In 2005, President George W. Bush gave the gun industry a huge gift by signing the Protection of Lawful Commerce in Arms Act (PLCAA), which shields gun companies from liability if the guns they sell are used in crimes. The move effectively prevented victims of gun violence or accidents from filing the kinds of lawsuits that have been successful against the tobacco industry and other companies that knowingly sell dangerous products. Still, PLCAA doesn't shield gun sellers who deliberately break the law, allowing groups like the Brady Campaign to Prevent Gun Violence a chance to hold at least a small number of gun sellers responsible, even as the majority of those who profit off gun violence escape consequences.
Last week a new front opened up in this legal terrain: A Wisconsin appeals court ruled that a lawsuit filed by the Brady Campaign against the site Armslist, on behalf of a murder victim's daughter, could go forward. If the Brady Campaign prevails in this case, it could become significantly more difficult for people who can't pass background checks to use the internet to circumvent the law and acquire guns.
The lawsuit stems from a 2012 mass killing by Radcliffe Haughton, who walked into a spa in a Milwaukee suburb and and murdered his estranged wife, Zina Haughton, along with two other women, before shooting himself. He also injured four other women, one of whom was pregnant at the time.
Just weeks before that, Radcliffe Haughton had been caught slashing his wife's tires. After he was arrested for that offense, he was subjected to a restraining order and forced to turn over his weapons.
As Kris Brown, the co-president of the Brady Campaign, explained to Salon, Haughton then went on Armslist and found "a private seller that offered a semiautomatic handgun and three high capacity magazines." He arranged "to buy the firearm and ammunition in an all-cash transaction in a fast food restaurant parking lot," Brown said. The next day, Haughton went on his murderous rampage.
The reason it was so easy for Haughton to find a seller willing to participate in such a shady transaction, Brown said, is because Armslist "has basically designed and operated the website in a manner that allows people to circumvent the law."
The site has a search function that allows a potential buyer to search for private dealers only, knowing that such dealers, at least in some states, are not required to run background checks. Armslist also has no registration requirements, making it easy for people eager to skirt the law to set up a transaction without creating any record of the sale. In addition, while the site allows users to flag posts for removal for all sorts of reasons, it does not permit users to report posts that appear to encourage illegal conduct.
"As Armslist is and has been well aware, private firearm sales arranged over the internet are attractive to, and frequently utilized by, illegal gun traffickers, domestic abusers, criminals, and other dangerous people," the Brady Campaign's brief in the case argues.
Armslist and their lawyer did not respond to Salon's requests for comment.
A 2017 study by researchers at Northeastern University and Harvard University found that nearly one in five gun sales are made to people who didn't go through a background check. The Brady Campaign cited evidence that Armslist searches for private sellers were 240 percent higher in states that don't require background checks on such sales, making clear that people specifically use that search function to evade background checks.
Armslist argued in court that it's protected by the Communications Decency Act, which protects website owners from liability for content posted by third parties. It's the law that protects Facebook, for instance, from being sued for defamation if a user posts deliberate falsehoods about someone else on their feed. But Brady Campaign lawyers argued that Armslist offers more than a platform.
“If you are performing a function as an internet search provider that basically tools it in a way designed to skirt the law, that’s different," Brown said. “The manner in which Armslist provides its service makes it a unique conduit for individuals who would not otherwise be eligible to purchase guns to do so.”
The Wisconsin court agreed, ruling that Armslist is not immune from liability and the suit could go forward. Regardless of the outcome of this specific case, this decision is a breakthrough that opens up the door for more litigation against websites set up to enable people who are legally barred from buying guns to acquire them anyway. If the plaintiffs win in Wisconsin, that could scare Armslist and other online weapons marketplaces away from policies that seem constructed to attract people who are seeking weapons they shouldn't be allowed to buy.
Ultimately, gun control advocates believe federal law must be drastically rewritten to shut down the robust market for guns sold without background checks. For one thing, there could be a universal background check law at the national level, so that all gun sales, whether private or through licensed dealers, are covered by the process. A broader solution is for Congress to reverse PLCAA and allow more lawsuits to go forward against gun manufacturers and sellers. After all, if these weapons are as safe to offer to consumers as the gun industry claims, then they shouldn't need shielding from liability laws.
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