Brian Hogan was standing in front of a wrought-iron tree bench, head bowed, as Josh Koskoff approached him.
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“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.
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. Credit…Jim Vondruska/Getty Images
While it was believed to be a record settlement in a case involving a firearms 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.
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. 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 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.)
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 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. 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.
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 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 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 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.
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 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-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 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 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 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.
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.
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.”
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.”
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.