Soto v. Bushmaster Firearms International, LLC

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SOTO v. BUSHMASTER FIREARMS INTERNATIONAL, LLC—DISSENT
ROBINSON, J., with whom VERTEFEUILLE and
ELGO, Js., join, dissenting in part. In 2005, Congress
enacted the Protection of Lawful Commerce in Arms
Act (arms act), 15 U.S.C. § 7901 et seq., to preempt
what it had deemed to be frivolous lawsuits against the
firearms industry arising from the proliferation of gun
related deaths resulting from criminal activity in cities
and towns across the country. See 15 U.S.C. § 7901
(2012) (articulating findings and purposes underlying
arms act).1 That preemption is not, however, uncondi-
tional, as there are six exceptions to the definition of
‘‘qualified civil liability action’’ set forth in 15 U.S.C.
§ 7903 (5) (A)2 that narrow the category of cases pro-
scribed by the arms act. See 15 U.S.C. § 7902 (2012).3
One such exception, for ‘‘an action in which a manufac-
turer or seller of a [firearm, ammunition, or component
part] knowingly violated a State or Federal statute appli-
cable to the sale or marketing of the product, and the
violation was a proximate cause of the harm for which
relief is sought’’; 15 U.S.C. § 7903 (5) (A) (iii) (2012);
‘‘has come to be known as the ‘predicate exception,’
because a plaintiff not only must present a cognizable
claim, he or she also must allege a knowing violation
of a ‘predicate statute.’ ’’ Ileto v. Glock, Inc., 565 F.3d
1126, 1132 (9th Cir. 2009), cert. denied, 560 U.S. 924,
130 S. Ct. 3320, 176 L. Ed. 2d 1219 (2010). In part V of
its opinion, the majority concludes that the claims made
by the plaintiffs4 under the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq., which are founded on a theory that wrongful and
unscrupulous advertising by the defendants,5 who man-
ufactured, distributed, and sold the Bushmaster AR-15
rifle, Model XM15-E2S, was a substantial factor in the
criminal activity of the shooter at the Sandy Hook
School on December 14, 2012, are not preempted by
the arms act because CUTPA is a predicate statute for
purposes of the predicate exception. Having considered
the text and legislative history of the arms act, I adopt
a contrary answer to this national question of first
impression, and conclude that the predicate exception
encompasses only those statutes that govern the sale
and marketing of firearms and ammunition specifically,
as opposed to generalized unfair trade practices stat-
utes that, like CUTPA, govern a broad array of commer-
cial activities. Because the distastefulness of a federal
law does not diminish its preemptive effect, I would
affirm the judgment of the trial court striking the plain-
tiff’s complaint in its entirety. Accordingly, I respect-
fully dissent from part V of the majority opinion.
I begin by noting my agreement with the facts, proce-
dural history, and plenary standard of review as stated
by the majority. See, e.g., Byrne v. Avery Center for
Obstetrics & Gynecology, P.C., 314 Conn. 433, 447, 102
A.3d 32 (2014) (‘‘[w]hether state causes of action are
preempted by federal statutes and regulations is a ques-
tion of law over which our review is plenary’’). I also
assume, without deciding, that the majority properly
concludes in part IV D of its opinion that, ‘‘at least
with respect to wrongful advertising claims, personal
injuries alleged to have resulted directly from such
advertisements are cognizable under CUTPA.’’ Accord-
ingly, I now turn to the pivotal question of whether the
predicate exception saves such claims under CUTPA
from preemption by the arms act.
I
GENERAL PRINCIPLES OF PREEMPTION AND
STATUTORY CONSTRUCTION
I recognize that the supremacy clause of the United
States constitution declares that ‘‘the Laws of the United
States . . . shall be the supreme Law of the Land . . .
any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.’’ U.S. Const., art. VI, cl. 2.
‘‘As a consequence, state and local laws are preempted
[when] they conflict with the dictates of federal law,
and must yield to those dictates. . . . Preemption may
be either express or implied, and is compelled whether
Congress’ command is explicitly stated in the statute’s
language or implicitly contained in its structure and
purpose. . . .
‘‘[When] a federal statute expressly preempts state
or local law, analysis of the scope of the [preemption]
statute must begin with its text. . . . And, we must
also start with the assumption that the historic police
powers of the [s]tates [are] not to be superseded . . .
unless that was the clear and manifest purpose of Con-
gress. . . . As such, Congress’ purpose is the ultimate
touchstone of preemption analysis.’’ (Citation omitted;
internal quotation marks omitted.) Modzelewski’s Tow-
ing & Recovery, Inc. v. Commissioner of Motor Vehi-
cles, 322 Conn. 20, 28–29, 139 A.3d 594 (2016), cert.
denied, U.S. , 137 S. Ct. 1396, 197 L. Ed. 2d
554 (2017).
In determining whether Congress intended the arms
act to preempt the CUTPA claims in the present case,
I turn to the principles that govern our ‘‘construction
and application of federal statutes,’’ under which ‘‘prin-
ciples of comity and consistency require us to follow
the plain meaning rule . . . . Moreover, it is well set-
tled that the decisions of [t]he [United States Court of
Appeals for the] Second Circuit . . . carry particularly
persuasive weight in the interpretation of federal stat-
utes by Connecticut state courts.’’ (Internal quotation
marks omitted.) CCT Communications, Inc. v. Zone
Telecom, Inc., 327 Conn. 114, 140, 172 A.3d 1228 (2017);
see also, e.g., Modzelewski’s Towing & Recovery, Inc.
v. Commissioner of Motor Vehicles, supra, 322 Conn. 32.
‘‘Accordingly, our analysis of the federal statutes in
the present case begins with the plain meaning of the
statute. . . . If the text of a statute is ambiguous, then
we must construct an interpretation consistent with the
primary purpose of the statute as a whole. . . . Under
the plain meaning rule, [l]egislative history and other
tools of interpretation may be relied upon only if the
terms of the statute are ambiguous. . . . Thus, our
interpretive process will begin by inquiring whether the
plain language of [each] statute, when given its ordinary,
common meaning . . . is ambiguous.’’ (Citations omit-
ted; internal quotation marks omitted.) Szewczyk v.
Dept. of Social Services, 275 Conn. 464, 476, 881 A.2d
259 (2005). ‘‘The test to determine ambiguity is whether
the statute, when read in context, is susceptible to more
than one reasonable interpretation.’’ (Internal quotation
marks omitted.) State v. Agron, 323 Conn. 629, 634,
148 A.3d 1052 (2016); see also, e.g., United States v.
Peterson, 394 F.3d 98, 105 (2d Cir. 2005); United States
v. Dauray, 215 F.3d 257, 262 (2d Cir. 2000).
If a federal statute is ambiguous, the federal courts
do not consider all extratextual sources to be of equal
value in resolving that ambiguity. Instead, the Second
Circuit first ‘‘turn[s] to canons of statutory construction
for assistance in interpreting the statute. . . . [That
court] resort[s] to legislative history only if, after con-
sulting canons of statutory instruction, the meaning
remains ambiguous.’’ (Citation omitted; internal quota-
tion marks omitted.) United States v. Rowland, 826
F.3d 100, 108 (2d Cir. 2016), cert. denied, U.S. ,
137 S. Ct. 1330, 197 L. Ed. 2d 517 (2017).
Accordingly, I begin with a review of the text of the
relevant provisions of the arms act. The preemption
provision provides that ‘‘[a] qualified civil liability action
may not be brought in any Federal or State court.’’ 15
U.S.C. § 7902 (a) (2012); see also 15 U.S.C. § 7902 (b)
(2012) (‘‘[a] qualified civil liability action that is pending
on October 26, 2005, shall be immediately dismissed by
the court in which the action was brought or is currently
pending’’). The arms act defines a ‘‘qualified civil liabil-
ity action’’ in relevant part as ‘‘a civil action or proceed-
ing . . . brought by any person against a manufacturer
or seller of a qualified product,6 or a trade association,
for damages, punitive damages, injunctive or declara-
tory relief, abatement, restitution, fines, or penalties,
or other relief, resulting from the criminal or unlawful
misuse of a qualified product by the person or a third
party . . . .’’ (Footnote added.) 15 U.S.C. § 7903 (5) (A)
(2012). The arms act then provides six exceptions to the
definition of qualified civil liability action; see footnote
2 of this dissenting opinion; including the predicate
exception, which is defined as ‘‘an action in which a
manufacturer or seller of a qualified product knowingly
violated a State or Federal statute applicable to the sale
or marketing of the product, and the violation was a
proximate cause of the harm for which relief is
sought, including—
‘‘(I) any case in which the manufacturer or seller
knowingly made any false entry in, or failed to make
appropriate entry in, any record required to be kept
under Federal or State law with respect to the qualified
product, or aided, abetted, or conspired with any person
in making any false or fictitious oral or written state-
ment with respect to any fact material to the lawfulness
of the sale or other disposition of a qualified product; or
‘‘(II) any case in which the manufacturer or seller
aided, abetted, or conspired with any other person to
sell or otherwise dispose of a qualified product, know-
ing, or having reasonable cause to believe, that the
actual buyer of the qualified product was prohibited
from possessing or receiving a firearm or ammunition
under subsection (g) or (n) of section 922 of title 18
. . . .’’ 15 U.S.C. § 7903 (5) (A) (iii) (2012).
Resolving whether CUTPA is a state statute ‘‘applica-
ble to the sale or marketing of [firearms]’’; 15 U.S.C.
