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From the New York Times, I'm Rachel Abrams, in for Michael, and this is The Daily. As mass shootings continue to plague the United States, the families of victims continue to search for accountability. Now, a pair of lawsuits by the families of victims of the Uvalde school shooting are trying a new tactic. The suits target a popular video game, a gun manufacturer, and Instagram, accusing them of helping to groom and equip the teenage gunmen who committed the massacre. Today, my colleague David Goodman on the Lawsuits and the lawyer behind them. It's Tuesday, June 18th. So David, after a shooting, people are always looking around for who to blame. They ask questions about, how did this person get a gun? Could anything have been done to prevent this? Should anything have been done to prevent this? Now we've got these two new lawsuits that are filed by the families of victims in the Uvalde shooting, and they're pointing the finger in a pretty interesting direction. Tell me about those.

After all of these shootings, what we have is people from the right and from the left going to their different camps. On the Democratic side, there are calls for greater gun control, background checks, other types of policies that could be put into place to limit the access to guns. On the Republican side, it's who is this person and what mental health challenges are particular to this person. We've gone through the cycle so many times that it's really become just almost like an American tradition for us now. But recently, there have been actually some efforts to try and broaden the scope of who might be legally accountable for these shootings. I want to get you now to Uvalde, Texas. Families of victims of the Rob Elementary school shooting are making an announcement.

You can say a lot of things about the law enforcement response in this case. But one thing you can't say is that they caused this shooting.

Families of Uvalde shooting victims filed lawsuits against companies they say bear responsibility for products used by the gunmen. What's happening here is we have these two new lawsuits filed by the families of most of the victims of the Uvaldi Massacre.

Lawsuits have now been filed against three companies, Meta platforms, which owns Instagram.

The video game company, Activision, which makes the popular game Call of Duty, and Daniel Defense, which made the AR-15 style rifle used in the massacre. That accuse a video game company and one of the biggest social media platforms and a gun manufacturer of essentially grooming the gunmen. These are really some of the most far-reaching to be filed yet in response to these escalating number of mass shootings in the US. They're really the brainchild of this one lawyer. Hello.

Hi, guys. Can you hear me?

Yeah. How are you? Good.

Hi, David. How are you?

Tell me about this lawyer.

Well, his name is Josh Kaskoff. He's 57 years old. He's based in Connecticut. For most of his career practicing law, he's been a medical malpractice attorney, a personal injury attorney.

The way I got into the gun litigation was really by a total accident and happenstance.

He really had no experience trying gun cases at all.

How does he actually go from making the leap to representing some of the families He's here.

Well, the way he makes this transition starts well before Evaldi, basically 10 years earlier.

Well, I'm about 20 miles from Sandy Hook.

It starts with this school shooting at Sandy Hook. He essentially gets involved by accident. Tell me how you got approached about the Sandy Hook case.

I was getting a ride to the airport, and the driver asked me what I did for a living, and I told him that I was a lawyer. He said, Oh, really? Boy, do I have a friend who really needs a lawyer? He said that his friend had just lost a child at Sandy Hook.

He had a conversation with a cab driver who ended up connecting him with one of the Sandy Hook families.

At the time, I wasn't I was simply thinking about a lawsuit. I was simply thinking about, could I help these people get through probate? Could I help them manage the press, which was all of that?

He's been a medical malpractice attorney. He can help in terms of the basic law after someone's lost someone.

But I started to get to know these families, and I started to see tremendous shattering loss, which left them looking for answers.

As he's trying to figure out this strategy, he comes across photos of the crime scene that the police have released.

I saw a photograph of the weapon on the floor of this classroom, and I just asked the question, How did it get here? That began a long odyssey of not trying to- So he starts to think about the kinds of liability that might exist here.

And as he starts looking into this- I knew nothing about guns as a product, and I knew even less about gun litigation.

I didn't know anything about the law of guns. I just assumed you could sue a gun company for being negligent. I thought you could sue them for selling a product that was unreasonably dangerous.

His assumption is that like any legal action, you can hold a company liable for the way that their product is used or misused.

Only to learn that actually this industry is uniquely protected by the federal government.

He ends up discovering that there's this 2005 law, the protection of lawful commerce in Arms Act, often referred to as PLACA.

I read one case and I thought, What is this? Plcaa. I looked it up and I read the statute, and I genuinely thought it was not constitutional.

What this law does is really give armsmakers, gun manufacturers, a broad set of protections against being sued for the way their weapons are used to cause harm, the harm that occurs all time in this country. Most lawyers come to the conclusion that this all but slams the door shut on the courts when it comes to bringing illegal cases against gun makers for these mass shootings.

