The Daily - A Novel Legal Strategy for Mass Shooting Victims’ Families

Episode Date: June 18, 2024

As mass shootings plague the United States, victims’ families continue to search for accountability. To that end, a pair of lawsuits by the families of victims of the Uvalde school shooting will try a new tactic.J. David Goodman, the Houston bureau chief for The Times, discusses the unusual targets of the lawsuits and profiles the lawyers behind them.Guest: J. David Goodman, the Houston bureau chief for The New York Times.Background reading: The Uvalde lawsuits are among the most far-reaching to be filed in response to the escalating number of mass shootings in the United States.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Rachel Abrams, in for Michael. And this is The Daily. As mass shootings continue to plague the United States, the families of victims continue to search for accountability. Now, a pair of lawsuits by the families of victims of the Uvalde school shooting are trying a new tactic. The suits target a popular video game, a gun manufacturer, and Instagram, accusing them of helping to groom and equip the teenage gunman who committed the massacre. Today, my colleague David Goodman on the lawsuits and the lawyer behind them.

It's Tuesday, June 18th. So David, after a shooting, people are always looking around for who to blame. They ask questions about how did this person get a gun? Could anything have been done to prevent this? Could anything have been done to prevent this? Should anything have been done to prevent this? And now we've got these two new lawsuits that are filed by the families of victims in the Uvalde shooting,

and they're pointing the finger in a pretty interesting direction. So tell me about those. You know, after all of these shootings, what we have is people from the right and from the left sort of going to their different camps. On the Democratic side, there are calls for greater gun control, background checks, other types of policies that could be put into place to limit the access to guns. And on the Republican side, it's who is this person and what kind of mental health challenges are particular to this person.

And we've gone through the cycle so many times that it's really become just almost like an American tradition for us now. But, you know, recently there have been actually some efforts to try and sort of broaden the scope of who might be, you know, legally accountable for these shootings. We want to get you now to Uvalde, Texas. Families of victims of the Robb Elementary school shooting are making an announcement. You can say a lot of victims of the Robb Elementary school shooting are making an announcement. You can say a lot of things about the law enforcement response in this case.

But one thing you can't say is that they caused the shooting. Families of Uvalde shooting victims filed lawsuits against companies they say bear responsibility for products used by the gunmen. for products used by the gunmen. What's happening here is we have these two new lawsuits filed by the families of most of the victims of the Evaldi massacre. Lawsuits have now been filed against three companies, Meta Platforms, which owns Instagram. The video game company Activision, which makes the popular game Call of Duty, and Daniel Defense, which made the AR-15-style rifle used in the massacre.

That accused video game company and one of the biggest social media platforms and a gun manufacturer of essentially grooming the gunman. These are really some of the most far-reaching to be filed yet in response to these escalating number of mass shootings in the U.S. And they're really the brainchild of this one lawyer. shootings in the U.S. And they're really the brainchild of this one lawyer. Hello. Hi, guys. Can you hear me? Yeah. How are you? Good, good. Hi, David. How are you? And tell me about this lawyer. Well, his name is Josh Koskoff. He's 57 years old.

He's based in Connecticut. And for most of his career practicing law, he's been a medical malpractice attorney, a personal injury attorney. The way I got into the gun litigation was really by total accident and happenstance. And he really had no experience trying gun cases at all. And so how does he actually go from making the leap to representing some of the families here? go from making the leap to representing some of the families here. Well, the way he makes this transition starts well before Evaldi, basically 10 years earlier. Well, I'm about 20 miles from Sandy Hook. It starts with the school shooting at Sandy Hook. And he essentially gets involved by accident. Tell me how you got approached about the Sandy Hook case. I was getting a ride to the airport and the driver asked me what I did for a living. And I told him that I was a lawyer. And he said, oh, really? Boy, do I have a friend who really needs a lawyer? He said that his friend

had just lost a child at Sandy Hook. He had a conversation with a cab driver who ended up connecting him with one of the Sandy Hook families. At the time, I wasn't really thinking about a lawsuit. I was simply thinking about, could I help these people get through probate? Could I help them manage the press, which was all... You know, he's been a medical malpractice attorney. He can help in terms of the basic law after someone's lost someone. But I started to get to know these families and I started to see tremendous shattering loss, which left them sort of looking for answers. And as he's trying to figure out the strategy, he comes across photos of the crime scene that the police have released.