§ 7903 (5) (A) (iii) (2012); begins with the plain meaning
of the word ‘‘applicable,’’ which Congress did not define
within the arms act. ‘‘In the absence of a definition of
terms in the statute itself, [w]e may presume . . . that
the legislature intended [a word] to have its ordinary
meaning in the English language, as gleaned from the
context of its use. . . . Under such circumstances, it
is appropriate to look to the common understanding
of the term as expressed in a dictionary.’’ (Internal
quotation marks omitted.) Middlebury v. Connecticut
Siting Council, 326 Conn. 40, 49, 161 A.3d 537 (2017).
Merriam Webster’s Collegiate Dictionary defines ‘‘appli-
cable’’ as ‘‘capable of or suitable for being applied:
appropriate.’’ Merriam-Webster’s Collegiate Dictionary
(11th Ed. 2003), p. 60; see id., p. 61 (defining ‘‘appro-
priate’’ as ‘‘especially suitable or compatible’’). Consid-
ering this definition, I agree with the plaintiffs’ argument
that CUTPA reasonably could be deemed ‘‘applicable’’
to the ‘‘sale or marketing of [firearms]’’; 15 U.S.C. § 7903
(5) (A) (iii) (2012); insofar as it is a broad statute that
is ‘‘capable of’’ being applied to that—and nearly every
other—business. The reasonableness of this reading is
bolstered by Congress’ use of the word ‘‘including’’ to
set off its list of example predicate statutes, insofar as
‘‘the word ‘including’ may be used either as a word of
enlargement or of limitation.’’ Wood v. Zoning Board
of Appeals, 258 Conn. 691, 700 n.11, 784 A.2d 354 (2001);
see also, e.g., State v. DeFrancesco, 235 Conn. 426, 435,
668 A.2d 348 (1995) (‘‘ ‘[t]here is some ambiguity con-
cerning whether the word ‘‘including’’ . . . was
intended as a word of limitation . . . or one of enlarge-
ment’ ’’); accord Samantar v. Yousuf, 560 U.S. 305, 317,
130 S. Ct. 2278, 176 L. Ed. 2d 1047 (2010) (stating that
‘‘use of the word ‘include’ can signal that the list that
follows is meant to be illustrative rather than exhaus-
tive,’’ but noting that ‘‘ ‘[a] word may be known by the
company it keeps’ ’’); but see Mahoney v. Lensink, 213
Conn. 548, 569, 569 A.2d 518 (1990) (suggesting that
phrase ‘‘shall include’’ is limiting, but use of word
‘‘include’’ or ‘‘including’’ omitting word ‘‘shall’’ is
intended to be broader, with ‘‘the listed rights . . . a
vehicle for enlargement rather than limitation,’’ given
purpose of statutory patients’ bill of rights).
The defendants’ reading of the predicate exception
is, however, equally reasonable, particularly given the
more technical definition of ‘‘applicable’’ in Black’s Law
Dictionary as it relates to laws or regulations. See
Black’s Law Dictionary (10th Ed. 2014) (defining ‘‘appli-
cable’’ in references to ‘‘a rule, regulation, law, etc.,’’
as ‘‘affecting or relating to a particular person, group,
or situation; having direct relevance’’). The principle of
noscitur a sociis, namely, that the ‘‘meaning of a statu-
tory word may be indicated, controlled or made clear
by the words with which it is associated in the statute’’;
(internal quotation marks omitted) State v. Agron,
supra, 323 Conn. 635–36; allows us to view the example
predicates, which describe statutes specifically applica-
ble to the firearms trade, as cabining the more expan-
sive reading of the word ‘‘applicable.’’ See also, e.g.,
Bilski v. Kappos, 561 U.S. 593, 604, 130 S. Ct. 3218, 177
L. Ed. 2d 792 (2010). Consistent with the two United
States Courts of Appeal that have considered the mean-
ing of the predicate exception; see Ileto v. Glock, Inc.,
supra, 565 F.3d 1133–34; New York v. Beretta U.S.A.
Corp., 524 F.3d 384, 401 (2d Cir. 2008), cert. denied,
556 U.S. 1104, 129 S. Ct. 1579, 173 L. Ed. 2d 675 (2009);
I conclude that there is more than one reasonable read-
ing of the predicate exception, rendering it ambiguous.
I turn, therefore, to extratextual evidence, namely, the
canons of statutory construction and, if necessary, the
legislative history, to answer the question of whether
CUTPA constitutes a predicate statute for purposes of
15 U.S.C. § 7903 (5) (A) (iii).
II
REVIEW OF FEDERAL CIRCUIT COURT PRECEDENT
In determining whether CUTPA is a predicate statute
under the arms act, I do not write on a blank slate. Two
of the United States Circuit Courts of Appeal, including
the Second Circuit that we ordinarily find especially
persuasive in deciding questions of federal law; see,
e.g., CCT Communications, Inc. v. Zone Telecom, Inc.,
supra, 327 Conn. 140; have considered whether state
statutes of general applicability may be predicate
statutes.
In New York v. Beretta U.S.A. Corp., supra, 524 F.3d
389–91, the city of New York claimed that the defen-
dants, certain firearms manufacturers and distributors,
‘‘market[ed] guns to legitimate buyers with the knowl-
edge that those guns [would] be diverted through vari-
ous mechanisms into illegal markets’’ and sought
injunctive relief requiring those defendants ‘‘to take
assorted measures that would effectively inhibit the
flow of firearms into illegal markets.’’ The Second Cir-
cuit considered whether a state criminal public nui-
sance statute; see N.Y. Penal Law § 240.45 (McKinney
2008);7 constituted a predicate statute that would allow
the city’s claim to avoid preemption under the arms
act. New York v. Beretta U.S.A. Corp., supra, 399; see
also id. (‘‘[i]t is not disputed that [the criminal nuisance
statute] is a statute of general applicability that has
never been applied to firearms suppliers for conduct
like that complained of by the [c]ity’’). The city argued
that the predicate exception saved its action ‘‘because
[the criminal nuisance statute] is a statute ‘applicable
to the sale or marketing of [firearms].’ The [defendants]
disagree[d], arguing that the predicate exception was
intended to include statutes that specifically and
expressly regulate the firearms industry.’’ Id.
After engaging in a contextual analysis of the predi-
cate exception and, in particular, the meaning of the
term ‘‘applicable,’’ the Second Circuit concluded that
the predicate exception ‘‘does not encompass’’ the crim-
inal nuisance statute, but ‘‘does encompass statutes [1]
that expressly regulate firearms, or [2] that courts have
applied to the sale and marketing of firearms; and . . .
[3] that do not expressly regulate firearms but that
clearly can be said to implicate the purchase and sale
of firearms.’’ Id., 404. In reaching that conclusion, the
court stated that it found ‘‘nothing in the [arms act]
that requires any express language regarding firearms
to be included in a statute in order for that statute to
fall within the predicate exception’’ and declined ‘‘to
foreclose the possibility that, under certain circum-
stances, state courts may apply a statute of general
applicability to the type of conduct that the [c]ity com-
plains of, in which case such a statute might qualify as
a predicate statute.’’ Id., 399–400. Accordingly, the court
concluded that ‘‘while the mere absence in [the criminal
nuisance statute] of any express reference to firearms
does not, in and of itself, preclude that statute’s eligibil-
ity to serve as a predicate statute under the [arms act,
the criminal nuisance statute] is a statute of general
applicability that does not encompass the conduct of
firearms manufacturers of which the [c]ity complains.
It therefore does not fall within the predicate exception
to the claim restricting provisions of the [arms act].’’
Id., 400.
My review of the relevant statutory text and legisla-
tive history reveal no support for the Second Circuit’s
expansive holding that the predicate exception includes
statutes ‘‘that courts have applied to the sale and mar-
keting of firearms’’ and ‘‘that do not expressly regulate
firearms but that clearly can be said to implicate the
purchase and sale of firearms.’’ Id., 404. This ultimate
conclusion is simply inconsistent with the court’s more
detailed analysis of the relevant statutory text and legis-
lative history, which suggests a narrower reading of
that exception. Specifically, the court considered the
statements of purpose, as well as the list of example
predicate statutes set forth in 15 U.S.C. § 7903 (5) (A)
(iii) (I) and (II), which are ‘‘said to include statutes
regulating [record keeping] and those prohibiting par-
ticipation in direct illegal sales,’’ and stated that ‘‘con-
struing the term ‘applicable to’ to mean statutes that
clearly can be said to regulate the firearms industry
more accurately reflects the intent of Congress.’’ Id.,
402. The court also rejected the dictionary definition
of ‘‘applicable’’ as ‘‘lead[ing] to a far [too] broad reading
of the predicate exception’’ that ‘‘would allow the predi-
cate exception to swallow the statute . . . .’’ Id., 403.
Finally, the court cited the legislative history of the
arms act as ‘‘support [for] the view that the predicate
exception was meant to apply only to statutes that
actually regulate the firearms industry, in light of the
statements’ consistency amongst each other and with
the general language of the statute itself.’’ Id., 404.
Indeed, Judge Robert Katzmann authored a dis-
senting opinion aptly criticizing the majority’s analysis
as inconsistent with the plain language of the statute,
particularly with respect to recognizing those statutes
that courts had previously applied to the sale and manu-
facture of firearms, and further observed that the major-
ity had provided no guidance with respect to when a
statute of general applicability could, in fact, be deemed
applicable to firearms, rendering that aspect of the
majority opinion entirely unpersuasive.8 See id., 406.