Worst of all, the gun industry was perceiving it as an absolute immunity. The perception of being immune from civil liability and having to pay damages for harms or deaths that are created when you sell guns is a very dangerous risk perception.

Okay, so Kaskoff is considering suing the company that made this gun that was used in Sandy Hook, and he runs up against this wall of protection that's unique to the gun industry, Plaka, which does this make him think twice?

Well, not exactly. He didn't really even know enough to have that attitude. He felt like this was the right thing to do, and he was going to keep going with it. So what What he ends up doing with this case is taking advantage of an exception to the federal law. The law is the protection of lawful commerce in Arms Act. What he correctly notices is that it does not protect unlawful commerce. What he tries to do is prove that the company in the Sandy Hook shooting, Remington, has done illegal marketing, has essentially violated a Connecticut consumer law.

Okay, so basically he's arguing, Hey, Remington broke this other law, so they should not be protected by plaka. Right. And does that work?

It does. One of the things that he points to is that these advertisements that were aimed at regular people that played up the guns military connections. In their combat readiness. He basically argues that this was an unlawful promotion because in the military, guns are used to wage war and kill people. I mean, there's a lot of legal back and forth, but eventually, the suit survives the company's attempts to get it thrown out, which in and of itself is really a remarkable feat. Then they go into this phase where the company has to turn over documents as part of the lawsuit.

It's as if they were selling widgets, but they're talking about AR-15. What they're trying to do in this time period of the Sandy Hook shooting was they're trying to reach and expand the AR-15 market to target youth as potential future customers. They call the target an end user.

What he's able to see in these documents that are turned over are internal company discussions about marketing weapons. He sees that this company is trying very hard to reach a younger audience.

We see in the documentation questions like, what problems do they have? Is it a man, a woman, or a kid? Who are we trying to reach?

Why does he think they need to reach this younger audience?

Because they need to win that audience to sell their products. This This is like any other item in a market that's very competitive. In order to get new customers, you need to go get them when they're young. You need to develop a brand loyalty early on.

We saw this effort reflected in the documentation that we were able to obtain. There were very intentional efforts to reach these kids through Call of Duty.

In fact, the records show that Remington, the gun manufacturer, had actually made a deal with Activision, the makers of Call of Duty, to get one of their products featured in the game. It was widely reported that the Sandy Hook shooter was an avid player of Call of Duty.

Oh, wow. Interesting. How did they actually make use of that information in court?

At this point, all that information is really locked up in the lawsuit. It won't be made public until the trial. But before that ever happens, the company Remington is in financial trouble and is essentially bankrupt. Its insurers are the ones negotiating with the lawyers at this point, and they agree to settlement to end this lawsuit.

Does that mean they won?

Well, it's a win for the families. They got $73 million.

In a free market where corporate conduct is often motivated by greed and people lose their moral compass, the only way to correct that conduct and to protect the public is by hitting them in the pocketbook.

I mean, this was the biggest settlement by a gun manufacturer for a mass shooting that we've yet seen. But he didn't actually test these arguments at trial. So there was never a final verdict on the arguments that he was putting forth. After the settlement happens, he really felt like this was the end for him with these kinds of cases.

I didn't know that I would be the, quote, mass shooting lawyer, unquote. It was something I never anticipated.

But then, just a few months later, after they settled this Sandy Hook case, A gunman walks in to Rob Elementary School in Uvalde, Texas.

And Uvalde was like Sandy Hook 2.0 with even more outrageous facts.

And the shooting there is really eerily similar in its details.

And I just felt when I was contacted by these families that I can't turn my back on this. I knew it was my obligation to do it.

So So, Kaskoff gets involved in Uvaldi.

It had been pretty much widely reported early on that he acquired the Daniel Defense AR-15 effectively from the day he turned 18.

And as he starts to dig into the case, what stands out to him is the timing.

So that told me that this company had been targeting this kid for years.

And he's pretty convinced he can draw a direct line between the marketing scheme and the shooter and really expand on this strategy that he'd pioneered with Sandy Hook.

What makes him say that? How is he so sure?

Well, part of the reason he feels this way is that he says he has access to information that's actually coming from the shooter's phone. Now, to be clear, this is something that I haven't actually seen myself. But Kaskoff, in writing his complaint, what he does with that is construct this really vivid timeline that he says explains the crux of the matter here. How did a impoverished teenager from a small town in rural Texas become so enamored with this pretty expensive rifle that he would be so primed to purchase it that he would do so really minutes after he was legally able to.

