Yasmeen Daniel, Individually, and as Special Administrator of the Estate of Zina Daniel Haughton, Plaintiff-Appellant,
Armslist, LLC, an Oklahoma Limited Liability Company, Brian Mancini and Jonathan Gibbon, Defendants-Respondents, Travelers Indemnity Company of Connecticut, as Subrogee for Jalisco's LLC, Intervening Plaintiff, 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.
from an order of the circuit court for Milwaukee County No.
2015CV8710 GLENN H. YAMAHIRO, Judge. Reversed.
Lundsten, P.J., Blanchard, and Fitzpatrick, JJ.
This is a tort action arising from a mass casualty shooting
at a salon in Brookfield, Wisconsin. It is alleged that the
shooter, Radcliffe Haughton, bought the firearm and
ammunition he used in the shooting after responding to a
"for sale" post that appeared on a website,
Armslist.com. Yasmeen Daniel, the daughter of shooting victim
Zina Daniel Haughton and the administrator of her
mother's estate, has filed multiple tort claims against
Armslist, LLC, which created and operated
Armslist.com.Significant to Daniel's claims, when
Radcliffe purchased the firearm and ammunition, he was
prohibited by a state court domestic violence injunction from
possessing a firearm.
The circuit court dismissed Daniel's complaint against
Armslist in its entirety, based on the federal Communications
Decency Act of 1996 ("the Act"). See 47
U.S.C. § 230(c)(1) and (e)(3) (October, 1998). As
pertinent here, the Act creates what Armslist argues is
immunity from any "liability" that "may be
imposed under any State or local law" for a
"provider" of "an interactive computer
service" under a theory of liability that
"treat[s]" the provider "as the publisher or
speaker of any information provided by another information
content provider." See id. The court concluded
that Armslist has immunity under this provision of the Act
because Daniel alleges only that Armslist "passively
displays content that [was] created entirely by third
parties" and "simply maintain[ed] neutral policies
prohibiting or eliminating certain content, " and
because Daniel "fails to allege facts which establish
… that Armslist [was] materially engaged in creating
or developing the illegal content on its page."
We reverse the order dismissing the complaint as to the
Armslist defendants. Applying a plain language interpretation
to the Act, we agree with Daniel that the allegations in the
complaint, which are that Armslist used website design
features to facilitate illegal firearms purchases, do not
seek to hold Armslist liable on a theory prohibited by the
Act. Stated in the terms used in the Act, we conclude that
the allegations do not seek to hold Armslist liable under a
theory of liability that "treat[s]" Armslist
"as the publisher or speaker of any information provided
by another information content provider, " which is the
protection at issue here that the Act provides. We reject
Armslist's argument because the Act provides immunity to
website operators, such as Armslist, only when the
allegations treat the website as the publisher or speaker of
third-party content, and the Act does not protect a website
operator from liability that arises from its own conduct in
facilitating user activity, as is the case here.
There is a separate issue, which does not involve immunity
under the Act, namely, the court's dismissal of a claim
of negligence per se. On this issue, we agree with Daniel
that, as Armslist effectively concedes, the circuit court
erred in dismissing this claim.
Accordingly, we reverse dismissal of the complaint as to the
Armslist defendants, including the dismissal of the
negligence per se claim, and remand.
The following are facts that are alleged or which reasonably
can be inferred from the complaint in favor of Daniel. As
discussed below, we must accept the facts and reasonable
inferences as true for purposes of this appeal.
Relating to Firearms Sales In General
Federally licensed firearms dealers are required to access
and consider certain background information regarding
potential buyers in order to prevent sales to individuals
prohibited by law from possessing firearms. See Wis.
S . § 175.35(2) (2015-16); 18 U.S.C. § 922(t)(1).
It is unlawful to sell a tat  firearm to certain persons,
including those who have domestic abuse injunctions entered
against them. See Wis. Stat. § 941.29(4); 18
U.S.C. § 922(d). We will sometimes refer to firearms
sales to persons who are legally prohibited from possessing
them as "prohibited sales, " and to the purchasers
as "prohibited purchasers."