Accordingly, I decline to follow the analysis of the Sec-
ond Circuit’s ultimately unpersuasive decision, particu-
larly given that any concerns regarding different
outcomes in federal court; see Turner v. Frowein, 253
Conn. 312, 341, 752 A.2d 955 (2000) (declining to follow
Second Circuit precedent would create ‘‘bizarre result’’
when federal district court, located ‘‘only a few blocks
away,’’ would be bound under same facts); as a result
of such a departure would be minimized because that
case did not specifically involve a claim raised under
a state unfair trade practices law.9
Although it too is not directly on point, my review
of the predicate exception’s text and legislative history
indicates that the analysis of the United States Court
of Appeals for the Ninth Circuit in Ileto v. Glock, Inc.,
supra, 565 F.3d 1126, is more instructive.10 In Ileto, the
Ninth Circuit considered whether the predicate excep-
tion saved the plaintiff’s claims of ‘‘knowing violations’’
of negligence, nuisance, and public nuisance under
‘‘California’s general tort law [that] is codified in its
civil code.’’ Id., 1132–33. Observing ‘‘that the term ‘appli-
cable’ has a spectrum of meanings, including the two
poles identified by the parties,’’ the Ninth Circuit consid-
ered the context of Congress’ use of the word ‘‘applica-
ble,’’ as well as ‘‘the broader context of the statute as
a whole.’’ (Internal quotation marks omitted.) Id., 1134.
The court stated that the ‘‘illustrative predicate statutes
pertain specifically to sales and manufacturing activi-
ties, and most also target the firearms industry specifi-
cally. Those examples suggest that [the] [p]laintiffs’
proposed all-encompassing meaning of the term ‘appli-
cable’ is incorrect, because each of the examples has—
at the very least—a direct connection with sales or
manufacturing. Indeed, if any statute that ‘could be
applied’ to the sales and manufacturing of firearms qual-
ified as a predicate statute, there would be no need to
list examples at all. Similarly, the examples suggest that
[the] [d]efendants’ asserted narrow meaning is incor-
rect, because some of the examples do not pertain
exclusively to the firearms industry.’’ (Emphasis in orig-
inal.) Id.
Determining that the ‘‘text of the statute alone is
inconclusive as to Congress’ intent,’’ the court then
considered ‘‘the additional indicators of congressional
intent.’’ Id., 1135. In particular, the court observed that
the express purpose of the arms act is to ‘‘ ‘prohibit
causes of action against manufacturers, distributors,
dealers, and importers of firearms or ammunition prod-
ucts, and their trade associations, for the harm solely
caused by the criminal or unlawful misuse of firearm
products or ammunition products by others when the
product functioned as designed and intended.’ ’’ Id.,
quoting 15 U.S.C. § 7901 (b) (1) (2006). The court deter-
mined that, in ‘‘view of [the] congressional findings and
that statement of purpose, Congress clearly intended
to preempt common-law claims, such as general tort
theories of liability. [The] [p]laintiffs’ claims—‘classic
negligence and nuisance’—[are] general tort theories
of liability that traditionally have been embodied in
the common law.’’ (Citation omitted; footnote omitted.)
Ileto v. Glock, Inc., supra, 565 F.3d 1135. The court
emphasized that the California legislature did not intend
to supplant the common law by enacting its civil code,
but rather ‘‘to announce and formulate existing com-
mon law principles and definitions for purposes of
orderly and concise presentation and with a distinct
view toward continuing judicial evolution. . . . In
other words, although California has codified its com-
mon law, the evolution of those statutes is nevertheless
subject to the same judicial evolution as ordinary com-
mon-law claims in jurisdictions that have not codified
common law. That judicial evolution was precisely the
target of the [arms act].’’ (Citation omitted; internal
quotation marks omitted.) Id., 1136. The Ninth Circuit
deemed it ‘‘more likely that Congress had in mind only
these types of statutes—statutes that regulate manufac-
turing, importing, selling, marketing, and using firearms
or that regulate the firearms industry—rather than gen-
eral tort theories that happened to have been codified
by a given jurisdiction.’’ Id.
The Ninth Circuit then examined the ‘‘extensive’’ leg-
islative history, and made ‘‘two general observations
. . . . First, all of the congressional speakers’ state-
ments concerning the scope of the [arms act] reflected
the understanding that manufacturers and sellers of
firearms would be liable only for statutory violations
concerning firearm regulations or sales and marketing
regulations.’’ Id., 1136–37. Second, the court observed
that the ‘‘very case’’ before it was exactly ‘‘the type of
case they meant the [arms act] to preempt,’’ along with
other ‘‘novel’’ cases. (Emphasis omitted.) Id., 1137. Ulti-
mately, the court held that ‘‘Congress intended to pre-
empt general tort law claims . . . even though
California has codified those claims in its civil code.’’11
Id., 1138. Unlike the Second Circuit, however, the Ninth
Circuit expressly demurred to state ‘‘any view on the
scope of the predicate exception with respect to any
other statute.’’ Id., 1138 n.9; see also District of Colum-
bia v. Beretta U.S.A. Corp., 940 A.2d 163, 170–72 (D.C.
2008) (concluding that District of Columbia’s Assault
Weapons Manufacturing Strict Liability Act, D.C. Code
§ 7-2551.01 et seq. [2001], is not predicate statute
because it is pure strict liability, and does not provide
‘‘a prohibition against, or standards of, conduct that
are being violated,’’ with plaintiffs’ claims preempted
because they did not allege that ‘‘defendants knowingly
violated any proscriptions or requirements of local or
federal law governing the sale or possession of fire-
arms’’), cert. denied sub nom. Lawson v. Beretta U.S.A.
Corp., 556 U.S. 1104, 129 S. Ct. 1579, 173 L. Ed. 2d
675 (2009).
With this case law in mind, I now turn to the canons
of statutory interpretation and legislative history to
determine whether the predicate exception encom-
passes unfair trade practices statutes that, like CUTPA,
are not specific to the firearms industry.
III
CANONS OF CONSTRUCTION
With respect to the canons of statutory construction,
I first observe that the predicate exception is exactly
that—an exception to the arms act. It is well settled
that, ‘‘when a statute sets forth exceptions to a general
rule, we generally construe the exceptions narrowly in
order to preserve the primary operation of the [provi-
sion].’’ (Internal quotation marks omitted.) Capitol
Records, LLC v. Vimeo, LLC, 826 F.3d 78, 90–91 (2d
Cir. 2016), cert. denied, U.S. , 137 S. Ct. 1374,
197 L. Ed. 2d 554 (2017). This ‘‘proposition . . . is sup-
ported by commonsense logic. When a statute sets forth
a general principle, coupled with an exception to it, it
is logical to assume, in the face of ambiguity in the
exception, that the legislature did not intend the excep-
tion to be so broad as to leave nothing of the general
principle.’’ Id., 91; see also Commissioner of Internal
Revenue v. Clark, 489 U.S. 726, 739, 109 S. Ct. 1455, 103
L. Ed. 2d 753 (1989) (‘‘[g]iven that Congress has enacted
a general rule that treats boot as capital gain, we should
not eviscerate that legislative judgment through an
expansive reading of a somewhat ambiguous excep-
tion’’); A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493,
65 S. Ct. 807, 89 L. Ed. 1095 (1945) (‘‘[t]o extend an
exemption to other than those plainly and unmistakably
within its terms and spirit is to abuse the interpretative
process and to frustrate the announced will of the peo-
ple’’). In the absence of clear direction from Congress to
construe the predicate exception differently, I disagree
with the majority’s suggestion that we should read the
arms act narrowly and its predicate exception more
broadly.12 See Reves v. Ernst & Young, 507 U.S. 170,
183–84, 113 S. Ct. 1163, 122 L. Ed. 2d 525 (1993) (‘‘ ‘[L]ib-
eral construction’ ’’ clause in Racketeer Influenced and
Corrupt Organizations Act [RICO], 18 U.S.C. § 1961 et
seq. [1988], which ‘‘obviously seeks to ensure that Con-
gress’ intent is not frustrated by an overly narrow read-
ing of the statute . . . is not an invitation to apply RICO
to new purposes that Congress never intended. Nor
does the clause help us to determine what purposes
Congress had in mind. Those must be gleaned from the
statute through the normal means of interpretation. The
clause only serves as an aid for resolving an ambiguity;
it is not to be used to beget one.’’ [Internal quotation
marks omitted.]).
Beyond the narrow construction that we should
afford the exceptions to the arms act, the related doc-
trines of noscitur a sociis and avoiding legislative super-
fluity also inform the meaning of the phrase ‘‘State or
Federal statute applicable to the sale or marketing of
[firearms]’’; 15 U.S.C. § 7903 (5) (A) (iii) (2012); and
suggest that the examples of federal laws provided
therein indicate the type of statutory violations that
would sustain invocation of the predicate exception.
Under the canon of noscitur a sociis, ‘‘an ambiguous
term may be given more precise content by the neigh-
boring words with which it is associated.’’13 (Internal
quotation marks omitted.) Bilski v. Kappos, supra, 561
U.S. 604; see also Yates v. United States, U.S. ,
135 S. Ct. 1074, 1085, 191 L. Ed. 2d 64 (2015) (‘‘we rely
on the principle of noscitur a sociis—a word is known
by the company it keeps—to avoid ascribing to one
word a meaning so broad that it is inconsistent with
its accompanying words, thus giving unintended
breadth to the [a]cts of Congress’’ [internal quotation
marks omitted]). ‘‘By using this interpretive aid, the
meaning of a statutory word may be indicated, con-
trolled or made clear by the words with which it is
associated in the statute.’’ (Internal quotation marks
omitted.) State v. Agron, supra, 323 Conn. 636. ‘‘As a
result, broader terms, when used together with more
narrow terms, may have a more restricted meaning than
if they stand alone.’’ Dattco, Inc. v. Commissioner of
Transportation, 324 Conn. 39, 48, 151 A.3d 823 (2016).