What does Kaskoff actually learn from looking at the shooter's phone, and what timeline is he able to construct from that?

Okay, well, according to the complaint, in November of 2021, which is several months before the shooting, the shooter here downloads Call of Duty: Modern Warfare. He's downloaded the game before, a different version of the game. But what's unique about this version of the game is that the title page, so the loading screen that comes up when you first start playing the game, features a character really all decked out in body armor. They're carrying an AR-15 style rifle with this special site on it, a special scope. This is a weapon made by Daniel Defense. It's the DD M4 V7 model, which is exactly the rifle used by the shooter in Evaldi. He's exposed to this weapon at that point. We don't know if it's the first time he's seen it, but certainly after that moment, he begins to research on his phone this particular rifle, this very niche weapon.

Why this weapon? All these weapons do the same thing. They all function exactly the same, and they all offer the same ability to kill.

These guns are not the cheapest focused on the market.

There was something about this small company from Georgia that spoke to this kid.

You can see that shortly after downloading this game, he begins to research Daniel Defense and research this particular weapon. The Daniel Defense website becomes one of these frequently visited sites on his browser of this phone that Kostakov says he has access to. The shooter begins saving money from his low-wage job to buy this high-end weapon. According to the complaint, about a month before Before the shooting at Rob Elementary, the shooter creates an account on the Daniel Defense website.

He puts the Daniel Defense rifle in his cart, like many of us have done with other items.

And soon after, this is in April of 2022, While the shooter is still 17, he puts this particular weapon, the DD M4 V7, into his cart on the website. And the complaint alleges what the company does at that point is send him an email.

And they do what every other company does in the online marketplace, they say, Hey, are you still interested in buying that Daniel Defense rifle because we're still more than happy to sell it to you?

Now, this is one of these alerts that says, Hey, we saw you put something in your cart. Do you still want to buy it? But he's not allowed to buy it at that moment because he's still 17.

All they have to do is buy their time to get what they really want from him, which is his credit card.

He's so eager for that moment to come. He's apparently googling how many days it will be. He then goes on a counter to figure it out. The day he turns 18, he's on that Daniel Defense website.

That happens when he is 18 years and 23 minutes old.

Just minutes after midnight. Wow. 23 minutes after turning 18, he gets confirmation that he has purchased it, this roughly $2,000 rifle.

It was clearly proof positive of a successful marketing campaign. Remember, their goal is to sell this kid an AR-15 as soon as possible to beat out their competition. They have successfully hooked this kid with this engagement of a sale.

And eight days later, he walks in to Rob Elementary School with that rifle and opens fire.

We'll be right back.

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David, just to recap, KOSCOP is examining the sale of this gun to the Uvalde shooter, and it seems like that email from the gunmaker is important. But these are the kinds of emails that I get all the time when I'm buying something online, like a coffee maker or a pair of shoes or something. So help me understand why it's important and significant here.

Well, for KOSCOP, this push email is pretty important piece of evidence that really allows him to make the argument that Daniel Defense is offering to sell a weapon to a miner. That would be a violation of Texas law.

Right. If he can successfully argue that they violated state law, he can get around Plaka. To then bring a lawsuit against the gun manufacturer for this mass shooting.

That's right.

But Daniel Defense isn't the only company being sued here. You would also mention the companies behind Call of Duty and Instagram. Tell me how Kostcoff thinks that those companies are involved.

Right. So, Kaskoff has actually filed another lawsuit in California, and that's the one that names Activision, the publisher of Call of Duty, and Metta, the parent company for Instagram. And that lawsuit is about holding those companies liable for essentially helping promote the weapons that are used in mass shootings to vulnerable children. I mean, Daniel Defense is, remember, a niche company. They have less than 1% of the market share for these types of weapons. And his argument is that they wouldn't have been able to reach this kid without the help of these other companies. What he says is that it really took these three prongs, the gun manufacturer, the video game company, and the social media company, to groom this Evaldi shooter, to get him primed to want this weapon.

What is he basing that off of? Is it just the appearance of the gun on the loading page of the game?

Well, in the case of Call of Duty, that is evidence of a connection that he sees between the two companies. That that thing doesn't happen just by accident.

Okay, so Kaskoff's argument is that there's this three-prong marketing strategy, and he's saying that the gun manufacturer needs these two companies to capture a younger audience. Let's talk more about his arguments around those two companies, starting with Activision, the publisher of Call of Duty.

