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For two years, 10 families who lost loved ones in the 2012 shootings at Sandy Hook elementary school in Newtown, Connecticut have been working quietly towards something most people thought would never come to pass: taking the manufacturer of the gun that killed their loved ones to trial.

Now, as the United States comes to terms with the massacre in Orlando — the largest mass shooting by a single gunman in United States history — those families are about to find out if their work will pay off.

A year-and-a-half ago, those families filed a lawsuit naming the manufacturer, wholesaler and retailer that built and sold the AR-15 assault rifle Adam Lanza used to kill 26 people, 20 of them children.

On Monday, a judge will hear arguments in the defense’s final effort to have the case thrown out.

Nightclub Shooting Florida

The lawsuit wasn’t supposed to get this far. Thanks to a federal law passed in 2005, gun makers and sellers have broad protections from liability if a gun they make or sell is used in a crime. That law has made it exceptionally difficult for other cases like this one to get any traction.

But Georgetown Law professor Heidi Li Feldman tells Brent Bambury on CBC Radio’s Day 6 that the families and their lawyers have found an ingenious legal approach and that they might just succeed where others have failed.

Building a case against “America’s Gun”

Instead of arguing that someone was negligent in making or selling a gun that was used in the Sandy Hook shootings, the lawsuit argues that it is negligent to sell the now infamous AR-15 assault rifle — dubbed “America’s gun” by the National Rifle Association — to anyone.

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The semi-automatic AR-15 assault rifle and other similar rifles have been used in some of the United States’ worst mass shootings.

“What’s particularly interesting about the plaintiff’s theory of the case,” Feldman tells Bambury, “is that they’re saying contrary to the military, the general public has no training and there are no protocols to control the weapon after it enters the general population, so we have no mechanisms to minimize the dangers of this extremely and particularly dangerous gun.”

Negligent entrustment

The case revolves around the idea of negligent entrustment.

“In plain language, that means carelessly giving someone something dangerous,” says Feldman and compares it to the prospect of a car dealership selling a car to someone who has lost his or her license for driving drunk.

“The idea there,” Feldman says, “is if that buyer then goes out and drunkenly kills someone while driving the car, the dealership would have a particular responsibility because they carelessly entrusted that driver with that car.”

But this case isn’t about one sale or one action resulting from it. It’s trying to make the case that the AR-15 assault rifle is unfit for any civilian at any time and, most crucially, that the manufacturers, wholesalers and sellers know this.

“This is what’s striking about this case,” says Feldman. “They’re saying the gun manufacturer in this case is aware of the unsuitability of the general population having access to this very vicious gun.”

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Anita Busch, who says her cousin was killed in the mass shooting in Aurora, Colorado, attends a vigil following last week’s shooting in Orlando. (David McNew/Reuters)

Long odds, but it might still make a difference

Even if the judge rules the case should go to court, it won’t land there for another two years and there is absolutely no guarantee of victory if it does make it that far.

“They [the defense] will argue they’re just like any other manufacturer,” says Feldman. “They’re going to say ‘We’re no different from anybody else that manufactures a product with the capacity to cause harm. If you make a butcher knife and you sell it to civilians, that doesn’t mean you are doing so in order to make sure civilians are killed.'”

But Feldman says the case could still make a difference, if and when the defense is forced to disclose documents in discovery.

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U.S. President Barack Obama wipes away tears from his eyes as he recalled the 20 first-graders killed in 2012 at Sandy Hook Elementary School while speaking on Jan. 5, 2016. ( Carolyn Kaster/AP)

Parallels with tobacco

“One way to think about this kind of litigation is to compare it to the tort suits that were brought against the tobacco industry,” Feldman tells Bambury. “The way in which recovery was gained from the cigarette makers was by exposing their marketing and promotion practices. The beginning of that was the accumulation of materials through a process of civil discovery.”

So ultimately, even if this case doesn’t succeed, it could lay the groundwork for others yet to come.

“It’s going to be important one way or another,” says Feldman. “If the judge dismisses the case, it will discourage other plaintiffs. If the case proceeds, this could be the beginning of a wave of litigation against gun manufacturers.”

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