This is particularly so, given this canon’s relationship
to the doctrine that ‘‘the [c]ourt will avoid a reading
which renders some words altogether redundant.’’ Gus-
tafson v. Alloyd Co., Inc., 513 U.S. 561, 574, 115 S. Ct.
1061, 131 L. Ed. 2d 1 (1995); accord Lopa v. Brinker
International, Inc., 296 Conn. 426, 433, 994 A.2d 1265
(2010) (‘‘[b]ecause [e]very word and phrase [of a stat-
ute] is presumed to have meaning [a statute] must be
construed, if possible, such that no clause, sentence or
word shall be superfluous, void or insignificant’’ [inter-
nal quotation marks omitted]).
The very specific examples of firearms laws that Con-
gress provides in the predicate exception strongly sug-
gest that it intended only those statutes that are specific
to the firearms trade to be considered ‘‘applicable to
the sale or marketing of the product . . . .’’ 15 U.S.C.
§ 7903 (5) (A) (iii) (2012). The first example is ‘‘any
case in which the manufacturer or seller knowingly
made any false entry in, or failed to make appropriate
entry in, any record required to be kept under Federal
or State law with respect to the qualified product, or
aided, abetted, or conspired with any person in making
any false or fictitious oral or written statement with
respect to any fact material to the lawfulness of the
sale or other disposition of a qualified product . . . .’’
15 U.S.C. § 7903 (5) (A) (iii) (I) (2012). The second is
‘‘any case in which the manufacturer or seller aided,
abetted, or conspired with any other person to sell or
otherwise dispose of a qualified product, knowing, or
having reasonable cause to believe, that the actual
buyer of the qualified product was prohibited from pos-
sessing or receiving a firearm or ammunition under
subsection (g) or (n) of section 922 of title 18 . . . .’’
15 U.S.C. § 7903 (5) (A) (iii) (II) (2012). Had Congress
intended the predicate exception to broadly encompass
any statute capable of application to the manufacture
or sale of anything, the inclusion of those firearms-
specific examples would be superfluous.14 See Yates v.
United States, supra, 135 S. Ct. 1087 (‘‘Had Congress
intended ‘tangible object’ in [18 U.S.C.] § 1519 to be
interpreted so generically as to capture physical objects
as dissimilar as documents and fish, Congress would
have had no reason to refer specifically to ‘record’ or
‘document.’ The Government’s unbounded reading of
‘tangible object’ would render those words misleading
surplusage.’’); Gustafson v. Alloyd Co., supra, 513 U.S.
574–75 (interpreting Securities Act of 1933 and stating
that ‘‘[i]f ‘communication’ included every written com-
munication, it would render ‘notice, circular, advertise-
ment, [and] letter’ redundant, since each of these are
forms of written communication as well’’); Dattco, Inc.
v. Commissioner of Transportation, supra, 324 Conn.
48–49 (‘‘The legislature’s grouping [in General Statutes
(Rev. to 2015) § 13b-36 (a)] of the term ‘facilities’ with
other nouns that all denote tangible objects favors a
conclusion that the term ‘facilities’ also refers to tangi-
ble objects other than land, buildings, and equipment
that might be used in a transportation system. More-
over, interpreting ‘facilities’ to mean only tangible items
does not render it superfluous or redundant with
respect to the terms ‘land,’ ‘buildings,’ or ‘equipment,’
as the commissioner suggests. The term ‘facilities’
embraces numerous tangible items—other than land,
buildings, or equipment—including bridges . . . docks
. . . side railroad tracks that are part of a rail system
. . . dams and reservoirs . . . and even horses.’’ [Cita-
tions omitted.]). Although a reading of the predicate
exception that is informed by the canons of construc-
tion strongly favors the defendants, the plaintiffs’ prof-
fered reading of the statute remains reasonable, insofar
as ‘‘we do not woodenly apply limiting principles every
time Congress includes a specific example along with
a general phrase.’’ Ali v. Federal Bureau of Prisons,
552 U.S. 214, 227, 128 S. Ct. 831, 169 L. Ed. 2d 680
(2008). Accordingly, I continue to consider the legisla-
tive history of the arms act in determining whether a
predicate statute must specifically relate to the fire-
arms industry.
IV
LEGISLATIVE HISTORY
The legislative history also supports a narrow reading
of the predicate exception as limited only to those stat-
utes that govern the sale and marketing of firearms
specifically. I agree with the majority’s description of
the legislative history of the arms act as ‘‘extensive’’ and
‘‘present[ing] something of a mixed bag.’’15 I disagree,
however, with the majority’s conclusion that the legisla-
tive history demonstrates that ‘‘Congress did not intend
to limit the scope of the predicate exception to viola-
tions of firearms specific laws or to confer immunity
from all claims alleging that firearms sellers violated
unfair trade practice laws.’’ Consistent with the purpose
of the arms act as set forth in 15 U.S.C. § 7901; see
footnote 1 of this dissenting opinion; much of the legis-
lative history consists of broad statements by support-
ers of the arms act about saving the American firearms
industry from ‘‘predatory,’’ ‘‘abusive,’’ and ‘‘frivolous’’
lawsuits, sanctioned by ‘‘sympathetic activist judges,’’
seeking ‘‘damages resulting from the criminal or unlaw-
ful misuse of a firearm or ammunition by a third party.’’16
151 Cong. Rec. 18,057–58 (2005), remarks of Senator
Larry Edwin Craig and Senator Thomas Allen Coburn;
see, e.g., id., 2315–16, remarks of Representative Clif-
ford Bundy Stearns (introducing House bill); id., 18,057,
remarks of Senator Craig (‘‘[t]hese predatory lawsuits
are aimed at bankrupting the firearms industry’’ and ‘‘all
seek the same goal of forcing law-abiding businesses
selling a legal product to pay for damages from the
criminal misuse of that product,’’ which would threaten
‘‘a domestic industry that is critical to our national
defense’’ and jeopardize ‘‘hundreds of thousands of
good paying jobs’’); id., 18,058, remarks of Senator
Coburn (‘‘[A]nti-gun activists have found another way
to constrict the right to bear arms and attack the Bill
of Rights and attack the [United States] [c]onstitution,
and that is through frivolous litigation. . . . [These]
novel lawsuits . . . are not intended to create a solu-
tion. They are intended to drive the gun industry out
of business by holding manufacturers and dealers liable
for the intentional and criminal act[s] of third parties
over whom they have absolutely no control.’’); see also
id., 18,070, remarks of Senator William H. Frist; id.,
18,072–73, remarks of Senator Lindsey Graham; id.,
18,073, remarks of Senator Orrin Grant Hatch; id.,
18,914, remarks of Senator Kathryn Ann Bailey Hutchi-
son; id., 18,924, remarks of Senator Jefferson Beaure-
gard Sessions III.
Turning beyond the more sweeping remarks, to the
extent that there is legislative history illuminating the
meaning of the predicate exception, it ‘‘reflect[s] the
understanding that manufacturers and sellers of fire-
arms would be liable only for statutory violations con-
cerning firearm regulations or sales and marketing
regulations.’’ Ileto v. Glock, Inc., supra, 565 F.3d 1137.
Thus, the legislative debate, much of which was
intended to provide assurances that the arms act would
not preempt claims against the dealers who violated
numerous firearms sale laws in selling the Bushmaster
rifle used by the beltway snipers; see, e.g., H.R. Rep.
No. 109-124, p. 92 (2005), remarks of Representative
Melvin L. Watt; supports an interpretation of predicate
statutes as those specifically regulating the sale or mar-
keting of firearms, such as those governing the tracking
of inventory by firearms dealers.17 For example, Senator
Craig explained that the ‘‘bill does not shut the court-
house door,’’ insofar as ‘‘plaintiffs will have the opportu-
nity to argue that their case falls under the exception,
such as violations of [f]ederal and [s]tate law . . . that
you have knowingly sold a firearm to a person who
cannot legally have it or who you have reason to believe
could use it for a purpose other than intended. That all
comes under the current definition of [f]ederal law.’’
151 Cong. Rec. 18,057–58 (2005). In contending that the
arms act does not reduce ‘‘personal accountability’’ for
firearms manufacturers, given its exceptions, Senator
Coburn emphasized that ‘‘gun manufacturers and sell-
ers are already policed enough, too much, through hun-
dreds of pages of statutes, hundreds of pages of
regulations. To name a few sources of regulations of
guns and ammunition: the Internal Revenue Code,
including the National Firearms Act postal regulations
restricting shipping of handguns; [f]ederal explosive
law; regulations for gunpowder and ammunition manu-
facture; the Arms Export Control Act; the Commerce
Department export regulations; the Department of
Transportation regulations on ammunition explosives
and hazardous material transport. In addition to keep-
ing explicit records that can be inspected by . . . the
Bureau of Alcohol, Tobacco, Firearms, and Explosives,
licensed dealers have to conduct a [f]ederal criminal
background check . . . . All retail gun buyers are
screened to the best of the [g]overnment’s ability.’’ Id.,
18,059–60; see also id., 19,119, remarks of Senator Ses-
sions (emphasizing that arms act ‘‘allows lawsuits for
violation of contract, for negligence, in not following
the rules and regulations and for violating any law or
regulation that is part of the complex rules that control
sellers and manufacturers of firearms’’). Similarly, when
introducing the final Senate bill in the House, Represen-
tative Phil Gingrey explained that the predicate excep-
tion ‘‘would specifically allow lawsuits against firearms
dealers such as the dealer whose firearm ended up in the
hands of the [beltway] snipers who failed to maintain
a required inventory list necessary to ensure that they
are alerted to any firearm thefts.’’ Id., 23,020.