Kaskoff says that he's trying to make the link between the Daniel Defense gun and Activision. But beyond that, he's making a broader argument for how the game Call of Duty actually is really a key part of this ecosystem, he would say, that can shape a person like this, Evalueda shooter. And what his argument is, is that Call of Duty is a first-person shooter game. It's incredibly popular. It's really this extremely immersive experience. For Kaskoff, this is important. This is a very important point.

Video games have always had an addictive quality, but they have never had the 360-degree immersion of a Call of Duty. It uses the reward system system of an addictive game, and very much is a training simulation that is so realistic that it allows the user to experience the actual recoil of the weapon, the chaos of killing, and to be habituated to it.

He argues it's more like a simulator and less like a game. That is really giving players the experience of killing. It's a practice for eventually essentially doing the thing.

It is too facile to say video games don't cause violence when a lot of those studies are based on generic video games of yesteryear.

What Kostcoff argues basically is that the studies out there don't really account for this, that they're about video games in the past, that essentially these conversations that we've had about violence in video games, these are outdated. In some sense, it's true that there haven't been robust studies on the impacts of newer versions of Call of Duty, for example, or how it might influence behavior. But this has been an area that's been studied for a while, including recently. There hasn't been this exact connection that he wants to say exists between increasing levels of realism and violence. It's also important to note that at the same time, experts really do say that gun violence is more tied to gun access than it is to violent video games.

I mean, that What is a really striking argument, though, the idea that a game could train you to use a specific type of weapon. I mean, aren't these two experiences, playing a video game and using a gun in real life, really quite different?

Well, one of the things to know about the shooter in the Evaldi Massacre is that prior to going to that elementary school and opening fire, by all reports that we have, he had never fired a weapon before. But he had shot for many, many hours, countless hours, guns within the world of Call of Duty. In fact, one of the things that Kaskoff argues in the complaint, and he has information from the phone and other internet activity to back this up, he claims, is that he was very, very good and got lots of positive feedback from the game to indicate that he had really excelled at it. Kaskoff is quick to point out, and he does so in the complaint, that this shooter and the one in Sandy Hook were not the only ones to play Call of Duty. You also had the El Paso Walmart shooter, the one in Highland Park, Illinois. They were also avid, apparently, players of this game, according to public reports.

But couldn't it just be that people who are more likely to commit mass shootings also enjoy playing these types of violent games? I feel like we've been having this debate forever about whether violent video games increase actual real-world violence. Is the argument he's making that the game causes the behavior just a little bit of a stretch?

Yeah, I think if that was the only argument that he was making, it probably really would be a stretch. We would be back in this decades-long debate over violence in video games and whether you can connect the two. But what he's really arguing here is not so much that the game caused this action, but that it's an addictive platform that's part of this larger ecosystem that allows the gun manufacturer to reach teenagers, and that this whole ecosystem is essentially facilitating violence.

So Kaskoff is saying, Hey, Call of Duty is in a league of its in terms of its addictiveness and its ability to influence its users. He's also making this argument that the game is connecting these young, sometimes troubled people like the shooter with this niche AR-15 style rifle. That therefore, Call of Duty and its maker, Activision, are at least partially responsible for the Uvalde shooting. What did they actually say in response to that accusation?

Well, as to whether they have an actual formal marketing agreement with Daniel Defense, they comment on that, and they didn't want to address the specifics of the lawsuit. They did give me a more general response, acknowledging the pain and the horror of the Uvalde shooting, but also saying, Academic and scientific research continues to show that there is no causal link between video games and gun violence. As a company points out there, it is a tiny fraction of people that play video games that are violent and go on to commit real-world violence. There are millions and millions of others who have been playing this game for years all across the United States and haven't done anything like that. At the same time, there's been many other mass shooters that were not connected to the game.

We've talked about prongs one and two, which are the gun manufacturer and the video game. Tell me about the third prong, which in this case is Instagram. Specifically, what is the legal logic behind blaming them?

Kaskoff says that Instagram is key because of how easily gun content can reach young people on the platform, that young people are able to sign up, even those who are younger than they're technically allowed to, get on the platform, and that this essentially allows for an unregulated or unmitigated connection between gun marketers, gun manufacturers, and teenage viewers of Instagram. Even though the social media platform doesn't actually allow these sponsored ads, you're not allowed as a gun manufacturer, to advertise on the platform, what you can do is have They can have their own posts. One of the things that Kaskoff is arguing here is that because these companies have felt like they had a federal shield around them that protected them, they've allowed their marketing efforts, some of them anyway, to get pretty extreme. The complaint calls attention to posts from Daniel Defense, including one where they show off a weapon set up and describe it as, quote, totally murdered out. There's another one that shows a view through a rifle scope, looking down from a rooftop, and it's in an urban setting, and there's a windshield of a parked car that's in the crosshairs. The caption reads, Roof top ready, even at midnight.