And I saw a photograph of the weapon on the floor of this classroom, and I just asked the question, how did it get here? And so that sort of began a long odyssey of... So he starts to think about the kinds of liability that might exist here. And as he starts looking into this... I knew nothing about guns as a product, and I knew even less about gun litigation. I didn't know anything about the law of guns. I just assumed you could sue a gun company for being negligent. I thought you could sue them for selling a product that was unreasonably dangerous.

You know, his assumption is that, like any legal action, you can hold a company liable for the way that their product is used or misused. Only to learn that actually, this industry is uniquely protected by the federal government. And so he ends up discovering that there's this 2005 law, the Protection of Lawful Commerce in Arms Act, often referred to as PLACA. And I read one case and I thought, what is this? PLCAA. And I looked it up and I read the statute and I genuinely thought it was not constitutional. So what this law does is really give arms makers, gun manufacturers, a broad set of protections

against being sued for the way their weapons are used to cause harm, you know, the sort of harm that occurs all the time in this country. And most lawyers come to the conclusion that this all but slams the door shut on the courts when it comes to bringing legal cases against gun makers for these mass shootings. And worst of all, the gun industry was perceiving it as an absolute immunity. And the perception of being immune from civil liability and having to pay damages for harms or deaths that are created when you sell guns is a very dangerous perception. Okay, so Koskoff is considering suing the company that made this gun

that was used in Sandy Hook. And he runs up against this wall of protection that's unique to the gun industry, Plaka. Which, does this make him think twice? Well, not exactly. You know, he didn't really even know enough to have that attitude. He sort of felt like this was the right thing to do and he was going to keep going with it. So what he ends up doing with this case is taking advantage of an exception to the federal law. So the law is the protection of lawful commerce in Arms Act. What he correctly notices is

that it does not protect unlawful commerce. And so what he tries to do is prove that the company in the Sandy Hook shooting, Remington, has done illegal marketing, you know, has essentially violated a Connecticut consumer law. Okay, so basically he's arguing, hey, Remington broke this other law, so they should not be protected by PLACA. Right. And does that work? It does. And so, you know, one of the things that he points to is that these advertisements that were aimed at regular people that played up the gun's military connections and their combat readiness. And he basically argues that this was an unlawful promotion because in the military, guns are used to wage war and kill people. I mean, there's a lot of legal back and forth,

but, you know but eventually the suit survives the company's attempts to get it thrown out, which in and of itself is really a remarkable feat. And so then they go into this phase where the company has to turn over documents as part of the lawsuit. It's as if they were selling widgets, but they're talking about AR-15.

So what they're trying to do in this time period of the Sandy Hook shooting was they're trying to reach and expand the AR-15 market to target youth as potential future customers. They call the target an end user. So what he's able to see in these documents that are turned over are internal company discussions about marketing weapons. And he sees that this company is trying very hard to reach a younger audience. We see in the documentation questions like, what kind of problems do they have? Is it a man, a woman, or a kid? Who are we trying to reach? And why does he think they need

to reach this younger audience? Because they need to win that audience to sell their products. You know, this is like any other item in a market that's very competitive. In order to get new customers, you need to go get them when they're young. You need to develop a brand loyalty early on. We saw this effort reflected in the documentation that we were able to obtain. There were very intentional efforts to reach these kids through Call of Duty. In fact, the records show that Remington,

the gun manufacturer, had actually made a deal with Activision, the makers of Call of Duty, to get one of their products featured in the game. And it was widely reported that the Sandy Hook shooter was an avid player of Call of Duty. Oh, wow, interesting. So how did they actually make use of that information in court?

