The Lawyer Trying To Hold Gunmakers Responsible For Mass Shootings - The New York Times

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lawyer-trying-to-hold-gunmakers-responsible-for-mass-
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The Lawyer Trying to Hold Gunmakers

Responsible for Mass Shootings
Josh Koskoff’s legal victory against Remington has raised the possibility of a new
form of gun control: lawsuits against the companies that make assault rifles.
By Michael Steinberger
Sept. 29, 2023
Brian Hogan was standing in front of a wrought-iron tree bench, head bowed, as Josh
Koskoff approached him.
“Brian?” Koskoff asked.
“Yeah,” Hogan replied quietly. As Koskoff drew closer, he noticed that Hogan was crying.
Although the two had never met in person, Koskoff quickly extended his arm across
Hogan’s shoulder to comfort him. It was a warm, breezy afternoon in late June, and
Highland Park, Ill., a town on Lake Michigan just north of Chicago, was a picture of
suburban tranquillity. Shoppers darted in and out of stores along Central Avenue.
Opposite a Walker Bros. pancake house, a father and his young daughter were happily
devouring ice cream cones. But for Hogan, this spot brought back the darkest memories.
It was here that he and his family were watching last year’s Fourth of July parade when
Robert Crimo III, perched on a rooftop across the street and armed with a Smith &
Wesson M & P 15, an AR-15-style semiautomatic rifle, opened fire on the crowd. Hogan’s
father-in-law, Eduardo Uvaldo, was one of seven people killed. Hogan’s 13-year-old son
was hit by a bullet but survived.
Gathering himself, Hogan recalled that Eduardo, sitting in a lawn chair, was initially
struck in the forearm. He got up and stumbled toward the tree bench where Hogan and
Koskoff now stood. Hogan said that as Crimo sprayed the area with bullets, he noticed an
abrasion on his father-in-law’s head. He assumed that he had scraped himself while
trying to escape. In fact, though, it was the entry point of the bullet that ultimately killed
him. Hogan told Koskoff that he grabbed two chairs and a table and used them to try to
protect Eduardo. A woman who was hiding on the other side of the tree implored him to
get down. “He’s trying to shoot you!” she screamed.
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Hogan took some solace in the thought that he had perhaps prevented Eduardo (“a hell of
a man”) from being struck again and that this had prolonged his father-in-law’s life just
enough to allow the family to say goodbye to him. Eduardo succumbed the following day.
Referring to Crimo, Hogan said, “That [expletive] scumbag wanted him to take his last
breath here, but I didn’t let that scumbag do it.” Even so, he had struggled with feelings of
guilt. “I was putting the blame on me that he passed,” Hogan said, his voice cracking. “I
tried. I tried.” Koskoff replied consolingly: “I hope you realize — I know you realize there
was nothing you could do. You did everything.”
It was Koskoff’s first visit to Highland Park and first time he had come to see the Uvaldo
family. When the Uvaldos began contemplating legal action against Smith & Wesson, they
were directed to Koskoff, a lawyer based in Bridgeport, Conn., because of a landmark case
that he won several months before Eduardo’s death: In February 2022, a $73 million
settlement was announced in a lawsuit that Koskoff brought against the gun maker
Remington on behalf of families of the victims of the Sandy Hook massacre. An AR-15-
style semiautomatic rifle made by Bushmaster, which at the time was owned by
Remington, was used in the 2012 shooting that left 20 first graders and six adults dead.
Because Remington was in bankruptcy, its insurers negotiated the agreement.
A memorial site with a photo of Eduardo Uvaldo (right) near where he was shot at a Fourth
of July parade in Highland Park, Ill. Jim Vondruska/Getty Images
While it was believed to be a record settlement in a case involving a firearms
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manufacturer, the real significance of Soto v. Bushmaster was not the payout but that it
ever reached the point where the insurance companies felt compelled to make a deal.
Federal law provides broad immunity to gun makers from tort litigation, or civil law
complaints. The Protection of Lawful Commerce in Arms Act, or PLCAA, enacted by
Congress in 2005, was thought to have essentially eliminated any possibility of holding
them accountable for crimes committed with their weapons. PLCAA included several
exceptions, however, and Koskoff, a medical malpractice and personal-injury lawyer who
had no prior experience of gun litigation, used two of them to pursue Remington. Soto
was not the first case to test the limits of PLCAA, but it is the only one filed since the law
took effect that has arguably succeeded in pinning responsibility for a mass shooting on a
gun company (although it bears repeating that it wasn’t Remington but its insurers who
settled).
Koskoff’s unexpected victory jolted the gun industry and energized gun-control
advocates. Soto “pierced the shield that PLCAA provided,” says Adam Winkler, a U.C.L.A.
law professor and Second Amendment expert. Koskoff’s win came against a backdrop of
despair about gun violence in America. Mass shootings have become commonplace;
there were over 600 in each of the last three years, according to the Gun Violence Archive
(mass shootings, by the archive’s definition, involve injury or death for four or more
people, excluding the shooter). Despite polls showing strong public support for stricter
gun-control measures, most congressional Republicans are unwilling to take steps to limit
access to guns. Some broke with their party last year to help pass the first gun-control bill
approved by Congress in nearly three decades. But the legislation was modest in scope:
For example, it included making background checks slightly more stringent for buyers
under 21. Many observers think that the firearms industry, through some of the weapons
its sells, AR-15-style rifles in particular, and how it markets them, has contributed
significantly to the prevalence of mass shootings. Soto raised the possibility that gun
makers could yet be constrained through the time-honored tradition of using litigation to
induce more responsible corporate behavior.
