Brady Campaign loses lawsuit against Armslist (a gun classified ad site)

The decision is Vesely v. Armslist, LLC (7th Cir. Aug. 12, 2014). Here’s the Brady Campaign’s 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….

I argued when the lawsuit was filed that it was preempted by 47 U.S.C. § 230, which generally bars lawsuits against Web sites for material posted by their users. I still think that’s so, but the court didn’t reach that theory, because it concluded that the lawsuit was unfounded under Illinois tort law. Here’s the main part of the analysis (some paragraph breaks added and deleted):

To prevail on a claim of negligence under Illinois law, a plaintiff must “prove the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” …

While breach and proximate cause are factual matters for the jury, the existence of a duty is a matter for the court to decide. And the touchstone to determine the existence of a duty is “to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.”

It has long been established that under common law, “the universally accepted rule … is that a private person has no duty to act affirmatively to protect another from criminal attack by a third person absent a ‘special relationship’ between the parties.” Illinois recognizes four special relationships: (1) common-carrier passenger; (2) innkeeper and guest; (3) custodian and ward; and (4) business invitor and invitee. Alex [plaintiff and Jitka Vesel's brother -EV] did not, nor could he, allege that a special relationship existed between the parties; the fact is that no relationship between Armslist and Jitka, special or otherwise, ever existed….

Alex suggests that public policy favors a judicial finding of a duty because Armslist’s allegedly negligent behavior facilitates gun sales that in turn lead to gun crimes. Indeed, the district court engaged in this exact analysis, using the four factors commonly used in determining the existence of a duty ((1) reasonable foreseeability of the injury; (2) likelihood of the injury; (3) magnitude of the burden of guarding against the injury; and (4) consequences of placing that burden on the defendant). But these factors need not be addressed in criminal attacks in the absence of a “special relationship” between the parties [citing Illinois caselaw -EV]. In other words, when a criminal act by a third party is the cause of the injury, a special relationship is required before any further analysis. And since no special relationship exists between the parties — nor has one been alleged in the complaint — dismissal was appropriate.

Alex makes a last ditch attempt to label this case as an “affirmative conduct” case, wherein a duty can be found to exist without a “special relationship.” He argues that an exception to the special relationship rule exists “where the defendant’s acts or omissions create a condition conducive to a foreseeable intervening criminal act.”

One certainly has a duty to refrain from “affirmative conduct” that creates a risk of harm to others; a breach of this duty implicates in-concert liability. And “[i]f a plaintiff can demonstrate that the defendant did not merely fail to act, but also assisted the third party, then the requirement of a special relationship no longer applies.” Liability will be found for persons who act in concert with another tortfeasor, “giving substantial assistance or encouragement to another’s tortious conduct.”

Alex has alleged nothing of the sort here. Alex’s complaint states that Armslist “design[ed] its website to encourage its users to circumvent existing gun laws, … by easily enabling prospective purchasers to search for and find gun sellers in any and all states.” But simply enabling consumers to use a legal service is far removed from encouraging them to commit an illegal act. See [an Illinois Supreme Court precedent] (citing Restatement (Second) of Torts § 302B, Comment d, at 89 (1965) (“it is generally reasonable for one to assume that a person will not violate the criminal law.”)).

Armslist permitted Ladera [the seller of the gun] to place an advertisement on its website and nothing more. It did not invite Ladera or Smirnov to break the law. Alex’s allegations fall short of alleging any cognizable negligence claim for which Armslist could be held responsible for Smirnov’s acts….

I’m not sure about this analysis as a matter of modern American tort law, but it may well be consistent with Illinois law, and in any event I think this would be the right result under 47 U.S.C. § 230.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · August 12