At this point, all that information is really locked up in the lawsuit. It won't be made public until the trial. But before that ever happens, the company Remington is in financial trouble and is essentially bankrupt. And its insurers are the ones negotiating with the lawyers at this point. And they agree to a settlement to end this lawsuit. So does that mean they won? Well, it's a win for the families. They got $73 million. In a free market where corporate conduct is often motivated by greed and people lose their moral compass, the only way to correct

that conduct and to protect the public is by hitting them in the pocketbook, you know? I mean, this was the biggest settlement by a gun manufacturer for a mass shooting that we've yet seen. But, you know, he didn't actually test these arguments at trial. So there was never a final verdict on the arguments that he was putting forth. After the settlement happens, he really felt like this was the end for him with these kinds of cases. I didn't know that I would be the, quote, like, mass shooting lawyer, unquote. It was something I never anticipated. But then, just a few months later,

after they settle the Sandy Hook case, a gunman walks in to Robb Elementary School in Uvalde, Texas. And Uvalde was like Sandy Hook 2.0 with even more outrageous facts. And the shooting there is really eerily similar in its details. And I just felt when I was contacted by these families that I can't turn my back on this. Like, I knew it was my obligation to do it.

So Koskoff gets involved in Uvalde. It had been pretty much widely reported early on that he acquired the Daniel Defense AR-15 effectively from the day he turned 18. And as he starts to dig into the case, what stands out to him is the timing. So that told me that this company had been targeting this kid for years. And he's pretty convinced he can draw a direct line between the marketing scheme and the shooter and really expand on this strategy that he'd pioneered with Sandy Hook. What makes him say that? How is he so sure? Well, part of the reason he feels this way is that he says he has access to information that's actually coming from the shooter's phone. Now, to be clear, this is something that I haven't actually seen myself. But Koskoff, in writing his complaint, what he does with that is construct this really vivid timeline that he says explains, you know, the crux of the matter here. You know, how did

a impoverished teenager from, you know, a small town in rural Texas, becomes so enamored with this pretty expensive rifle that he would be so primed to purchase it that he would do so really minutes after he was legally able to. So what does Koskoff actually learn from looking at the shooter's phone and what timeline is he able to construct from that? Okay, well, according to the complaint, in November of 2021, which is several months before the shooting, the shooter here downloads Call of Duty Modern Warfare. And he's downloaded the game before,

a different version of the game. But what's unique about this version of the game is that the title page, so the loading screen that comes up when you first start playing the game, features a character, you know, really sort of all decked out in body armor. And they're carrying an AR-15 style rifle with this sort of special sight on it, a special scope. And this is a weapon made by Daniel Defense.

It's the DDM4 V7 model, which is exactly the rifle used by the shooter in Uvalde. So he's exposed to this weapon at that point. We don't know if it's the first time he's seen it, but certainly after that moment, he begins to research on his phone this particular rifle, this very niche weapon. Why this weapon? All these weapons do the same thing. They all function exactly the same, and they all offer the same ability to kill. And these guns are not the cheapest on the market. There was something about this small company from Georgia that spoke to this kid.

And so you can see that shortly after downloading this game, he begins to research Daniel Defense and research this particular weapon. And the Daniel Defense website becomes one of these frequently visited sites on his browser of this phone that Koskoff says he has access to. And the shooter begins saving money from his low-wage job to buy this high-end weapon.

And according to the complaint, about a month before the shooting at Robb Elementary, the shooter creates an account on the Daniel Defense website. He puts the Daniel Defense rifle in his cart, like many of us have done with other items. And soon after, this is in April of 2022, while the shooter is still 17, he puts this particular weapon, the DDM4V7,

into his cart on the website. And the complaint alleges what the company does at that point is send him an email. And they do what every other company does in the online marketplace. They say, hey, are you still interested in buying that Daniel Defense rifle? Because we're still more than happy to sell it to you. Now, this is one of these kinds of, you know, alerts that says, hey, you know, we saw you put something in your cart. Do you still want to buy it? But he's not allowed to buy it at that moment because he's still 17. All they have to do is

buy their time to get what they really want from him, which is his credit card. He's so eager for that moment to come. He's apparently Googling how many days it will be. He then goes on a kind of counter to figure it out. And the day he turns 18, he's on that Daniel Defense website. That happens when he is 18 years and 23 minutes old. Just minutes after midnight. Wow. And 23 minutes after turning 18, he gets confirmation that he has purchased it, this roughly $2,000 rifle. It was clearly proof positive of a successful marketing campaign. Remember, their goal is to sell this kid an AR-15 as soon as possible to beat out their competition.

