Brady Campaign Lawsuit Against Armslist.com — Preempted by Federal Law?

The Volokh Conspiracy ^ | 13 December, 2012 | Eugene Volokh

[marktwain]

The Brady Campaign has filed a lawsuit against ArmsList.com (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 armslist.com, 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, ArmsList.com’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. Roommates.com (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 Roommate.com, 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 Roommates.com exception to § 230 immunity doesn’t apply, and Armslist, like Craigslist providing its “adult services” category or , can’t be sued based on the conduct of their advertisers.

[marktwain]

Private sales were not banned in the original Brady act because it was an infringement too far. Those who wanted to pile on infringements of the Second amendment did not think they could get it passed, as it would effectively have meant national gun registration over time.

It is a safety measure to prevent national registration, which, over time, is equivalent to confiscation.

[StaffiT]

It is a safety measure to prevent national registration, which, over time, is equivalent to confiscation.

Registration is the same as Confiscation – the only difference is where the guns are stored.

Registration means you need to obtain the government’s permission to own a gun – permission that can be withdrawn at any time.

You can well imagine how they can make Registration and odious process whereby checks of various “watchlists” could be used to deprive you of your ability to get their permission to own a gun and confiscate it on the spot.

As for the gun grabbing ghouls looking to deprive you of your right to buy and sell private property without government interference – well, as you said, that all part of their incremental plan to get to the anti-self-defense zealot’s nirvana of registration.

[Pecos]

Under this so-called “logic”, every car lot in the country, Craig’s List, and the For Sale ads in every newspaper are responsible for the sale of cars to people who have killed others in auto accidents. Except that Government Motors would lose sales and the UAW would complain to the White House. That’s not in the Leftist narrative. Evil objects called firearms which, on their own, seek out hapless victims - now THAT’S in the Leftist narrative. Because that contributes to control of the population.

[Sir Napsalot]

Let us extend the lawsuit to include GM (gubmint motor).

By the same token, Vehicular Homicides should be blamed on the automaker(s), they shouldn't provide the means and sell them to the public, no?

[Sir Napsalot]

Ooops, should have said ‘dealers’, more apt equivalent analogy.

[cizinec]

I’ll be happy to let the government register as long as I can buy any small arm currently or previously used by any military.

It would be a lot harder (probably impossible) to confiscate from a populace armed with 240Bs, M203s, AT-4s and, of course, Ma Deuces.

IMNSHO, the 2nd Ammendment wasn’t about registration, it was about infantry level small arms. If we had the latter, the former would be irrelevant. Since the NRA for years pimped “hunting” and “personal protection” as the purpose for the 2nd Ammendment, we lost the ability to defend the Republic.

[Dead Corpse]

Brady needs to be disbanded under RICO.

[marktwain]

Since the NRA for years pimped “hunting” and “personal protection” as the purpose for the 2nd Ammendment, we lost the ability to defend the Republic.

There were times when the NRA did that, though they tended to be corrected by their members. Mostly the "hunting" stawman has been pushed by the MSM.

[marktwain]

“I’ll be happy to let the government register as long as I can buy any small arm currently or previously used by any military.

It would be a lot harder (probably impossible) to confiscate from a populace armed with 240Bs, M203s, AT-4s and, of course, Ma Deuces.”

So what do you do when they saw: Those who have PTSD have to store their M2s at the local armory. Then two years later, after a nutjob stole a 240B, and shot up a mall with it: Got to store those in an armory two.. and bit by bit, because they know who has them, they slowly whittle away at those that are allowed to have them.

That is how confiscation works with registration, the number of people allowed to register is slowly reduced until that number becomes politicaly insignificant.

Gun Registration is Gun Confiscation:

http://www.freerepublic.com/focus/f-news/2608785/posts

[cizinec]

Not in my happy pretend world where the REAL 2nd Ammendment rules and everyone is the National Guard.

The law is “to keep and bear,” which means rules on storage offsite = violation of the 2nd Ammendment. I have the right to KEEP them.

Look, if we were all responsible for the health and welfare of our local communities this wouldn’t even be an issue. That *was* the model, and that was for most of American history. The reason you see all this insanity is *because* the majority has agreed to hand over all our responsibilities and, with it, our rights to third parties. People get frustrated and, with no legal recourse they can afford, they turn to violence. It’s horribly wrong, but that’s what you get when a people lose their sense of both responsibility and freedom.