Soto has brought Koskoff, who is 57, the kind of national recognition that his father and
grandfather, both prominent trial lawyers, enjoyed. His firm, Koskoff, Koskoff and Bieder,
or K.K.B., also led a successful defamation suit in Connecticut against Alex Jones, the
right-wing conspiracy theorist who claimed that Sandy Hook was a hoax; that case
resulted in a nearly $1.5 billion total judgment last autumn. In the wake of the Soto and
Jones cases, Koskoff has been in wide demand as a speaker, with fellow lawyers and civic
groups eager to learn more about how he and his colleagues achieved these victories. At a
conference in Boston in early September, around 800 people attended a panel discussion
on mass violence that featured Koskoff.
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Koskoff speaking in front of the plaintiffs after a $965 million judgment in the defamation
trial against Alex Jones in 2022. Bryan Woolston/Associated Press
Not surprisingly, he has become a go-to lawyer for other victims of mass-casualty gun
violence. In addition to his clients in Highland Park, he was approached by families in
Buffalo and Uvalde, Texas, after the deadly rampages in those communities last year, and
he has been retained by a number of them. But while the three shootings followed a
familiar script — the perpetrators were troubled young men who spent much of their time
online and who used AR-15-style rifles to carry out their crimes — each has its own set of
facts, and different jurisdictions pose different challenges; Koskoff has struggled to
balance the urgent desire for legal redress with the need to build cases that stand a
chance in court. Those efforts are being complicated to some extent because there are
now lawsuits nationwide that are modeled after the Sandy Hook case. The law is still
heavily stacked against plaintiffs, though, and Koskoff worries that even just one poorly
conceived suit could result in a decision that narrows the opening he achieved with Soto.
“You can snatch defeat from the jaws of victory,” he says.
But success carries its own risks. If Soto turns out to be a genuine breakthrough that
leads to settlements with other gun makers or verdicts against them, it seems quite likely
that the U.S. Supreme Court will eventually be called upon to decide whether such
litigation is consistent with the intent of PLCAA. The court’s conservative majority has
taken an expansive view of gun rights; last year, for instance, it struck down century-old
New York State regulations that strictly limited the ability of people to be armed in public.
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If a case similar to Soto reaches the court, the gun industry might well prevail. “You can’t
push back against PLCAA without potentially bringing about some even more draconian
Second Amendment protection for gun manufacturers,” says Heidi Li Feldman, a law
professor at Georgetown University.
On that afternoon in Highland Park, Koskoff and Hogan weren’t weighing the legal
implications of Soto. Hogan just knew that he wanted Smith & Wesson punished for what
he saw as its role in the shooting that killed his father-in-law. As he and Koskoff continued
to talk under the tree where Eduardo Uvaldo once lay mortally wounded, Hogan said he
supported the Second Amendment — “That’s what this country was built on, you know,
the right to bear arms” — but that there was no justification for selling AR-15-style rifles
to civilians: “That’s for [expletive] military.” He expressed disgust with the gun industry.
“It’s all money for them,” Hogan said, adding that he was eager for Koskoff to file suit on
his family’s behalf against Smith & Wesson. “Take them on, man. Make those son-of-
a-bitch scumbags pay for it.”
The road to Soto v. Bushmaster ran through Connecticut, and not just because the
shooting that prompted the lawsuit occurred there. For many years, Connecticut was a
center of the American gun trade. It was home to numerous gun makers, including Colt,
which in the early 1960s became the first company to sell AR-15s to civilians. Over the
past two decades or so, as Connecticut has become even bluer politically, there has been
an exodus of firearms companies to more gun-friendly states. But some remain. When
Koskoff and I had dinner several months ago, we met at a restaurant in Southport, not far
from the corporate headquarters of Ruger Firearms, a well-known brand. There is also
one other way in which Soto was rooted in Connecticut: A lawsuit filed by the city of
Bridgeport 24 years ago inadvertently helped lead to PLCAA.
In the 1980s and ’90s, the United States experienced an epidemic of gun violence. The
shootings often claimed just one or two lives, but the cumulative death toll was
significant, particularly in urban areas, which suffered economically as a result. A
number of cities considered taking legal action against gun companies, and they found
encouragement — and a blueprint — in the litigation being pursued at the time against
the tobacco industry. In the mid-’90s, dozens of states sued the nation’s largest tobacco
companies over health costs related to smoking. Those companies had once been seen as
unassailable, but under mounting pressure, they agreed in 1998 to a $206 billion
settlement, a record sum. Some mayors and lawyers believed that the firearms industry
could likewise be held accountable. They also recognized that gun makers were especially
vulnerable compared with tobacco giants like Philip Morris and R.J. Reynolds. Many gun
companies were relatively small, family-owned businesses that didn’t have the resources
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to defend themselves in multiple lawsuits.
Bridgeport was one of the first cities to act; in 1999, it sued a dozen gun makers. (More
than 30 cities, counties and states ended up bringing cases.) Then as now, there was deep
frustration over the failure of Congress to pass tougher gun-control measures, and
Bridgeport’s mayor, Joe Ganim, said that in addition to penalizing the gun industry for the
proliferation of cheap handguns and for its failure to make its weapons safer (by, for
instance, adding electronic locks so that they could only be operated after entering a
code), he and other civic leaders were using the legal system to do what the legislative
branch conspicuously would not. The goal was “creating law with litigation,” Ganim told
The Times that year. (The Bridgeport case was later dismissed by a judge who ruled that
the city lacked standing to sue gun makers because it had not suffered direct harm.)
