort underlying this case, but it doesn’t involve Armslist, and that’s something the plaintiffs are free to litigate and should litigate if warranted.”
Jonathan E. Lowy, chief counsel for Brady: United Against Gun Violence in Washington, D.C., and one of the plaintiffs’ attorneys in Stokinger, took issue with the judge’s conclusion.
“We do not believe that Congress intended to create an anything-goes no-man’s land on the internet in which bad actors have sweeping immunity for the harm their irresponsible conduct causes,” Lowy said, adding that his clients intend to appeal.
David Pucino, a staff attorney with the Gifford Law Center, a gun control advocacy organization in San Francisco, said Armslist exacerbates an existing hole in the federal law around gun transfers by consolidating a large number of sellers in one place, making it much easier for prohibited buyers to find someone who will sell them a gun. Federal law requires that a purchaser go through a background check only before buying a gun from a licensed firearms dealer but not from another private party.
“Providing Armslist with this kind of blanket immunity removes any incentive to provide any kind of protection or regulation to make sure people buying guns on their platform are legally allowed to own them,” Pucino said.
On the other hand, Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law in California, said he was surprised the plaintiffs chose to pull Armslist into the lawsuit in the first place, since §230 jurisprudence is so clearly established.
“Anyone tackling an immunized defendant needs a really smart game plan as to how to get around it,” Goldman said. “If they don’t, they’re wasting their time.”
Jeffrey J. Pyle of Boston, who represented the defendant in Backpage.com, said it is particularly important that §230 protections continue, even in difficult cases like Stokinger.
“In a pandemic, perhaps more than at any other time, we’re relying on web platforms to provide us with the connections we need to conduct business and, frankly, to continue human activities of all kinds,” Pyle said. “The threat of liability for content posted by third parties probably wouldn’t threaten giant companies like Facebook and Twitter, but it would threaten smaller companies that seek to compete with them or replace them.”
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Unlawful owner
On Jan. 8, 2016, Grant Headley shot Stokinger, a Boston police officer, in the leg with a .40-caliber Glock semiautomatic handgun.
As a convicted felon, Headley was a prohibited purchaser of firearms under Massachusetts law.
According to information from the post-shooting investigation, a New Hampshire man sold the gun to Sarah Johnson, a New Hampshire woman who allegedly contacted him through Armslist.com.
Johnson, who was linked to several dozen firearms procured on Armslist before ending up on Boston-area streets and who later pleaded guilty to federal weapons charges, allegedly sold the Glock to Headley.
The Stokingers subsequently sued Armslist in Superior Court alleging negligent site design and operation. Specifically, they claimed Armslist made it easy for prohibited buyers to evade background check requirements by allowing them to filter out licensed dealers in favor of private sellers and by letting them narrow their searches to weed out states with stricter gun laws.
They also claimed Armslist was negligent in permitting users to maintain their anonymity, while taking no action to monitor or prevent illegal sales by limiting the number of guns each user could buy or sell, or by requiring background checks for all transactions brokered by the site.
Armslist moved to dismiss, citing §230 of the CDA.
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Broad immunity
Brieger rejected the plaintiffs’ contention that §230 immunity did not apply because their claims treated Armslist not as the publisher or speaker of third-party content but as the developer, designer and operator of a site that facilitates illegal gun trafficking.
In doing so, the judge pointed out that the plaintiffs in Backpage.com made the same argument, but the 1st Circuit found that the site features that allegedly facilitated illegal sex trafficking were “part and parcel of the overall design and operation of the website” and thus they were editorial choices falling “within the purview of traditional publisher functions.”
“Here the Stokingers’ challenges to Armslist.com are the same as or similar to those raised in Backpage.com, LLC,” Brieger said. “As was the case in Backpage.com, LLC, the challenges relate to the design and structure of the website, which are editorial decisions, so the Stokingers’ claims are precluded under the CDA.”
Meanwhile, she said, the plaintiffs’ claims that Armslist could have done more to discourage or delete the offending content or changed its policies to reduce harmful content posted on its site “is merely another way of stating that Armslist is liable for publishing the third-party content.”
Accordingly, Brieger concluded, the plaintiffs’ claims must be dismissed.