They have successfully hooked this kid with this engagement of a sale. And eight days later, he walks into Robb Elementary School with that rifle and opens fire. We'll be right back. So, David, just to recap, Koskoff is examining the sale of this gun to the Uvalde shooter. And it seems like that email from the gun maker is important. But these are the kinds of emails that I get all the time when I'm buying something online, like a coffee maker or a pair of shoes or something. So help me understand why it's important and significant here. Well, for Koskoff, this push email is,

you know, a pretty important piece of evidence that really allows him to make the argument that Daniel Defense is offering to sell a weapon to a minor. And that would be a violation of Texas law. Right. And if he can successfully argue that they violated state law, he can get around PLACA and bring a lawsuit against the gun manufacturer for this mass shooting. That's right. But Daniel Defense isn't the only company being sued here. So you had also mentioned the companies behind Call of Duty and Instagram. So tell me how Koskoff thinks that those companies are involved. Right. So Koskoff has actually filed another lawsuit in California,

and that's the one that names Activision, the publisher of Call of Duty, and Meta, the parent company for Instagram. And that lawsuit is about that names Activision, the publisher of Call of Duty, and Meta, the parent company for Instagram. And that lawsuit is about holding those companies liable for essentially helping promote the weapons that are used in mass shootings to vulnerable children. I mean, Daniel Defense is, remember, a niche company. They have less than 1% of the market share for these types of weapons. And his argument is that they wouldn't have been able to reach this kid without the help of these other companies. And, you know, what he says is that

it really took these three prongs, the gun manufacturer, the video game company, and the social media company, you know, to groom this Uvalde shooter, to get him primed to want this weapon. And what is he basing that off of? Is it just the appearance of the gun on the loading page of the game? Well, in the case of Call of Duty, like that is evidence of a connection that he sees between the two companies.

That kind of thing doesn't happen just by accident. Okay, so Koskoff's argument is that there's this three-pronged marketing strategy. And he's saying that the gun manufacturer needs these two companies to capture a younger audience. So let's talk more about his arguments around those two companies, starting with Activision, the publisher of Call of Duty. You know, Koskoff says that, you know, he's trying to make the link between the Daniel Defense gun and Activision. But beyond that, he's making a broader argument for how the game Call of Duty actually is really a key part of this ecosystem, he would say, that can shape a person like this Yuval De Shooter. And what his argument is,

is that, you know, Call of Duty is a first-person shooter game. It's, you know, incredibly popular. It's really this extremely immersive experience. And, you know, for Coscov, this is important. This is a very important point. Video games have always had an addictive quality, but they have never had the 360-degree immersion of a Call of Duty. It uses the reward system of an addictive game and partly and very much is a training simulation that is so realistic that it allows the user to experience the actual recoil of the weapon, the chaos of killing, and to be habituated to it. He argues it's more like

a simulator and less like a game that is really sort of giving players the experience of killing. You know, it's practice for eventually doing the thing. And it is too facile to say video games don't cause violence when a lot of those studies are based on generic video games of yesteryear. So, you know, what Koskoff argues, basically, is that the studies out there don't really account for this, that they're about video games in the past, that essentially, you know, these conversations that we've had about violence in video games, you know, these are outdated. And in some sense, it's true that there haven't been robust studies

on, you know, the impacts of newer versions of Call of Duty, for example, or, you know, how it might influence behavior. But, you know, this has been an area that's been studied for a while, including recently. And there hasn't been this exact connection that, you know, he wants to say exists between, you know, increasing levels of realism and violence. And, you know, it's also important to note that,