Koskoff is preparing a case against Smith & Wesson, the maker of the gun that killed Eduardo Uvaldo. Thea
Traff for The New York Times
After the Columbine massacre, in 1999, the Clinton administration threatened to bring a
class-action lawsuit against the firearms industry. Smith & Wesson, fearing that it might
be driven into bankruptcy by a wave of litigation, negotiated a deal with the White House
in which it promised to add various safety features to its guns and to exercise more
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rigorous controls over how its weapons were distributed and sold. Announcing the
agreement, in March 2000, President Clinton said that he hoped it would lead other gun
companies to “respond in kind.” Instead, some of Smith & Wesson’s competitors, along
with gun industry representatives, pushed for a consumer boycott that nearly put Smith
& Wesson out of business.
At the same time, the National Rifle Association and another advocacy group, the
National Shooting Sports Foundation, or N.S.S.F., began lobbying their allies in Congress
to enact legislation protecting gun companies from litigation. They got their wish with the
passage of PLCAA, which gave gun companies a degree of immunity exceeding that
given to any other industry. (Many states already had similar laws.) Republicans
controlled the House and the Senate, but the bill also drew Democratic support — the
Senate’s Democratic leader, Harry Reid, voted for it. Hailing the bill’s passage, President
George W. Bush said that it would “stem frivolous lawsuits, which cause a logjam in
America’s courts, harm America’s small businesses and benefit a handful of lawyers at
the expense of victims and consumers.” The head of the N.R.A., Wayne LaPierre, called
PLCAA a “historic piece of legislation” and said that “the Second Amendment is probably
in the best shape in this country that it’s been in decades.”
Ryan Busse, who was a gun-company marketing executive at the time, says that PLCAA
left the firearms industry feeling unshackled. Any restraint that gun manufacturers had
exercised in the past with regard to how they marketed their weapons and the types of
guns that they sold was seen as no longer necessary. “PLCAA changed everything,” says
Busse, who is now one of the industry’s fiercest critics. He left in disgust over what he
saw as its role in contributing to the conditions that have led to so many mass shootings
and for what he considered its callous indifference to the bloodshed. (Busse is now a
Democratic candidate for governor of Montana.) Legal experts agreed that PLCAA was a
watershed that made it very difficult if not impossible to hold gun companies liable for
crimes involving their weapons (though under the law, they could still be sued for
defective products). Over time, that perception became a kind of shield in itself, deterring
potential litigants from even trying to pursue claims.
Josh Koskoff was unaware of PLCAA when he agreed to help the family of Victoria Soto, a
first-grade teacher at Sandy Hook Elementary School killed while trying to protect her
students, with some probate matters. Koskoff is the third generation of a Connecticut
legal dynasty. K.K.B. was started in 1936 by his grandfather Theodore Koskoff, a
celebrated litigator who served as president of the Association of Trial Lawyers of
America (which has since been renamed the American Association for Justice). His son,
Michael, who joined the firm out of law school, was a renowned figure in his own right.
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Michael, who died four years ago at age 77, was known for his commanding courtroom
presence and ability to turn cases into parables about right and wrong that could
persuade even deeply skeptical judges and juries.
President George W. Bush signs the Protection of Lawful Commerce in Arms Act in 2005.
Jim Watson/AFP, via Getty Images.
Josh inherited his father’s talent for storytelling — and winning. He has successfully
litigated a number of big cases, though his manner is resolutely low-key, with a wry sense
of humor that is often directed at himself. (He and I grew up in the same Connecticut
town; although he was just a year ahead of me in school, neither of us can recall ever
having a conversation as kids.) But despite his track record, when the Sotos and eight
other Sandy Hook families, along with one survivor of the shooting, expressed a desire to
try to hold Remington accountable, Koskoff knew that his skills would be greatly tested.
The facts, as he saw them, were damning, and in a country with a different relationship
with guns, Remington’s culpability would have been obvious and unquestioned. PLCAA,
however, had seemingly put gun makers beyond the reach of the law, at least when it
came to the criminal misuse of their weapons.
But David and Francine Wheeler, whose 6-year-old son, Ben, was among the Sandy Hook
victims, felt that they at least had to try. They, too, were unfamiliar with PLCAA when
they hired Koskoff’s firm in the summer of 2013 and were dismayed by the extent of the
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protection that Congress had given the gun industry. The Wheelers, though, were unfazed
by the prospect of losing in court. “There was nothing worse that we could suffer,”
Wheeler told me, “nothing worse that could be taken from us.”
Koskoff knew from the start that any action that he brought against Remington could not
be seen as an attempt to put American gun culture on trial. “Josh was especially attuned
to the need to protect ourselves from the accusation that what we wanted to do was to
take a Sharpie to the Second Amendment,” says Katie Mesner-Hage, who after
graduating from Yale Law School was hired as a legal fellow to help Koskoff research the
gun industry and Sandy Hook. In Koskoff’s view, it was a case about corporate
misconduct, not the right of Americans to bear arms. For that reason, he turned down
offers of help from several gun-control organizations; while he respected their work,
having them as co-litigants would have made it easy for critics to portray a lawsuit
against Remington as a backdoor assault on the Second Amendment.