Wow. Targeting someone in a car with your weapon, it's almost by definition an aggressive use of that weapon. It's something that they were marketing. They were marketing this weapon as something that you might use in these situations. These are posts that the Kaskoff argues have gotten increasingly extreme because there's essentially the belief that there's nothing reigning them in, that the law protected them, and that at the same time there was actually market share to be gained by selling this violence.

Okay, but do we know that the Uvalde shooter even saw some of the content on Instagram that we're talking about?

No, we don't know that. I mean, it's not clear, at least from what's in the complaint that he did. What the The point says, and this is from cell phone data that Kaskoff says he has, is that the shooter was an avid user of Instagram, that he had at least 20 accounts. We know he was searching for the gun, at least according to Kaskoff's description of what was on his phone, and that he was on the Daniel Defense website. But it's still an open question as to whether he would have been shown this Daniel Defense content because of his activities on that website.

Right. This seems like a hard argument that Instagram should be held liable for something that Daniel Defense or influencers or whoever were posting.

Right. It is a big challenge for them in this lawsuit, against Metta, at least. That's because of a law that's broadly known as Section 230 that really protects these platforms from the content that people post on the site. It's very difficult for someone to come along and sue Instagram because of that content. It's somewhat akin, actually, to the gun context with that 2005 law, Plaka. It's a legal hurdle that many people have thought makes these kinds of suits, not impossible, but very, very difficult. Kaskoff is pushing on that wall in the same way that he's been pushing on the Plaka wall in the gun context. And what makes these suits novel and surprising is he went from trying to force open one door while also pushing on another very difficult door. And so he's really doubled his difficulty with these suits. But he believes that, as we've discussed, the evidence in this case is striking enough that it makes it plausible.

What is Metta saying in response?

Well, Metta has not said anything about this lawsuit. In fact, I followed up, and they don't have a public comment about it.

David, all of these arguments seem extremely extremely difficult to make. How likely is it that these cases actually go anywhere?

Well, I think at this point, it's pretty hard to say, but there's a lot of hurdles standing in his way in both cases. He's not just going after a gun manufacturer. He's going after one of the biggest social media companies and a huge video game company, which just happens to be owned by Microsoft. So this case could get thrown out in the initial process. He may lose if he ever gets to trial at that point. But what Kaskoff is trying to do here, and what other lawyers I talked to said, is to really try and shift the conversation away from the person and also away from the gun to looking at what is the culture that surrounds these kids. There is a sense in, I think, America right now that there is something off around social media use and teenagers. I asked Kostkow about this. His lawsuit is hitting at a time when there's broad discussion of the potential harms of social media. But I think what he's been able to do in this suit is reframe some of those arguments around very specific data from this one shooter's online activities and really paint a picture of how these three prongs came together to create one shooter and possibly allow the family some way to get accountability and actually hold someone liable for the shooting that really isn't available through any other means.

For KOSCF, just doing that is worth trying.

David, thank you very much.

Thank you, Rachel.

We'll be right back.

This podcast is supported by Metta. Instagram has family tools that help your family have a safer, healthier experience on the app. When teenagers set up their Instagram profile, default private accounts ensure that what they post stays private to them and their followers. Selecting a daily time limit helps your teenager keep healthy habits on the app. And by setting up supervision together, you gain more insight into who they're following. Learn more about these and other family tools at Instagram.

Com/familytools. Here's what else you need to know today. Russian President Vladimir Putin is visiting North Korea. Putin is expected to ask North Korean leader Kim Jong Un for more weapons for Russia's war with Ukraine. This will be the second meeting between the two men in the last nine months, a sign of Russia and North Korea's deepening military ties. And on Monday, Maryland Governor Westmore pardoned about 100,000 people for low-level marijuana offenses like possession. The The move comes as more and more states are legalizing marijuana and pardoning marijuana-related crimes, which criminal justice advocates say disproportionately affect people of color. Maryland's attorney general said about the pardons, Today is about equity. It is about racial justice. Today's episode was produced by Diana Wyn, Olivia Nat, and Sydney Harper. It was edited by Liz O'Balen, and Paige Cawet. Fact-checked by Susan Lee. Contains original music by Dan Powell, Ron Niemistow, Pat McCusker, and Marion Lozano, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Lansberg of WNDY. That's it for The Daily. I'm Rachel Abrams. See you on Thursday, after the holiday.

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