In contrast to federally licensed dealers, unlicensed
"private sellers"-meaning persons not "engaged
in the business of selling firearms"-are not required
under federal law to conduct background checks. We follow the
lead of the parties here, consistent with many authorities,
in using the phrases "private sellers" and
"private sales" to refer to firearms sales by
persons who are not engaged in the business of selling
firearms and not licensed by the federal government as
firearms dealers. Private sales are attractive to potential
buyers who fear that they will fail a background check.
To summarize the basics of the allegations, then, private
sales without background checks are not per se unlawful but
are attractive to prohibited persons, and prohibited persons
violate the law by obtaining firearms from anyone.
The complaint further alleges that statistics show that
firearms sold through private sales are more frequently
transferred to prohibited persons than are firearms
transferred in federally licensed sales. Specifically, the
complaint alleges that published studies prove that private
sellers and prohibited purchasers are attracted to use
Armslist.com by its permitted anonymity and its various
filtering features, which make it easier for buyers to avoid
having to submit to a background check and to minimize the
collection of evidence that could be used to hold them
accountable for later unlawful acts committed with an
In addition, the complaint alleges that private sales
facilitated by online communications have been linked to
illegal firearms trafficking, to firearms sales to minors,
and to mass casualty shootings. As a result, the complaint
alleges, major classified advertising websites, such as eBay,
Craigslist, and Amazon.com, prohibit posts seeking to buy or
Relating To The Armslist.com Website
After several major websites prohibited users from using
posts to facilitate firearms transactions, Armslist saw a
commercial opening in this area and created Armslist.com.
Through the website, potential buyers and sellers contacted
one another, either by clicking on a link within the website
or by using the contact information provided by the other
party through the website.
The complaint alleges that design and operational features of
Armslist.com, which we now summarize, affirmatively
"encouraged" transactions in which prohibited
purchasers acquired firearms:
• Made private sales easy; ability to limit
searches. Sellers could indicate on the website whether
they were "premium vendors" (i.e.,
federally licensed firearms dealers) or instead "private
sellers." Potential buyers were allowed to identify
preferences for private sellers and to limit their search
results to private sellers.
• No flagging of "criminal" or
"illegal" content. Users were allowed to
"flag" ads to invite "review and
policing" by Armslist, and Armslist used these
"flags" to delete certain posts and to prohibit
certain users from posting on Armslist.com. However, the
website expressly prevented users from flagging content as
purportedly criminal or illegal.
• Warning against illegality, but no specific legal
guidance. Armslist.com contained a warning that users
must obey the law and asked users to certify that they would
not use the website for "any illegal purpose."
However, it provided no guidance on specific laws governing
firearm sales or the care that should be used in conducting
• No registration requirement; flagging of
registered accounts. Users were not required to
"register" an account with Armslist.com,
"thereby encouraging anonymity." Armslist
prominently displayed a statement on each post indicating
whether the poster had a "registered" or
• No buyer restrictions; no waiting period for
private sales. "Armslist does not contain any
restrictions for prospective buyers, and its website is
designed to enable buyers to evade state waiting period and
other legal requirements." This "waiting
period" reference is based on a Wisconsin law, in place
at the time of the Linn-Radcliffe transaction, that required
federally licensed firearms dealers to wait 48 hours after
receiving a "proceed" response from the background
check system before transferring the firearm, while private
sales were not subject to this requirement.
In contrast, the complaint alleges, a different website for
firearms transactions requires its users to register before
buying a firearm and to take delivery only through a licensed
dealer, which greatly minimizes the chances of firearms
transfers to prohibited persons.
The complaint includes the allegation that "the average
number of want ads specifically asking to buy from a private
seller on Armslist[.com] is 240% higher in states that do not
require background checks on those sales as compared to
states that require [background] checks on private,
stranger-to-stranger sales." In particular Wisconsin,
which did not require a background check for a private sale,