But Koskoff also recognized that he could not file a complaint that danced around the fact
that the gun was the problem — that Adam Lanza, the Sandy Hook assailant, was able to
fire 154 rounds and slaughter 26 people in around 10 minutes because he was armed with
a weapon of war, the Bushmaster XM-15, an AR-15-style semiautomatic rifle. AR-15s were
developed for use by the U.S. military and excel at killing large numbers of enemy
combatants quickly. That is their purpose, and it was the reason AR-15-style rifles were
outlawed by the 1994 assault weapons ban. Sales resumed when the legislation expired a
decade later, but the guns hadn’t been made any less lethal. Koskoff believed that there
was no justification for selling them to the public and that Bushmaster and its parent
company Remington knew this as well as anyone.
In fact, Bushmaster’s marketing emphasized that its semiautomatic rifles were battlefield
weapons. The company touted their “military-proven performance.” One ad went further,
implicitly pitching some of Bushmaster’s rifles as killing machines. It read, “Forces of
opposition, bow down. You are single-handedly outnumbered.”
It took Koskoff, Mesner-Hage and Alinor Sterling, a partner at K.K.B., around two years
to build the case against Remington. They wanted to gather as much information as they
could before filing and were dependent to a certain degree on the pace of the multiple
investigations into the shooting. They knew that the brief had to be airtight. The goal of
PLCAA’s backers was to get cases thrown out immediately; the law was intended to be a
tripwire. This “front-loading of legal impediments,” as Koskoff puts it, meant that the
reasoning and the writing needed to be extraordinarily persuasive.
The case they developed rested on two of the exceptions in PLCAA. One says that a gun
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company can be sued for negligent entrustment — for providing a firearm to a customer
who it knows might wield it in a way that physically endangers others and who indeed
ends up using it in a reckless manner. They alleged that Bushmaster knew that AR-15-
style rifles were unsuitable for civilians and that one of them could end up in the hands of
a disturbed individual. Their other claim was based on what is known as the “predicate
exception,” which holds that gun makers can be sued if they knowingly violate an existing
state or federal law pertaining to the sale or marketing of firearms and that this
transgression is “a proximate cause of the harm for which relief is sought.” Koskoff and
his colleagues claimed that Bushmaster, by selling AR-15-style rifles to the public and
through marketing that highlighted their battlefield capabilities, had run afoul of the
Connecticut Unfair Trade Practices Act, or CUTPA. The predicate-exception argument
seemed innovative, perhaps even audacious. “Reaching for consumer law was a very
creative move,” says Timothy Lytton, a law professor at Georgia State University.
Koskoff filed Soto v. Bushmaster on Dec. 13, 2014, the eve of the second anniversary of the
Sandy Hook massacre and less than 24 hours before the statute of limitations expired. It
was a powerful document (“The numbered paragraphs give it an oddly religious feeling,
like theses nailed to a church door,” Adam Gopnik wrote in The New Yorker). It reviewed
the history of AR-15-style rifles and explained the features that made them so deadly, and
it described the carnage and grief that Lanza caused with the Bushmaster rifle that his
mother — whom he also killed, but with a different rifle — bought for him. The filing
included biographical sketches of the deceased children and teachers. (“He also loved
going out for special breakfasts before school with his dad. On the morning of Dec. 14,
father and son found time to enjoy a sausage-and-egg sandwich, polished off by hot
chocolate.”) Even now, more than a decade later after the shooting, Soto is agonizing to
read.
When Koskoff sued Remington, though, there was considerable doubt in the legal
community about the wisdom of pursuing the gun maker; many of Koskoff’s peers
believed that it was unwinnable and that he was setting up the families for more
heartache. “I got a lot of pushback from other trial lawyers, and honestly, it almost broke
me,” Koskoff says. Some people at his firm wondered if it was a mistake and worried that
the suit would drain resources from other cases. (As is standard, K.K.B. covered the
upfront costs of Soto, including paying expert witnesses, and took a percentage of the
settlement.) Mesner-Hage recalls that there was “legitimate concern that losing this case
would put the firm at significant risk.” The risks included possibly being ordered to cover
Remington’s legal fees. Koskoff had his own doubts right up until the week he filed. A
conversation with his wife, Darcy, finally persuaded him to move ahead. “She asked me
how I thought I’d feel years from now if I didn’t go forward with the case,” he says. It was
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a question that answered itself.
In October 2016, Soto was thrown out by a Connecticut Superior Court judge; she rejected
the negligent-entrustment argument on the grounds that it was legal to sell AR-15-style
rifles and said that the Connecticut Unfair Trade Practices Act had been interpreted to
apply only to individuals who had a direct commercial relationship with a business.
Koskoff appealed the decision. In March 2019, the Connecticut Supreme Court upheld the
dismissal of the negligent-entrustment charge but ruled that a business relationship was
not required to pursue a claim based on CUTPA and that the Sandy Hook plaintiffs had
standing to sue Remington over the marketing (but not the sale) of its AR-15-style rifles.
Even as it allowed Soto to proceed, the court expressed skepticism that a connection
between the gun maker’s advertising and Adam Lanza’s actions could be established.
“Proving such a causal link at trial may prove to be a herculean task,” the majority wrote.
President Barack Obama makes a statement on gun violence. Family members of some of
the Newtown, Conn. shooting victims stand to his side. Win McNamee/Getty Images
Remington appealed to the U.S. Supreme Court, which declined to hear the case (not
necessarily because it agreed with the Connecticut Supreme Court — one possible
explanation is that, with no conflicting lower-court interpretations of PLCAA and the
predicate exception, the court had little reason at that point to intervene). In 2021, after
Remington declared bankruptcy, its insurers offered the families a $33 million settlement.