Moreover, the majority does not cite, and my indepen-
dent research has not revealed, any legislative history
indicating that state unfair trade practice statutes were
within the contemplation of Congress in enacting the
predicate exception. Other statements indicate that
such statutes were not contemplated as predicates, and
that supporters of the arms act specifically rejected
the viability of claims arising from the advertising of
firearms. For example, arguing in support of the arms
act, Senator Hatch criticized pending actions against
gun manufacturers, observing that these ‘‘lawsuits, cit-
ing deceptive marketing or some other pretext, con-
tinue to be filed in a number of [s]tates, and they
continue to be unsound. These lawsuits claim that sell-
ers give the false impression that gun ownership
enhances personal safety or that sellers should know
that certain guns will be used illegally. That is pure
bunk. Let’s look at the truth. The fact is that none of
these lawsuits are aimed at the actual wrongdoer who
kills or injures another with a gun—none. Instead, the
lawsuits are focused on legitimate, law-abiding busi-
nesses.’’18 (Emphasis added.) 151 Cong. Rec. 18,073;
see also id. (noting that arms act ‘‘provides carefully
tailored protections for legitimate lawsuits, such as
those where there are knowing violations of gun sale
laws’’).
Finally, congressional concerns about vague stan-
dards leading to liability also support a reading of the
predicate exception that is limited to firearms industry-
specific statutes, rather than statutes of general applica-
bility such as CUTPA. For example, in arguing in the
House Judiciary Committee—seemingly inexplicably—
against an amendment that would clarify that the arms
act allows actions against gun dealers who knowingly
sell firearms to a person who is on the violent gang and
terrorist watch list maintained by the Department of
Justice, Representative Christopher B. Cannon argued
that ‘‘the vast number of co-sponsors of this bill would
agree that the burden here should be on the [g]overn-
ment to identify people and not create a vague standard
that could be used again to destroy gun manufacturers
with lawsuits that don’t have clarity, but cost a great
deal of money.’’ H.R. Rep. No. 109-124, supra, p. 126.
Likewise, arguing in support of the arms act, Senator
John Thune emphasized that the exceptions, including
for violating the law in the production or sale of a
firearm, ‘‘are not arbitrary standards . . . .’’ 151 Cong.
Rec. 19,119 (2005).
Similarly, in opposing a bill amendment that would
provide an exception to the arms act for ‘‘gross negli-
gence’’ or ‘‘reckless conduct,’’ Senator John Cornyn
argued that the breadth of those terms ‘‘would actually
gut the very underlying purpose of this legislation’’
because the pleading of such claims would broaden the
scope of the discovery involved, and allow for greater
harassment of the manufacturers via the litigation pro-
cess. Id., 18,918. Senator Jon Llewellyn Kyl described
the amendment as ‘‘a poison pill for the entire bill
because, in effect . . . if you allege gross negligence
or recklessness, then the exemption the bill provides
evaporates. So you are a lawyer. All you do is allege
gross negligence or recklessness and, bingo, you are
back in court again. So it totally undercuts the purpose
of this legislation.’’19 Id., 18,919; see also id., 18,921,
remarks of Senator Craig (arguing that gross negligence
exception would render arms act ‘‘relatively meaning-
less as to where we are in relation to the kind of junk
or dilatory lawsuits that are currently being filed against
gun manufacturers and gun dealers who not only pro-
duce a legal product to the market but sell it in the
legal context’’). Senator Graham similarly emphasized
how statutes affect a manufacturer’s duty of care, stat-
ing that the arms act ‘‘doesn’t let a seller or a distributor
off the hook for violating a statute or making a sale
illegally because it says, if you violate the law that exists,
then you have broken a duty. Duty can be established
by relationships. It can [also] be established by a statute.
So this bill does not allow someone to sell a gun without
following the procedures that we have set out to sell
a gun. It doesn’t allow someone to make a gun that
is unsafe. You are on the hook, and you can be held
accountable based on a simple negligence theory or a
negligence per se theory if you violate a specific statute
during the sale of a gun or manufacturing of a gun.
But what this bill prevents, and I think rightfully so, is
establishing a duty along this line: That you have a
responsibility, even if you do a lawful transaction or
make a safe gun, for an event that you can’t control,
which is the intentional misuse of a weapon in a criminal
fashion by another person. That is the heart of this bill.
It doesn’t relieve you of duties that the law imposes
upon you to safely manufacture and to carefully sell.
But we are not going to extend it to a concept where
you are responsible, after you have done everything
right, for what somebody else may do who bought your
product and they did it wrong and it is their fault, not
yours. So it does not matter whether you use a gross
negligence standard, a simple negligence standard, you
have blown by the concept of the bill in my opinion.
The debate should be, is there a duty owed in this
country for people who follow the law, manufacture
safely, sell within the confines of the laws we have
written at the [s]tate and [f]ederal level to the public
at large if an injury results from the criminal act of
another? If that ever happens, this country has made a
major change in the way we relate to each other and
a major change in the law.’’ Id., 18,920. Accordingly, I
conclude that the legislative history demonstrates that
Congress contemplated that only those statutes provid-
ing clear standards with respect to the sale and market-
ing of firearms would serve as predicate statutes.
V
CONCLUSION
On the basis of my review of the text, case law, canons
of construction, and legislative history, I conclude that
predicate statutes under the predicate exception to the
arms act, 15 U.S.C. § 7903 (5) (A) (iii), are limited to
those specific to the sale and manufacture of firearms.20
Compare Phillips v. Lucky Gunner, LLC, 84 F. Supp.
3d 1216, 1219–20, 1224 (D. Colo. 2015) (concluding in
case arising from movie theater mass shooting that
plaintiffs had not pleaded facts against ammunition
sellers indicating knowledge of shooter’s conduct and
mental condition before shootings, and had not claimed
that firearms sellers engaged in ‘‘noncompliance with
the regulatory requirements applicable to [over the
counter] sales,’’ or that ‘‘the . . . defendants had any
knowledge of the sales made by the others or by the
local firearms dealers’’), and Jefferies v. District of
Columbia, 916 F. Supp. 2d 42, 45–46 (D.D.C. 2013)
(claims against assault rifle manufacturer arising from
shooting by third party are preempted by arms act when
only statute pleaded was District of Columbia’s Assault
Weapons Manufacturing Strict Liability Act, D.C. Code
§ 7-2551 [2001]), with Corporan v. Wal-Mart Stores
East, LP, United States District Court, Docket No. 16-
2305-JWL (JWL) (D. Kan. July 18, 2016) (concluding
that proposed amendments to complaint saved it from
preemption because allegations supported ‘‘plausible
claim’’ that defendants ‘‘knowingly violated certain spe-
cific provisions of the Gun Control Act of 1968,’’ 18
U.S.C. § 921 et seq., with respect to straw purchase of
firearm used in shooting), New York v. A-1 Jewelry &
Pawn, Inc., 252 F.R.D. 130, 132 (E.D.N.Y. 2008) (con-
cluding that arms act preemption was inapplicable
because ‘‘there are alleged in the instant action substan-
tial violations of specific federal laws applicable to the
sale and marketing of firearms which allegedly proxi-
mately cause harm to the [plaintiff]’’ including prohibi-
tions on straw purchasing and violation of state
nuisance statute specifically applicable to firearms
[emphasis omitted]), and Williams v. Beemiller, Inc.,
100 A.D. 3d 143, 148–50, 952 N.Y.S.2d 333 (2012)
(concluding that plaintiffs ‘‘sufficiently alleged that
defendants knowingly violated various federal and state
statutes applicable to the sale or marketing of firearms
within the meaning of the . . . predicate exception’’
when they alleged that federally licensed firearms
dealer knowingly sold multiple handguns to straw pur-
chaser under circumstances suggesting ‘‘trafficking in
the criminal market rather than for their personal use
because [1] they had purchased multiple guns on prior
occasions; [2] they paid for the guns in cash; and [3]
they selected Hi-Point 9mm handguns, which are ‘dis-
proportionately used in crime’ and have ‘no collector
value or interest,’ ’’ with accomplice claims stated based
on government notifications that ‘‘over 13,000 guns they
sold had been used in crimes’’).
To determine whether CUTPA is a predicate statute
under this standard, I consider that, as a matter of state
law, ‘‘CUTPA is, on its face, a remedial statute that
broadly prohibits unfair methods of competition and
unfair or deceptive acts or practices in the conduct of
any trade or commerce. . . . [CUTPA] provides for
more robust remedies than those available under analo-
gous common-law causes of action, including punitive
damages . . . and attorney’s fees and costs, and, in
addition to damages or in lieu of damages, injunctive
or other equitable relief. . . . To give effect to its provi-
sions, [General Statutes] § 42-110g (a) of [CUTPA]
establishes a private cause of action, available to [a]ny
person who suffers any ascertainable loss of money or
property, real or personal, as a result of the use or
employment of a method, act or practice prohibited by
[General Statutes §] 42-110b . . . .’’ (Internal quotation
marks omitted.) Artie’s Auto Body, Inc. v. Hartford
Fire Ins. Co., 317 Conn. 602, 623, 119 A.3d 1139 (2015).