you know, at the same time, experts really do say that gun violence is more tied to gun access than it is to violent video games. I mean, that is a really striking argument, though, the idea that a game could train you to use a specific type of weapon. I mean, aren't these two experiences, playing a video game and using a gun in real life, really quite different? Well, one of the things to know about the shooter in the Evaldi massacre is that prior to going to that elementary school and opening fire,

by all reports that we have, he had never fired a weapon before. But he had shot for many, many hours, countless hours, guns within the world of Call of Duty. And in fact, one of the things that Koskoff argues in the complaint, and he has information from the phone and other internet activity to back this up, he claims, is that he was very, very good and got lots of positive feedback from the game to indicate that he had really excelled at it. And Koskoff is quick to point out,

and he does so in the complaint, that this shooter and the one in Sandy Hook were not the only ones to play Call of Duty. You also had the El Paso Walmart shooter, the one in Highland Park, Illinois. They were also avid, apparently, players of this game, according to public reports. But couldn't it just be that people who are more likely to commit mass shootings also enjoy playing these types of violent games? I mean, I feel like we've been having this debate forever about whether violent video games increase actual real-world violence is the argument he's making that the game causes the behavior just like a little bit of a stretch.

Yeah, I mean, I think if that was the only argument that he was making, it probably really would be a stretch. And we would be back in this, you know, decades-long debate over violence in video games and whether you can connect the two. But what he's really arguing here is, you know, not so much that the game caused this action, but that it's an addictive platform that's part of this larger ecosystem that allows the gun manufacturer to reach teenagers and that this whole ecosystem is essentially facilitating violence. So, Koskoff is saying, hey, Call of Duty is in a league of its own in terms of its addictiveness and its ability to influence its users. And he's also making this argument that the game is connecting these young, sometimes troubled people like the shooter with this niche AR-15 style rifle. and that therefore Call of Duty and its maker, Activision, are at least partially responsible for the Uvalde shooting.

So what did they actually say in response to that accusation? Well, you know, as to whether they have an actual formal marketing agreement with Daniel Defense, they didn't comment on that. And they didn't want to address, you know, the specifics of the lawsuit. They did give me a more general response, acknowledging, you know, the pain and the horror of the Uvalde shooting, but also saying, quote, academic and scientific research continues to show that there is no causal link between video games and gun violence. And as the company points out there, you know, it is a tiny fraction of people that play video games that are violent and go on to commit real world violence. And there are millions and millions of others who, you know, have been playing this game for years all across the United States

and haven't done anything like that. And at the same time, there's been many other mass shooters that were not connected to the game. Right. And so we've talked about prongs one and two, which are the gun manufacturer and the video game. So tell me about the third prong, which in this case is Instagram. Specifically, what is the legal logic behind blaming them? You know, Koskoff says that Instagram is key because of how easily gun content can reach young people on the platform, that young people are able to sign up, even those who are younger

than they're technically allowed to get on the platform. And that this essentially allows for kind of an unregulated or unmitigated connection between gun marketers, gun manufacturers, and teenage viewers of Instagram. And even though the social media platform doesn't actually allow these sponsored ads, you're not allowed as a gun manufacturer to advertise on the platform. What you can do is have organic content. They can have their own posts. And one of the things that Costcoff is arguing here is that, you know, because these companies have felt like they had, you know, a federal shield around them that protected them, they've kind of allowed their marketing efforts to, some of them anyway, to get pretty extreme. And so the complaint calls attention to posts from Daniel Defense, including one where they show off a weapon set up and describe it as, quote,

totally murdered out. And there's another one that shows a view through a rifle scope, you know, looking down from a rooftop, and it's in an urban setting, and there's a windshield of a parked car that's in the crosshairs. And the caption reads, rooftop ready, even at midnight. Wow. And, you know, targeting someone in a car with your weapon, you know, it's almost by definition an aggressive use of that weapon. And it's something that they were marketing. You know, they were marketing this weapon as something that you might use in these situations. Right. And so these are posts that Koskoff argues have gotten increasingly extreme because there's essentially the belief that there's nothing reigning them in, that the