They turned down the deal in part because it didn’t give them the right to disclose all of
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the evidence collected during discovery. Some time later, the insurers came back with
another offer, this one for $73 million and consent to make those materials public, and the
families agreed to settle.
The information gathered through discovery has not been released yet. But Koskoff
shared two documents with me. One was the transcript of a deposition that he took of
George Kollitides II, who from 2012 to 2015 served as chairman and chief executive of the
conglomerate that included Remington and Bushmaster; it was called Freedom Group
when he started, and was subsequently renamed Remington Outdoor Company. The
deposition was conducted in November 2021. At one point, Koskoff asked Kollitides, “If
there was a shooting every single day using a Bushmaster AR-15-type rifle that was
manufactured and sold by Freedom Group, would it still be full steam ahead for you, or at
some point would you say, you know, maybe we don’t need to market and sell these
things?” Kollitides replied, “It would be full steam ahead.” Koskoff also asked, “Is it your
testimony that in the wake of the Sandy Hook shooting while you were C.E.O., your
approach to business in this space didn’t change at all, that it was the same after the
shooting as it was before?” In response, Kollitides said, “100 percent.”
The other document that Koskoff showed me was the minutes of a board meeting that the
company held on Dec. 20, 2012, six days after Sandy Hook. According to the minutes,
Kollitides “noted that year-end sales continued to be strong in the wake of the tragedy.”
He said that the company “had hired crisis advisers” who could “assist in managing the
public relations and various other issues” it was facing as a result of the shooting. The
board then moved on to discuss the proposed acquisition of a Montana gun-barrel
manufacturer; another Remington executive told the board that the deal would “greatly
enhance the company’s capacity in the high-margin M.S.R. market.” (M.S.R. stands for
“modern sporting rifle,” a gun-industry category that includes AR-15-style rifles.)
Koskoff says that when all of the evidence from discovery is made public, it “will provide
a depth of understanding as to what goes on behind closed doors with the gun industry.”
The decision of the insurance companies to settle infuriated the gun lobby. Lawrence
Keane, senior vice president and general counsel of the National Shooting Sports
Foundation, insists there was no evidence that advertising was a factor and thinks that
Remington would ultimately have won in court. “I believe that had the case gone to trial,
Remington would have prevailed,” Keane says. Koskoff disagrees. He is confident that he
could have persuaded a jury to see a link between the marketing of the gun and the crime
it was used to commit. Nevertheless, Koskoff was happy that the families were spared the
strain of a trial, especially in light of the distress that the Alex Jones case was causing
them, and with Soto settled, he figured he would get back to focusing on medical-
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malpractice and personal-injury cases. But then, in a span of around seven weeks, there
were mass shootings in Buffalo, Uvalde and Highland Park, and families in all three cases
turned to Koskoff.
Although AR-15-style rifles have been sold commercially since the 1960s, for a long time
there was barely a market for them. In 1990, they accounted for just 1.2 percent of all
firearms manufactured in the United States. But starting in the mid-2000s, after the
assault weapons ban expired, their appeal grew. The wars in Afghanistan and Iraq gave
AR-15-style rifles a certain cachet — people wanted the same guns the soldiers were
using. The spike in sales was also influenced by politics, including the election of the
country’s first Black president. Concerns about new gun-control measures, coupled with
fears about where the country was heading, caused a surge in demand. According to a
recent poll commissioned by The Washington Post, about one in 20 Americans now own
an AR-15-style rifle. The Post cited a gun-industry estimate that there are currently
around 20 million AR-15-style rifles in private hands, although that number was not
confirmed independently. They have become so popular that they are often referred to
these days as “America’s rifle.” Representative Barry Moore, an Alabama Republican,
recently introduced legislation to designate the AR-15 “the national gun of the United
States.” Some Congressional Republicans have taken to wearing AR-15 lapel pins.
AR-15-style rifles have been involved in some of the worst mass shootings that the United
States has experienced over the last decade or so, including those in Las Vegas; Orlando;
Sutherland Springs, Texas; Parkland, Fla.; and San Bernardino, Calif. In the view of
Koskoff and others, the firearms industry bears considerable blame for this — not only
because it continues to sell AR-15-style rifles but also because gun advertising has
become increasingly provocative. Many ads for AR-15-style rifles play up their lethality,
even glamorize it. A lot of the marketing seems directed at one group in particular: young
men. Masculinity is a common theme, as are appeals to male grievance. In 2012, a few
months before Sandy Hook, Bushmaster published an ad in the men’s magazine Maxim
that featured a picture of an AR-15-style rifle with the caption, “Consider your man card
reissued.” Gun makers have also cultivated buyers through popular first-person shooter
games like the Call of Duty franchise that showcase their AR-15-style weapons (the
virtual versions look identical to their real counterparts and sometimes sport the brand
names). Adam Lanza reportedly played Call of Duty games obsessively. Gun companies,
Timothy Lytton says, are “marketing semiautomatic rifles to young people in the form of
fantasy games that deliver the experience of shooting to kill as a form of entertainment.”
