Judge Dismisses Shooting Victim's Suit Against Craigslist Over Gun Ad

[link to www.law.com]

A shooting victim's attempt to blame Craigslist for posting the ads of a gun dealer who sold the weapon that injured him has been rejected by a federal judge.

Calvin Gibson claimed Craigslist breached a duty of care to ensure that "inherently hazardous objects, such as handguns" do not come into the hands of people like Jesus Ortiz, who shot Gibson several times on June 14, 2008.

But Southern District Judge Richard M. Berman dismissed the complaint, finding that Craigslist is entitled to immunity as an Internet service provider under the Communications Decency Act of 1996, 47 U.S.C. §230.

The judge's opinion came in Gibson v. Craigslist Inc., 08 Civ. 7735, a case in which Gibson sought $10 million in compensatory damages, punitive damages and the "appointment of a federal monitor" to keep guns from being advertised on the Web site.

Gibson's amended complaint claimed Craigslist "is either unable or unwilling to allocate the necessary resources to monitor, police, maintain and properly supervise the goods and services" sold on its site.

Craigslist moved for dismissal under §230, which states that no "provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider," and that no "cause of action may be brought and liability imposed under any State law that is inconsistent with this section."

Craigslist's motion to dismiss said Gibson "improperly" was seeking to treat Craigslist "as the publisher or speaker of the alleged advertisement."

Berman said that courts around the country have repeatedly construed the grant of immunity in the Communications Decency Act broadly.

And he found that Craigslist met the three-pronged test for immunity under the act.

First, he said, the complaint alleged that Craigslist was an "Internet merchant."

Second, he said, Gibson "acknowledges that an 'unknown individual,' not the defendant, placed the advertisement under a coded category on the Craigslist website."

Finally, he said Gibson was seeking to hold Craigslist liable for its failure to prevent the dissemination of third-party content.

"It is clear that plaintiff's claims are directed toward Craigslist as a 'publisher' of third party content," -- something that is specifically prohibited by §230, the judge said.

Gibson also asked Berman to sanction the defendants for making the motion to dismiss because §230 is an affirmative defense and "an affirmative defense is generally not fodder" for a motion to dismiss under Rule 12(b)(6). He also asked for sanctions because §230 "does not provide blanket immunity to interactive computer services."

But Berman denied the motion. He said a defendant "may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion where, as here, the defense appears on the face of the complaint."

And even if Gibson's claims were not barred by §230, he said, the "defendant's motion cannot be called frivolous."

Paul B. Dalnocky represented Gibson.

"We weren't seeing Craigslist as a publisher -- we were seeing it as a regular business that should have monitored its business better. I mean, how can you run a business with millions of ads and have only 25 employees monitoring it?" Dalnocky said. "My goal was to get to discovery and see what kind of monitoring efforts they make. We'll never know because we didn't get to discovery."