A Connecticut judge is hearing arguments today to decide whether the families of the victims of the Sandy Hook school tragedy can sue the maker of the AR-15 rifle that was used in the 2012 massacre.

Judge Barbara Bellis of State Superior Court in Bridgeport heard from lawyers on both sides of the high-profile case. Some of the families of the 26 victims of Adam Lanza’s killing spree at Sandy Hook Elementary School in Newtown are seeking to use an obscure clause in U.S. law to sue the maker of the weapon he used to kill them, the AR-15 rifle.

The defendants are Remington, which makes the Bushmaster AR-15 rifle, and Camfour, the company that distributes it. Also named is Riverview Sales Inc., the now-defunct gun store that sold the weapon to Nancy Lanza in 2010. Her son killed her first on the day of the massacre to obtain access to her AR-15, which he used in the school shooting.

The gunmaker’s lawyer, James Vogts, told the court Monday that the case against Bushmaster is an overreach.

“The plaintiffs are expanding a negligent entrustment action in ways no court in this country has ever recognized,” he told Bellis. The case is trying to make it so “that a product manufacturer two or three steps removed from a retail sale can be held liable,” Vogts added.

Joshua Koskoff of Koskoff, Koskoff & Bieder, the lawyer in charge of the Sandy Hook case, argued the lawsuit is on solid ground, and added that the analogy to the automotive industry is a fair one. 

“An AR-15 is to a firearm what a tank is to a car,” he told the court. “And what happens when automobiles get sued for their instruments being defective? They change, and they make them safer.

“How many massacres will it take until somebody says it’s just not worth it any more.”

Similar lawsuits have fallen short

The families launched their case against the gun companies in December 2014, trying to hold them liable for the bloodshed.

“Because our country cannot come together on the issues of assault rifles, these mass shootings will continue to happen,” said Matthew Soto, the brother of Victoria Soto, a teacher at the school who was gunned down that fateful day.

Similar lawsuits to hold weapons makers liable for damage have fallen short because of a 2005 law that says makers, distributors and sellers of guns cannot be held liable for any damages “resulting from the misuse of their products by others.”

But this suit seeks to get around that law through a loophole in the legislation that negates it if there is deemed to be “negligent entrustment” — a legal term that essentially means there was negligence in selling an inappropriate product to improper customers.

“The theory of negligent entrustment boils down to carelessly putting a dangerous instrument into the hands of someone likely to use it dangerously,”  Heidi Li Feldman, a Georgetown University Law Center, said in an interview.

‘America’s gun’

The AR-15 is similar to the weapons-grade M-16 used by the U.S. army, and the lawyer in charge of the Sandy Hook case argues in legal briefs that the two are weapons of war and thus inappropriate for civilians.

“The AR-15 was engineered to deliver maximum carnage with extreme efficiency,” Koskoff argues in court filings. 

“The AR-15 was designed as a military weapon, but there is one civilian activity in which the AR-15 reigns supreme: mass shootings.”

Recent history backs that up. The AR-15 has been the weapon of choice for domestic mass shootings in recent years, as it was also used in the Aurora movie theatre shooting and the San Bernardino shooting. (It’s believed last week’s slaying of 49 people at a gay-friendly night club in Orlando, Fla., involved a similar weapon — a semi-automatic Sig Sauer MCX.)

The AR-15 is capable of firing hundreds of bullets per minute, but the company’s marketing material is based on the notion of self-defence, and targets male buyers with testosterone-laden imagery.

Ad for the AR-15, rifle used in Orlando, Aurora, Sandy Hook. For him w/o a ‘man card.’ Someone thought & wrote that. pic.twitter.com/j1o9nJbtMM

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“You see references to how this gun can help you get your man down,” Feldman said, adding that the National Rifle Association likes to call the AR-15 “America’s gun.”

Yet “gun manufacturers want to say ‘this is my business, no different from somebody who makes cars,'” Feldman said.

Precedent-setting case

Bellis’s decision on whether the families’ case can proceed to trial in 2018 isn’t expected until later this fall. When court was adjourned Monday, the judge declined to say how long it would take for her to return with her decision.

But just getting this far in court proceedings has control advocates hoping for the moral victory of forcing the companies involved to present evidence such as internal memos — evidence which was crucial in the turning the tide of lawsuits against cigarette makers in favour of the plaintiffs, Feldman said.

“This is an important win for 10 families who have already been through more than most of us could ever imagine,” said Dan Gross, president of the Brady Campaign to Prevent Gun Violence, an anti-gun group named after the White House press secretary who was permanently disabled by a gunshot in the assassination attempt on then-President Ronald Reagan in 1981.

“They deserve their day in court and we are pleased that at least for now they’ll get it, despite the defendants’ best efforts to derail this case,” Gross said.

Feldman says the plaintiffs’ case “is still a long shot,”  but “whichever way it goes, the progress made so far will motivate committed plaintiffs” to come forward with similar lawsuits tied to other shootings.

“If the lawsuit proceeds,” Feldman said, “anyone who makes a gun with those qualities would be worried.”