Daniel Defense, a Georgia firearms manufacturer, has generated particular controversy

with its marketing. One ad, which was posted on the company’s Twitter account a few
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months before Robert Crimo III began shooting people from a Highland Park rooftop,
displayed a rifle mounted on top of a building, with the lights of a city or town visible
below; an adjoining photo showed the view through the gun’s sight — it was of a parked
vehicle. The caption read, “Rooftop ready, even at midnight! 🌚” The gun maker has also
been accused of deploying racist imagery: A few years ago, its catalog included a picture
of a man with a Valknot tattoo; the Valknot is a Norse symbol embraced by white
supremacists.
A recent congressional report said that Daniel Defense’s annual revenues from sales of
AR-15-style rifles tripled between 2019 and 2021, to over $120 million from $40 million. A
Daniel Defense DDM4 V7, an AR-15-style semiautomatic weapon, was used in the
shooting last May at Robb Elementary School in Uvalde, which left 19 fourth graders and
two teachers dead. According to a report commissioned by the Texas House of
Representatives, the teenage gunman, Salvador Ramos, a former student at Robb
Elementary, purchased the rifle for around $2,000 shortly after his 18th birthday. (Daniel
Defense did not respond to a request for comment. In congressional testimony last year,
Marty Daniel, the company’s founder and at the time its chief executive, denied any
responsibility for Uvalde, saying, “These murders are local problems that have to be
solved locally.”)
The Texas House report also included personal details about Ramos, who was killed by
law-enforcement officers after they entered the school. A native of Uvalde, he came from
a broken home, spoke with a stutter and had been bullied by classmates. When he was 17,
he was expelled from high school, having only completed ninth grade. In the year that
followed, he went into a spiral. He dressed in black clothes and combat boots and
retreated to the online world — he was active on several social media platforms and also
played violent video games, including the Call of Duty series (in which the Daniel Defense
DDM4 V7 has appeared). “Most of his usernames and even his email address reflected
themes of confrontation and revenge,” the report said. It added that he became fascinated
with the idea of acquiring notoriety and developed an interest in school shootings. Some
of his online peers jokingly nicknamed him “school shooter.”
In the weeks following the Uvalde shooting, Koskoff was retained by the families of three
of the victims (another 14 families have since joined them). It struck him as self-evident
that Daniel Defense had contributed to the tragedy, and possibly in ways that went
beyond its manufacturing of the gun. During one of our conversations, he shared with me
a PowerPoint presentation that included another Daniel Defense ad showing someone
pulling a gun from the trunk of a car. “Refuse to be a victim 🤘,” the ad was captioned. But
the supposed victim was not in a defensive crouch or any other position that would
14 of 22 11/22/23, 12:03 PM
indicate immediate danger. If anything, the body language suggested aggression.
Daniel Defense is already facing lawsuits tied to Uvalde; Everytown for Gun Safety, an
advocacy group that Michael R. Bloomberg helped found, has filed claims on behalf of the
families of two children. “Factually, Uvalde is stronger than even Sandy Hook,” Koskoff
says. But Texas is a gun-friendly state, and persuading a judge or jury to rule against a
firearms company could be difficult. The Soto template might be of limited value, too.
Texas has a law similar to CUTPA, called the Deceptive Trade Practices Act, but
according to Koskoff, it has generally been interpreted quite narrowly: Only people who
actually bought the product in question have standing to sue under the D.T.P.A. Koskoff
concedes that the Texas law “may be more challenging.”
In late May, he went to Uvalde to visit the families he was representing and to gather with
the community as it marked the one-year anniversary of the shooting. When I spoke to
him a few days later, he said the trip had been sobering but left him even more
determined to pursue accountability. He still wasn’t sure, though, when and how he would
proceed. He told me that during the years that he was litigating Soto, he was concerned
only with holding gun makers liable. “For a long time, I felt that any case that involved a
shooting that does not focus on the gun industry is a gift to the gun industry,” he said. But
he had since come to recognize that there was an entire ecosystem that facilitated the
industry’s practices — social media platforms, insurance companies, video-game makers.
While Daniel Defense was, in his view, a bad actor, it had enablers who might bear some
responsibility as well for what happened in Uvalde. “Increasingly, I am thinking more
about these other participating factors,” Koskoff said. “There are other problems here.”
He declined to elaborate, but it appeared that Daniel Defense was not the only potential
target he was eyeing.
By then, he had reluctantly concluded that he couldn’t participate in possible litigation

against any gun makers over the Buffalo shooting, a racially motivated attack that left 10
people dead, all of them targeted because they were African American. The assailant, an
18-year-old named Payton Gendron, had been armed with a Bushmaster XM-15. Koskoff
said there were a couple of reasons for his decision, but with other lawyers pursuing
cases tied to the gun, he didn’t want to comment further. It was easy to speculate about
what might have given him pause. Gendron, who was sentenced to life in prison earlier
this year, published a lengthy manifesto in which he disparaged the weapon he used to
carry out his crime. “In all honesty,” he wrote, “this is probably the worst AR-15 I could’ve
bought for this mission.” That comment would surely be cited by a defense lawyer. Also,
the gun was apparently quite old, and the Remington and Bushmaster brands are now
under new, separate ownerships. It seemed as if it could be an especially complicated
15 of 22 11/22/23, 12:03 PM
case, and I was mindful of a point that Koskoff made during several of our conversations:
In an area of the law as fraught as gun litigation, any setback could imperil the gain that
Soto represents.