‘‘[Section] 42-110b (a) provides that [n]o person shall
engage in unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade
or commerce. It is well settled that in determining
whether a practice violates CUTPA we have adopted
the criteria set out in the cigarette rule by the [F]ederal
[T]rade [C]ommission for determining when a practice
is unfair: (1) [W]hether the practice, without necessarily
having been previously considered unlawful, offends
public policy as it has been established by statutes, the
common law, or otherwise—in other words, it is within
at least the penumbra of some common law, statutory,
or other established concept of unfairness; (2) whether
it is immoral, unethical, oppressive, or unscrupulous;
(3) whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . . . All three
criteria do not need to be satisfied to support a finding
of unfairness. A practice may be unfair because of the
degree to which it meets one of the criteria or because
to a lesser extent it meets all three. . . . Thus a viola-
tion of CUTPA may be established by showing either
an actual deceptive practice . . . or a practice
amounting to a violation of public policy.’’ (Internal
quotation marks omitted.) Ulbrich v. Groth, 310 Conn.
375, 409–10, 78 A.3d 76 (2013).
‘‘CUTPA, by its own terms, applies to a broad spec-
trum of commercial activity. The operative provision
of [that] act, § 42-110b (a), states merely that ‘[n]o per-
son shall engage in unfair methods of competition and
unfair or deceptive acts or practices in the conduct of
any trade or commerce.’ Trade or commerce, in turn,
is broadly defined as ‘the advertising, the sale or rent
or lease, the offering for sale or rent or lease, or the
distribution of any services and any property, tangible
or intangible, real, personal or mixed, and any other
article, commodity, or thing of value in this state.’
General Statutes § 42-110a (4). The entire act is remedial
in character; General Statutes § 42-110b (d); Hinchliffe
v. American Motors Corp., 184 Conn. 607, 615 n.4, 440
A.2d 810 (1981); and must ‘be liberally construed in
favor of those whom the legislature intended to bene-
fit.’ ’’ (Emphasis added; footnote omitted.) Larsen
Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656
A.2d 1009 (1995). ‘‘CUTPA, like equity, reaches beyond
traditional common law precepts in establishing a fair-
ness standard designed to grow and broaden and mold
[itself] to meet circumstances as they arise . . . . The
resolution of claims requiring the application of broadly
defined and deeply rooted public values such as the
statute’s elusive, but [legislatively] mandated standard
of fairness . . . has historically been the function of a
court of equity.’’21 (Citations omitted; internal quotation
marks omitted.) Associated Investment Co. Ltd. Part-
nership v. Williams Associates IV, 230 Conn. 148, 159,
645 A.2d 505 (1994); see also id., 161–62 (no state consti-
tutional right to jury trial of CUTPA claim).
In summary, whether this court agrees with Congress
or not, in adopting the arms act, Congress adopted
findings and statements of purpose in 15 U.S.C. § 7901;
see footnote 1 of this dissenting opinion; which made
very clear its intent to absolve defendants like these—
gun manufacturers and distributors—from liability for
criminal use of firearms by third parties except in the
most limited and narrow circumstances and, particu-
larly, to shield them from novel or vague standards of
liability.22 This court is obligated, therefore, to construe
the predicate exception to the arms act, 15 U.S.C. § 7903
(5) (A) (iii), narrowly in light of that clear expression
of congressional intent. See, e.g., Trinity Christian
School v. Commission on Human Rights & Opportuni-
ties, 329 Conn. 684, 697–98, 189 A.3d 79 (2018) (‘‘[i]t is
not the province of this court, under the guise of statu-
tory interpretation, to legislate . . . a [particular] pol-
icy, even if we were to agree . . . that it is a better
policy than the one endorsed by the legislature as
reflected in its statutory language’’ [internal quotation
marks omitted]). Put differently, ‘‘[w]hen we construe
a statute, we act not as plenary lawgivers but as surro-
gates for another policy maker, [that is] the legislature.
In our role as surrogates, our only responsibility is to
determine what the legislature, within constitutional
limits, intended to do.’’ (Internal quotation marks omit-
ted.) State v. Salamon, 287 Conn. 509, 520, 949 A.2d
1092 (2008). My analysis of the relevant statutory text,
case law, canons of construction, and legislative history
demonstrates that Congress intended to limit predicate
statutes under that exception to those statutes that
relate specifically to the sale and manufacture of fire-
arms.23 Consequently, I strongly disagree with the
majority’s conclusion that CUTPA, which is a broadly
drafted state unfair trade practices statute applicable
to all commercial entities in a variety of factual circum-
stances, comes within that exception.24 Instead, I would
conclude that, because CUTPA, both in its statutory
text and in its implementation under the cigarette rule,
reaches a range of commercial conduct that far exceeds
the manufacture, marketing, and sale of firearms, it is
not by itself a predicate statute. That state unfair trade
practices statutes had not been used to hold firearms
manufacturers civilly liable to crime victims25 renders
the plaintiffs’ CUTPA claims particularly novel in the
contemplation of Congress; see 15 U.S.C. § 7901 (a) (7)
(2012); and, thus, subject to preclusion under the arms
act.26 I conclude, therefore, that the arms act preempts
the plaintiffs’ claims of immoral advertising in violation
of CUTPA.27 I, therefore, respectfully disagree with part
V of the majority’s opinion, and I would affirm the
judgment of the trial court in its entirety.
Accordingly, I respectfully dissent.
1
Section 7901 of title 15 of the United States Code provides: ‘‘(a) Findings
‘‘Congress finds the following:
‘‘(1) The Second Amendment to the United States Constitution provides
that the right of the people to keep and bear arms shall not be infringed.
‘‘(2) The Second Amendment to the United States Constitution protects
the rights of individuals, including those who are not members of a militia
or engaged in military service or training, to keep and bear arms.
‘‘(3) Lawsuits have been commenced against manufacturers, distributors,
dealers, and importers of firearms that operate as designed and intended,
which seek money damages and other relief for the harm caused by the
misuse of firearms by third parties, including criminals.
‘‘(4) The manufacture, importation, possession, sale, and use of firearms
and ammunition in the United States are heavily regulated by Federal, State,
and local laws. Such Federal laws include the Gun Control Act of 1968, the
National Firearms Act [26 U.S.C. § 5801 et seq.], and the Arms Export Control
Act [22 U.S.C. § 2751 et seq.].
‘‘(5) Businesses in the United States that are engaged in interstate and
foreign commerce through the lawful design, manufacture, marketing, distri-
bution, importation, or sale to the public of firearms or ammunition products
that have been shipped or transported in interstate or foreign commerce
are not, and should not, be liable for the harm caused by those who criminally
or unlawfully misuse firearm products or ammunition products that function
as designed and intended.
‘‘(6) The possibility of imposing liability on an entire industry for harm
that is solely caused by others is an abuse of the legal system, erodes
public confidence in our Nation’s laws, threatens the diminution of a basic
constitutional right and civil liberty, invites the disassembly and destabiliza-
tion of other industries and economic sectors lawfully competing in the free
enterprise system of the United States, and constitutes an unreasonable
burden on interstate and foreign commerce of the United States.
‘‘(7) The liability actions commenced or contemplated by the Federal
Government, States, municipalities, and private interest groups and others
are based on theories without foundation in hundreds of years of the com-
mon law and jurisprudence of the United States and do not represent a
bona fide expansion of the common law. The possible sustaining of these
actions by a maverick judicial officer or petit jury would expand civil liability
in a manner never contemplated by the framers of the Constitution, by
Congress, or by the legislatures of the several States. Such an expansion
of liability would constitute a deprivation of the rights, privileges, and
immunities guaranteed to a citizen of the United States under the Fourteenth
Amendment to the United States Constitution.
‘‘(8) The liability actions commenced or contemplated by the Federal
Government, States, municipalities, private interest groups and others
attempt to use the judicial branch to circumvent the Legislative branch of
government to regulate interstate and foreign commerce through judgments
and judicial decrees thereby threatening the Separation of Powers doctrine
and weakening and undermining important principles of federalism, State
sovereignty and comity between the sister States.
‘‘(b) Purposes
‘‘The purposes of [the arms act] are as follows:
‘‘(1) To prohibit causes of action against manufacturers, distributors,
dealers, and importers of firearms or ammunition products, and their trade
associations, for the harm solely caused by the criminal or unlawful misuse
of firearm products or ammunition products by others when the product
functioned as designed and intended.
‘‘(2) To preserve a citizen’s access to a supply of firearms and ammunition
for all lawful purposes, including hunting, self-defense, collecting, and com-
petitive or recreational shooting.
‘‘(3) To guarantee a citizen’s rights, privileges, and immunities, as applied
to the States, under the Fourteenth Amendment to the United States Consti-
tution, pursuant to section 5 of that Amendment.
‘‘(4) To prevent the use of such lawsuits to impose unreasonable burdens
on interstate and foreign commerce.
‘‘(5) To protect the right, under the First Amendment to the Constitution,
of manufacturers, distributors, dealers, and importers of firearms or ammuni-
tion products, and trade associations, to speak freely, to assemble peaceably,
and to petition the Government for a redress of their grievances.
‘‘(6) To preserve and protect the Separation of Powers doctrine and
important principles of federalism, State sovereignty and comity between
sister States.
‘‘(7) To exercise congressional power under article IV, section 1 (the Full
Faith and Credit Clause) of the United States Constitution.’’