law protected them, and that at the same time, there was actually market share to be gained by selling this violence. Okay, but do we know that the Uvalde shooter even saw some of the content on Instagram that we're talking about? No, we don't know that. I mean, it's not clear, at least from what's in the complaint that he did. What the complaint says, and this is from cell phone data that Koskoff says he has, is that the shooter was an avid user of Instagram, that he had at least 20 accounts. And we know he was searching for the gun, at least according to Koskoff's description of what was on his phone, and that he was on the Daniel Defense website. But it's still an open question as to whether he would have been shown this Daniel Defense content because of his activities on that website. Right. This seems like a hard argument that Instagram should be held liable for something

that Daniel Defense or influencers or whoever were posting. Right. It is a big challenge for them in this lawsuit against Meta, at least. And that's because of a law that's broadly known as Section 230 that really protects these platforms from the content that people post on the site. So it's very difficult for someone to come along and sue Instagram because of that content. You know, it's somewhat akin actually to the gun context with that 2005 law, PLACA, and it's a legal hurdle that many people have thought makes these kinds of suits not impossible, but very, very difficult. And Koskoff is, you know, pushing on that wall in the same way that he's been pushing on the Plaka wall

in the gun context. And, you know, what makes these suits, you know, novel and sort of surprising is, you know, he went from trying to force, you know, open one door while also pushing on another very difficult door. And so he's really kind of doubled his difficulty with these suits. But he believes that, as we've discussed, the evidence in this case is striking enough that it makes it plausible. And what is Meta saying in response? Well, Meta has not said anything about this lawsuit. In fact, I followed up, you know, and they don't have a public comment about it. David, all of these arguments seem extremely difficult to make.

How likely is it that these cases actually go anywhere? Well, you know, I think at this point, it's pretty hard to say, but there's a lot of hurdles standing in his way in both cases. You know, he's not just going after a gun manufacturer. He's going after one of the biggest, you know, social media companies and a huge video game company, which just happens to be owned by Microsoft. So, you know, this case could get thrown out in the initial process. You know, he may lose if he ever gets to trial at that point. But what Koskoff is trying to do here and what other lawyers I talked to said is to really try and sort of shift the conversation away from the person and also kind of away from the gun to looking at what is the culture that surrounds these kids.

And there is a sense in, I think, America right now that there is something sort of off around social media use and teenagers. You know, I asked Koskoff about this. media use and teenagers. You know, I asked Koskoff about this, you know, his lawsuit is kind of hitting at a time when there's broad discussion of, you know, the potential harms of social media. But I think what he's been able to do in this suit is reframe some of those arguments around very specific data from this one shooter's online activities and really paint a picture of how these three prongs came together to create one shooter and, you know, possibly allow the families some way to get accountability and actually hold someone liable for the shooting that, you know, really isn't available through any other means. And so, you know, for Koskoff, just doing that is worth trying. And so, you know, for Koskoff, just doing that is worth trying. David, thank you very much.

Thank you, Rachel. We'll be right back. Here's what else you need to know today. Russian President Vladimir Putin is visiting North Korea. Putin is expected to ask North Korean leader Kim Jong-un for more weapons for Russia's war with Ukraine. This will be the second meeting between the two men in the last nine months, a sign of Russia and North Korea's deepening military ties. And on Monday, Maryland Governor Wes Moore

pardoned about 100,000 people for low-level marijuana offenses, like possession. The move comes as more and more states are legalizing marijuana and pardoning marijuana-related crimes, which criminal justice advocates say disproportionately affect people of color. Maryland's attorney general said about the pardons, quote, Today's episode was produced by Diana Nguyen,

Olivia Nat, and Sydney Harper. It was edited by Liz O'Balin and Paige Cowett. Fact-checked by Susan Lee. Contains original music by Dan Powell, That's it for the daily i'm rachel abrams see you on thursday after the holiday