16 of 22 11/22/23, 12:03 PM
A chart in Koskoff’s office that he used as he constructed his suit against the gun maker
Remington following the Sandy Hook shooting. Thea Traff for The New York Times
17 of 22 11/22/23, 12:03 PM
A few months ago, after a shooting at a Nashville private school that left three children
and three adults dead — an AR-15-style rifle was one of the weapons used — the former
Senate majority leader Bill Frist, a Republican from Tennessee, wrote a column for
Forbes in which he proposed some measures to help curb gun violence. He called for
reintroducing a ban on assault weapons, which was notable because the previous ban
expired while he was the Republican leader in the Senate. In addition, Frist said that it
was time to “make gun makers liable for harm caused by their products,” adding that
“right now, the firearms industry bears no liability for shootings, and thus has no financial
incentive to make their products safer.” Given that he was the Senate majority leader
when PLCAA was enacted, this seemed to mark a significant reversal on his part. Frist
didn’t make himself available to me for an interview, but what he wrote suggests that he
now believes either that the law was a mistake or that it went too far.
President Biden has called on Congress to repeal PLCAA; during a Rose Garden
ceremony in 2021, he said that if God could grant him any item on his gun-control wish
list, “give me that one.” But while congressional Democrats have introduced bills seeking
to rescind the law, there seems little chance of that happening anytime soon. Still, Soto
punctured the idea that PLCAA completely shielded the gun industry from liability, and it
is not just victims of mass shootings who are seeking to capitalize on this possible
opening. A handful of states, including New York, New Jersey, California and Illinois,
have recently enacted public-nuisance laws that are intended to allow litigants to bring
claims against gun makers via the predicate exception in PLCAA. The city of Buffalo is
now suing several gun makers using the New York statute. (Ten states and the District of
Columbia have assault-weapon bans.)
The National Shooting Sports Foundation is challenging the new laws in federal court. (In
September, a federal judge dismissed its bid to overturn Delaware’s public-nuisance law,
passed in 2022.) Lawrence Keane of the N.S.S.F. says the legislation and lawsuits inspired
by Soto amount to an effort to thwart the expressed will of Congress. The point of PLCAA,
he says, was to protect gun manufacturers from being sued over criminal activities for
which they could in no plausible way be blamed; if, as a result of Soto, gun companies are
now swamped with lawsuits, the predicate exception will have become “the exception
that swallows the rule,” as Keane puts it. He claims that the Connecticut Supreme Court
erred in allowing Soto to go forward and suggests that it mistakenly conflated marketing
and advertising. Keane says they are not the same thing and that, in the context of the
predicate exception, “marketing” referred to sales and distribution practices, not
advertising. He adds that advertising, however distasteful one might find it, is protected
speech.
18 of 22 11/22/23, 12:03 PM
He denies that the N.S.S.F., in contesting the public-nuisance laws, is trying to engineer a
so-called circuit split that might induce the Supreme Court to step in. But if there are
enough conflicting lower-court rulings, it is hard to imagine that the court won’t feel
compelled to decide whether the legal strategy promulgated by Soto is anchored in a
legitimate reading of the predicate exception. “Whether violation of a generic unfair-
trade-practices act or a public-nuisance law can serve as a basis for evading PLCAA
immunity remains an open question that must, ultimately, be decided by the U.S.
Supreme Court,” Timothy Lytton says.
According to Heidi Li Feldman of Georgetown Law, Soto also raises a more fundamental
question: “What is the meaning of the Second Amendment, and what does that have to
do, if anything, with holding gun manufacturers accountable for violating statutes that
apply to other businesses?” She says that litigation is an integral part of regulating
commerce and rejects the idea that the gun industry is somehow entitled to special
treatment. “Sensible regulation of gun marketing and manufacturing has nothing to do
with the Second Amendment,” Feldman says. But she acknowledges that federal courts
are taking an “unprecedentedly expansive reading of the Second Amendment” and warns
that Soto could end up boomeranging on gun-control advocates. Adam Winkler, of
U.C.L.A., agrees. He notes that the current Supreme Court is “very pro-gun” and “likely to
believe that firearms manufacturing is part of the Second Amendment.” He says this is a
defensible proposition in itself — the right to bear arms is meaningless if you don’t have
people producing arms. But he thinks that the Supreme Court could well decide that the
firearms industry merits even more protection precisely because its existence is essential
to the exercise of Second Amendment rights.
Nevertheless, a Supreme Court ruling on PLCAA and the predicate exception probably
won’t be forthcoming anytime soon, and Winkler says that Soto has perhaps created a
“backchannel way to encourage gun makers to be more responsible.” Ryan Busse, while
deeply alarmed by the direction of American gun culture, also believes Soto could make a
difference. He says the case didn’t prompt gun manufacturers to alter their conduct
because it never went to trial and was only settled, in their view, because the timorous
insurers didn’t have the stomach for a fight. But he thinks that if even just one lawsuit
inspired by the Sandy Hook litigation reaches a jury and results in a sizable judgment
against a gun company, it would force the entire industry to at least dial back its
advertising. “It might be $74 million, it might be $740 million,” Busse says. “One case
would stop all of it.” And more cases are coming, says Antonio Romanucci, a trial lawyer
based in Chicago. “These lawsuits are only the beginning,” he told me. “I strongly believe
the gun industry should be doing a deep self-analysis before the courts do it for them.”