2
Section 7903 (5) (A) of title 15 of the United States Code provides:
‘‘In general
‘‘The term ‘qualified civil liability action’ means a civil action or proceeding
or an administrative proceeding brought by any person against a manufac-
turer or seller of a qualified product, or a trade association, for damages,
punitive damages, injunctive or declaratory relief, abatement, restitution,
fines, or penalties, or other relief, resulting from the criminal or unlawful
misuse of a qualified product by the person or a third party, but shall
not include—
‘‘(i) an action brought against a transferor convicted under section 924
(h) of title 18, or a comparable or identical State felony law, by a party
directly harmed by the conduct of which the transferee is so convicted;
‘‘(ii) an action brought against a seller for negligent entrustment or negli-
gence per se;
‘‘(iii) an action in which a manufacturer or seller of a qualified product
knowingly violated a State or Federal statute applicable to the sale or
marketing of the product, and the violation was a proximate cause of the
harm for which relief is sought, including—
‘‘(I) any case in which the manufacturer or seller knowingly made any
false entry in, or failed to make appropriate entry in, any record required
to be kept under Federal or State law with respect to the qualified product,
or aided, abetted, or conspired with any person in making any false or
fictitious oral or written statement with respect to any fact material to
the lawfulness of the sale or other disposition of a qualified product; or
‘‘(II) any case in which the manufacturer or seller aided, abetted, or
conspired with any other person to sell or otherwise dispose of a qualified
product, knowing, or having reasonable cause to believe, that the actual
buyer of the qualified product was prohibited from possessing or receiving
a firearm or ammunition under subsection (g) or (n) of section 922 of
title 18;
‘‘(iv) an action for breach of contract or warranty in connection with the
purchase of the product;
‘‘(v) an action for death, physical injuries or property damage resulting
directly from a defect in design or manufacture of the product, when used
as intended or in a reasonably foreseeable manner, except that where the
discharge of the product was caused by a volitional act that constituted a
criminal offense, then such act shall be considered the sole proximate cause
of any resulting death, personal injuries or property damage; or
‘‘(vi) an action or proceeding commenced by the Attorney General to
enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26.’’
3
Section 7902 of title 15 of the United States Code provides: ‘‘(a) In general
‘‘A qualified civil liability action may not be brought in any Federal or
State court.
‘‘(b) Dismissal of pending actions
‘‘A qualified civil liability action that is pending on October 26, 2005, shall
be immediately dismissed by the court in which the action was brought or
is currently pending.’’
4
The plaintiffs at issue in the present appeal are as follows: Donna L.
Soto, administratrix of the estate of Victoria L. Soto; Ian Hockley and Nicole
Hockley, coadministrators of the estate of Dylan C. Hockley; William D.
Sherlach, executor of the estate of Mary Joy Sherlach; Leonard Pozner,
administrator of the estate of Noah S. Pozner; Gilles J. Rousseau, administra-
tor of the estate of Lauren G. Rousseau; David C. Wheeler, administrator
of the estate of Benjamin A. Wheeler; Neil Heslin and Scarlett Lewis, coad-
ministrators of the estate of Jesse McCord Lewis; Mark Barden and Jacque-
line Barden, coadministrators of the estate of Daniel G. Barden; and Mary
D’Avino, administratrix of the estate of Rachel M. D’Avino. See also footnote
2 of the majority opinion.
5
The defendants are as follows: Bushmaster Firearms International, LLC;
Freedom Group, Inc.; Bushmaster Firearms; Bushmaster Firearms, Inc.;
Bushmaster Holdings, LLC; Remington Arms Company, LLC; Remington
Outdoor Company, Inc.; Camfour, Inc.; Camfour Holding, LLP; Riverview
Sales, Inc.; and David LaGuercia.
6
It is not disputed that the AR-15 is a ‘‘qualified product’’ under the
arms act. See 15 U.S.C. § 7903 (4) (2012) (defining ‘‘ ‘qualified product’ ’’ as
‘‘firearm . . . ammunition . . . or component part . . . that has been
shipped or transported in interstate or foreign commerce’’). For the sake
of convenience and clarity, I use the word ‘‘firearm’’ in describing the reach
of the arms act, understanding that word to be synonymous with the defini-
tion of ‘‘qualified product’’ under 15 U.S.C. § 7903 (4).
7
Section 240.45 of New York’s Penal Law (McKinney 2008) provided
in relevant part: ‘‘A person is guilty of criminal nuisance in the second
degree when:
‘‘1. By conduct either unlawful in itself or unreasonable under all the
circumstances, he knowingly or recklessly creates or maintains a condition
which endangers the safety or health of a considerable number of persons; or
‘‘2. He knowingly conducts or maintains any premises, place or resort
where persons gather for purposes of engaging in unlawful conduct . . . .’’
8
Judge Katzmann also observed that this approach creates a ‘‘Catch-22,’’
insofar as ‘‘the apparently insurmountable obstacle for the plaintiffs here
is that the New York courts have not yet addressed the question—as such,
the majority feels free to conclude that [the criminal nuisance statute] is
not ‘applicable’ to the sale and marketing of firearms. Unlike, say, a fruit,
which is edible long before someone has eaten it, or gasoline, which is
flammable even before someone has ignited it, the majority finds that a
state law is not applicable until a state court actually applies it.’’ New York
v. Beretta U.S.A. Corp., supra, 524 F.3d 406–407. Judge Katzmann criticized
this as inconsistent with the plain meaning of the word ‘‘applicable,’’ and
observed that it invited forum shopping in order for parties first to obtain
a state court interpretation of the potentially applicable state law. Id., 407.
Instead, Judge Katzmann would follow what he deemed to be the ‘‘plain
meaning’’ of the predicate exception, concluding that [the] criminal nuisance
statute could be applied to firearms by its general terms, and he would have
certified to the New York Court of Appeals a question of state law, namely,
‘‘whether the . . . criminal nuisance statute . . . is in fact ‘applicable to
the sale and marketing of firearms.’ ’’ (Citation omitted.) Id. Although I
disagree with Judge Katzmann’s ultimate conclusion with respect to the
plain meaning of the relevant statutory language, I nevertheless share his
other concerns with respect to the interpretation of the predicate exception.
9
I also find unpersuasive the decision of the Indiana Court of Appeals in
Smith & Wesson Corp. v. Gary, 875 N.E.2d 422, 431 (Ind. App. 2007), transfer
denied, 915 N.E.2d 978 (Ind. 2009), to the extent that it concluded that the
plain language of the predicate exception did not bar a city’s claim of public
nuisance against a gun manufacturer insofar as the nuisance statute is
‘‘capable of being applied’’ to the sale and marketing of firearms. I note,
however, that the court emphasized that the allegations in the complaint
satisfied the manufacturers’ more restrictive reading of the predicate excep-
tion, because they claimed numerous violations of ‘‘statute[s] directly appli-
cable to the sale or marketing of a firearm . . . .’’ Id., 432.
10
I note that the plaintiffs in the present case have candidly acknowledged
that the approach adopted by the Ninth Circuit in Ileto v. Glock, Inc., supra,
565 F.3d 1126, is ‘‘more restrictive’’ than the Second Circuit’s approach in
New York v. Beretta U.S.A. Corp., supra, 524 F.3d 404.
11
The decision of the Ninth Circuit in Ileto was not unanimous. In dissent,
Judge Marsha S. Berzon concluded that the plaintiffs’ claims alleging viola-
tions of the California Civil Code were, in fact, saved by the predicate
exception. See Ileto v. Glock, Inc., supra, 565 F.3d 1146–47. Judge Berzon
first observed that ‘‘the predicate exception cannot possibly encompass
every statute that might be ‘capable of being applied’ to the sale or manufac-
ture of firearms; if it did, the exception would swallow the rule, and no civil
lawsuits would ever be subject to dismissal under the [arms act]. I therefore
agree with the majority that a limiting principle must be found, and that
rather than trying to locate it in the word ‘applicable’ itself, we must look
to the predicate exception’s surrounding words.’’ (Emphasis in original.)
Id., 1155. Judge Berzon determined that ‘‘the key to interpreting the predicate
exception is [Congress’] use of the word ‘knowingly’ ’’; id.; insofar as
‘‘[a]pplying the [arms act’s] predicate exception as written—that is, as
applying to all statutes capable of being applied to the sale or marketing
of firearms, but imposing an actual knowledge requirement—would prohibit
a swath of lawsuits against firearms manufacturers and sellers, including
those brought by municipalities for violations of no-fault or absolute liability
statutes or those brought by individuals alleging vicarious liability under
state tort law for the conduct of third parties of which the gun manufacturers
or sellers were not aware.’’ Id., 1163. Judge Berzon concluded that the
various allegations in the plaintiffs’ complaint supported their claim that the
defendants ‘‘knowingly committed a range of acts in violation of California
negligence and nuisance law’’ by engaging in sales and marketing practices
that created ‘‘distribution channels that they know regularly provide guns
to criminals and underage end users [and, despite information from govern-
ment crime trace reports,] knowingly supply a range of disreputable distribu-
tors, dealers, gun shops, pawnshops, gun shows, and telemarketers in the
[s]tate of California . . . .’’ (Emphasis in original; internal quotation marks
omitted.) Id., 1156.
12
The majority states that Congress intended that the arms act itself be
narrowly construed, insofar as its proponents described it as a ‘‘ ‘narrow’ ’’
exemption intended only to curb ‘‘ ‘junk or abusive’ ’’ lawsuits seeking to
charge the firearms industry liable for the acts of third parties who are
beyond their control. See, e.g., 151 Cong. Rec. 18,084, 18,911, 19,137 (2005),
remarks of Senator Larry Edwin Craig. I disagree with the majority that this
generalized legislative history indicates any desire by Congress to depart
from the usual rules of statutory construction. Indeed, in arguing in support
of the arms act, Representative Cliff Stearns, its sponsor in the House of
Representatives, suggested that it would ‘‘eliminate predatory lawsuits that
would otherwise cripple an entire industry,’’ and described numerous pend-
ing cases against manufacturers and dealers arising from criminal shootings,
based on theories such as public nuisance and strict liability statutes; he
emphasized that he ‘‘made these remarks to ensure that anyone trying to
evade the letter and spirit of this legislation will have as little ‘wiggle room’
as possible.’’ Id., 23,279–80.
