Gun Control

12.13.12

Armslist Lawsuit Seeks to Punish Online Gun Seller, Narrow Loophoole in Law

A lawsuit against Armslist accusing the Internet firearms marketplace of negligence in allowing a man to purchase a gun he later used in a murder is designed to help plug a legal loophole that allows criminals to buy guns from private sellers without a background check.

On April 13th, 2011, Jitka Vesel was walking to her car when she saw a man she knew running toward her, shooting at her with a handgun.

Vesel threw coffee at her attacker and began to run away, but he pursued her and shot her in the back and in the back of the head, killing her and leaving her corpse so disfigured that local police would not allow Vesel’s family to see her body. Vesel was killed by Demetry Smirnov, a man she had met on the Internet and who had stalked her for years after she allegedly ended their brief romantic relationship.

Smirnov bought the .40-caliber handgun he used to kill Vesel via Armslist, an online firearms marketplace that has tens of thousands of guns listed, with no fees, no auctions—and no enforced background checks for buyers.

On Wednesday, Vesel’s family and the Brady Campaign to Prevent Gun Violence, a prominent gun-control advocacy group, filed a lawsuit (PDF) against Armslist for negligence in allowing Smirnov to purchase his weapon. The suit claims Smirnov bought the gun illegally: private sellers are restricted to selling guns in-state only; Smirnov was an immigrant from Russia living in Canada when he bought the gun.

The Brady Campaign, represented by Jonathan Lowy, director of the campaign’s Legal Action Project, says this is the first lawsuit against an online gun site for causing a shooting.

Gun control advocates say potentially taking down Armslist is a crucial piece of the complex task of narrowing what they say is a massive loophole that allows criminals to buy guns from private sellers without being background-checked.

While all licensed dealers are required to subject their sellers to a background check, the same rule does not apply to unlicensed, private dealers, many of whom use sites like Armslist, Gun Listings, and Glock Talk to sell weapons.

Armlist has a disclaimer advising its users to follow federal and state laws, but its critics argue that—since the site’s administrators are not involved in any of the transactions that take place on the site—the laws are unenforced. Armslist did not respond to requests for comment.

Radcliffe Haughton bought the handgun he used to killed his estranged wife and two other people at a Wisconsin day spa in October via Armslist, despite the fact that Haughton’s wife issued a restraining order against him.

An undercover investigation of online gun sales done by the City of New York released in 2011 found that 62 percent of private sellers agreed to sell guns to buyers who said they probably couldn’t pass a background check.

The private-sale loophole is the first priority of a gun-control advocacy community energized by President Obama’s reelection and confident that the public will be receptive to tougher guns laws after a recent spate of shootings, from the Aurora theater massacre to Tuesday’s mall shooting in Oregon.

Gun-control advocates are hopeful that the lawsuit will reveal the deadly potential of the private-sale loophole, but say the loophole will ultimately meet its demise through legislation in Washington, D.C., not in a courtroom.

“Congress should respond to the fact that it’s easy for dangerous people to get guns on the Internet illegally,” says Lowy. “That’s not just a response to this lawsuit, it’s a response to the problem.”

“These cases are important because they stress that we have a background check system that’s like Swiss cheese.”

Still, “there’s always the challenge of persuading a judge and a jury that in addition to the person who sold the gun and the person who pulled the trigger, there’s someone else that ought to bear responsibility,” says Jon Vernick, the co-director of the Johns Hopkins Center for Gun Policy and Research. “That’s not impossible, but it’s always difficult.”

“There’s an argument to made that even bringing the lawsuit helps shine light on the problem, whether the suit is successful or not,” Vernick says, adding that the process of discovery in the case will inevitably lead to more public information about Armslist and sites like it.

John Feinblatt, the chairman of Mayors Against Illegal Guns, says the lawsuit is a “natural progression” as pressure to stop gun violence mounts.

“These cases are important because they stress that we have a background check system that’s like Swiss cheese,” Feinblatt says. “We have a very credible background check system that prevents thousands of people from buying guns illegally, but if we continue to have these gaps in the system, it just won’t work.”

The plaintiffs in the Vesel case are suing for an unspecified amount in damages—but her family and friends say they are primarily seeking justice for Vesel.

“If by being able to share her story and sharing our pain and our grief, maybe we can prevent another family from having to go through this,” Theresa O’Rourke, a close friend of Vesel’s, told the Daily Beast. “We believe her death was preventable. It’s okay to have a conversation about the epidemic of gun violence in this country.

“If we can start that conversation then maybe some small bit of something can come out of this nightmare. Because it’s a nightmare—she should be here now talking with us.”