19 of 22 11/22/23, 12:03 PM
A cartoon hanging in Koskoff’s office shows an illustration with “Sandy Hook Settlement”
on a person’s sleeve whose finger is plugging up an assault rifle. Thea Traff for The New
20 of 22 11/22/23, 12:03 PM
York Times
Koskoff’s job often involves seeking compensation in matters for which no monetary
award will ever be adequate. While he can put a price on a botched medical procedure
that results in permanent injury, he can’t undo the damage. His work immerses him in
other people’s grief, but he says that the anguish associated with mass shootings was
beyond anything that he had experienced before. The deaths were so sudden and
senseless, and the pain was compounded by the fact that these tragedies played out in the
public eye and by the knowledge that the victims would probably still be alive but for
choices that we have made as a country — the realization, Koskoff says, that “it didn’t
have to happen, and that it doesn’t happen in other places.”
This was part of the reason Eduardo Uvaldo’s death strikes him as so outrageous. Uvaldo
immigrated to the United States from Mexico as a teenager, and as Koskoff sees it, he
embodied the American dream: a hard-working man who built a comfortable life for his
family and who was full of gratitude for the blessings that the United States had conferred
on him. He faithfully attended Highland Park’s Fourth of July parade, often in patriotic
clothes — red, white and blue shorts were a particular favorite. In Koskoff’s view, his
death wasn’t just a tragedy; it represented a kind of betrayal.
When Koskoff first decided to travel to Highland Park in late June to meet with the
Uvaldo family, he was planning to file suit against Smith & Wesson, which manufactured
the AR-15-style rifle used by Robert Crimo, soon thereafter. He and his colleagues had
talked about bringing a case on or around the July 4 anniversary of the shooting. Crimo
was known to be a Call of Duty enthusiast, and Smith & Wesson has run online ads that
evoke the Call of Duty games. Illinois was a solid-blue state with strict gun laws, and it
had a consumer-protection statute similar to the one in Connecticut. With Highland Park,
the facts, the law and the jurisdiction all seemed favorably aligned. By late June, several
lawsuits had already been filed against Smith & Wesson by other victims and their
families. (Romanucci is one of the lawyers involved.)
But on the drive from the airport to meet with Brian Hogan, Koskoff told me that he had
decided to hold off. He thought the complaint his team had drafted was strong but could
be made even more compelling. Some of the information that he was seeking was not yet
available because Crimo, who was taken alive by the police, was the subject of an ongoing
criminal investigation. The Highland Park case had to be as meticulously framed as Soto,
and Koskoff’s inclination was to take as long as necessary, within reason, to get it to that
point. At the same time, he worried that the Uvaldos might be growing impatient.
“There’s always some atmospheric pressure to do things earlier, sooner, now,” he said in a
later conversation. “But you don’t get extra credit for filing early.”
21 of 22 11/22/23, 12:03 PM
After visiting the site of the shooting with Hogan, Koskoff went to Hogan’s house in
Waukegan to meet with Eduardo Uvaldo’s widow, Maria, and his four daughters; Koskoff
was joined by Matthew Sims, a lawyer with the local firm representing the Uvaldos.
Everyone sat at the kitchen table, where the family had put out some fruit as well as
water and soft drinks. Although Koskoff already knew a lot about Eduardo, he asked the
sisters to share recollections of their father. They described him as a joyful man who was
especially devoted to his 13 grandchildren and six great-grandchildren. He was always
“clowning around” with the little ones, they said, and made sure to attend every ballgame
and school event. “There are so many photos of him gazing adoringly at the kids,” said
Nubia, Hogan’s wife. Koskoff asked her to send him some of the pictures. The family
talked about the difficulty of marking Father’s Day in Eduardo’s absence and about the
anxiety that they all felt now in public spaces.
While I was in the room, Koskoff didn’t tell them that he was still not ready to file, but he
intimated as much. He referred to the lawsuits that had already been brought against
Smith & Wesson. He said that one advantage to waiting was that he and his colleagues
could track the progress of other cases and learn from any mistakes the lawyers might
have made. But he also needed time to gather more evidence. “As in Sandy Hook, a
criminal investigation locks up a lot of information that we would like to get,” Koskoff
explained. “And it doesn’t seem fair. We should have access to that information, because it
could impact your legal rights.”
Koskoff had told me in advance that there were things he planned to discuss that could
not be shared with a journalist in the room, and after about 30 minutes, he politely said
that it was time for me to excuse myself. A week later, I caught up with him at his
Bridgeport office. According to Koskoff, the Uvaldos didn’t express any concern or
frustration over the delay in filing; they understood that pursuing Smith & Wesson was
going to be a long and arduous process. “What this trip established is that this family has
the patience of several lifetimes,” Koskoff said. The same had been true of the Sandy
Hook parents. Gun litigation was hard — tactically, emotionally — and Koskoff said that
the determination of these families to pursue accountability despite a legal framework
designed to prevent gun makers from being held liable stiffened his own resolve. “I draw
strength from their strength,” he said.
Michael Steinberger is a contributing writer for the magazine. His last feature was about the Ukrainian
tennis player Elina Svitolina and the impact that the war is having on her sport.
A version of this article appears in print on , Page 30 of the Sunday Magazine with the headline: The Liability Argument
22 of 22 11/22/23, 12:03 PM

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The Lawyer Trying to Hold Gunmakers

“Brian?” Koskoff asked.

While it was believed to be a record settlement in a case involving a firearms

to defend themselves in multiple lawsuits.

a question that answered itself.

Daniel Defense, a Georgia firearms manufacturer, has generated particular controversy

indicate immediate danger. If anything, the body language suggested aggression.

By then, he had reluctantly concluded that he couldn’t participate in possible litigation

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