I also note that frivolity remains in the eye of the beholder, and that the
proponents of the arms act appear from their remarks, discussed in greater
detail in part IV of this dissenting opinion, to employ that term in a manner
different than its well established legal meaning. See, e.g., Schoonmaker v.
Lawrence Brunoli, Inc., 265 Conn. 210, 254–55, 828 A.2d 64 (2003) (‘‘an
action is frivolous . . . if the client desires to have the action taken primarily
for the purpose of harassing or maliciously injuring a person or if the lawyer
is unable either to make a good faith argument on the merits of the action
taken or to support the action taken by a good faith argument for an exten-
sion, modification or reversal of existing law’’ [emphasis omitted; internal
quotation marks omitted]); cf. Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir.
1990) (discussing rule 11 of Federal Rules of Civil Procedure), cert. denied,
498 U.S. 1028, 111 S. Ct. 681, 112 L. Ed. 2d 673 (1991). Accordingly, I
emphasize that I do not view the plaintiffs’ claims in the present case as
frivolous in any way.
13
I note that a related canon often applied is ‘‘ejusdem generis, or the
principle that when a general term follows a specific one, the general term
should be understood as a reference to subjects akin to the one with specific
enumeration.’’ (Internal quotation marks omitted.) Ali v. Federal Bureau of
Prisons, 552 U.S. 214, 223, 128 S. Ct. 831, 169 L. Ed. 2d 680 (2008).
14
The majority relies on portions of the legislative history as indicating
that ‘‘the record keeping and unlawful buyer illustrations were included in
the final version of [the arms act] not in an effort to define, clarify, or narrow
the universe of laws that qualify as predicate statutes but, rather, simply to
stave off the politically potent attack that [the arms act] would have barred
lawsuits like the one that had arisen from the widely reported beltway sniper
attacks. There is no other plausible explanation for why Congress chose to
modify the predicate exception language contained in the 2001 and 2003
bills, which otherwise was ‘virtually identical’ to the language in [the arms
act]. 151 Cong. Rec. 2561 (2005), remarks of Senator Larry Edwin Craig;
see also id., 18,096, remarks of Senator Craig (indicating that bill is same
for all intents and purposes as version introduced during 108th Congress,
with addition of clarifying examples).’’ The majority further notes that this
‘‘conclusion is bolstered by the fact that Congress was fully aware that there
are many types of federal statutes and regulations, filling ‘hundreds of pages,’
that specifically govern the firearms industry. 151 Cong. Rec. 18,059 (2005),
remarks of Senator Thomas Allen Coburn.’’
I respectfully disagree with this reading of the legislative history with
respect to the import of the illustrative statutes in the predicate exception.
Although I agree that the vitality of the beltway sniper lawsuit was a powerful
political consideration during the enactment of the arms act, I view that
action’s basis in concrete record keeping and unlawful buyer violations
simply as an exemplar of what Congress did not intend the arms act to
preclude. With those exemplars included in the final version of the predicate
exception, I am not at liberty simply to ignore their import in the construction
of the statute as a whole. See, e.g., United States v. Dauray, supra, 215 F.3d
264 (‘‘our role as a court is to apply the provision as written, not as we
would write it’’ [internal quotation marks omitted]).
15
As a general matter, I also agree with the observation of Judge Marsha
S. Berzon, in her dissenting opinion in Ileto v. Glock, Inc., supra, 565 F.3d
1126, that much of the legislative history of the arms act needs to be taken
with a grain of salt. Judge Berzon aptly observed that ‘‘individual legislators
at times suggested divergent views of what sorts of lawsuits the [arms act]
would affect if it were passed into law. Some of those views appear perhaps
implausibly narrow or implausibly broad, likely because the bill excited
strong emotions from both its supporters and its opponents. As courts have
long cautioned, however, the statements of single lawmakers do not establish
congressional intent.’’ (Footnote omitted.) Id., 1161–62.
16
In contrast, opponents of the arms act roundly criticized it as a gift to
the gun lobby that would deprive injured persons of the opportunity to hold
the firearms industry responsible for turning a blind eye to criminal activity
in the name of profits. See, e.g., 151 Cong. Rec. 18,065 (2005), remarks of
Senator Dianne Feinstein (‘‘[The arms act] has nothing to do with protecting
lawful commerce; rather, it protects one segment of industry against the
lawful interests of our [s]tates in remedying and deterring negligent conduct.
. . . Its proponents argue that lawsuits need to be stopped in order to
defend their view of the [s]econd [a]mendment. But that is pretense. This
bill is a simple giveaway to one industry—the gun lobby. It is a special
interest windfall.’’); id., 18,902, remarks of Senator Edward Moore Kennedy
(‘‘Instead of addressing the real issues that can make our country and our
communities safer, we are considering a bill that will close the courthouse
door to victims of gun crimes and give a free pass to the handful of gun
dealers and gun manufacturers who sell firearms to terrorists and criminals.
We are doing it to appease the special interests of the [National Rifle Associa-
tion].’’); id., 23,021, remarks of Representative James P. McGovern (‘‘While
the proponents of this bill claim that the intent of this legislation is to protect
jobs at mom-and-pop gun stores from reckless lawsuits, the truth is that
the bill is all about protecting profits for the gun industry. Ensuring its
yearly profits, not protecting jobs nor safeguarding gun sales, is atop the
priorities of the gun industry.’’); id., 19,217, remarks of Senator Charles Ellis
Schumer (‘‘[I]t is shocking that we would spend our time giving unwarranted
and unprecedented immunity to an industry whose products, when allowed
into the hands of the wrong people, do incredible harm to innocent Ameri-
cans. We even put off working on a defense bill to do this favor to the
gun lobby.’’).
17
I disagree with the majority’s circular reliance on statements of legisla-
tors indicating that the arms act protects ‘‘ ‘law-abiding’ ’’ gun dealers and
manufacturers, as suggesting that encompasses those who do not engage
in violations of unfair trade practices acts. See, e.g., 151 Cong. Rec. 18,057
(2005), remarks of Senator Craig (observing that actions against firearms
industry ‘‘all seek the same goal of forcing law-abiding businesses selling a
legal product to pay for damages from the criminal misuse of that product’’);
id., 19,137, remarks of Senator Craig (‘‘[w]hat we have crafted is a very
narrow exemption from predatory lawsuits seeking to hold legitimate, law-
abiding people responsible for the harm done by the misdeeds of people
over whom they have no control’’); id., 23,024, remarks of Representative
Charles Foster Bass (arguing that arms act ‘‘protects licensed and law abiding
firearms and ammunitions manufacturers and sellers from lawsuits that
seek to hold them responsible for the crimes that third party criminals
commit’’). These statements, which are ambiguous and no more illuminating
than the purpose of eliminating ‘‘frivolous’’ lawsuits, prove too much, as
the arms act by its very terms shields gun manufacturers and dealers from
the consequences of violating numerous laws, both common and statutory
in nature, such as California’s general tort statutes. See Ileto v. Glock, Inc.,
supra, 565 F.3d 1136–38. Put differently, these remarks do nothing to answer
the core question in the present appeal, which requires this court to consider
whether such laws are indeed within the contemplation of the predicate
exception.
18
I recognize that the statements of opponents may be of limited value
in discerning legislative intent. See, e.g., National Woodwork Manufacturers
Assn. v. National Labor Relations Board, 386 U.S. 612, 639–40, 87 S. Ct.
1250, 18 L. Ed. 2d 357 (1967) (‘‘[W]e have often cautioned against the danger,
when interpreting a statute, of reliance upon the views of its legislative
opponents. In their zeal to defeat a bill, they understandably tend to overstate
its reach.’’ [Internal quotation marks omitted.]). I find it telling, however,
that Senator Edward Kennedy, in opposing the arms act, expressly recog-
nized that it would protect firearms manufacturers who engage in just the
kind of advertising that the plaintiffs in the present case claim is immoral
in violation of CUTPA. Senator Kennedy stated that the ‘‘bill will even protect
manufacturers that promote military-style weapons for use in battle in urban
scenarios against any foe at any range. It protects manufacturers who brag
about their weapons of war and spread them to our streets.’’ 151 Cong. Rec.
19,121–22; see also id. (‘‘Look at this advertisement from Vulcan: ‘Vulcan
Armament, the weapons of the special forces. From Afghanistan to Iraq,
the guns of the special forces are now on sale in America.’’).
19
Opponents of the proposed amendment to provide an exception to the
arms act for ‘‘gross negligence’’ or ‘‘reckless conduct’’ also described it as
unnecessary because they viewed such acts as likely to violate an existing
federal or state statute. See 151 Cong. Rec. 18,919 (2005), remarks of Senator
Kyl (‘‘[Firearm manufacture and sale] is a highly regulated industry by law,
by [f]ederal law and [s]tate law and even some local laws. And most of the
acts that would meet the definition of gross negligence would already be
in violation of law. And if they are in violation of law, they are not exempted
from this legislation. We don’t try to exempt any gun manufacturer for
conduct which is in violation of law.’’); id., 18,922, remarks of Senator Hatch
(‘‘[v]irtually any act that would meet the definition of gross negligence
referenced in this amendment would already be a violation of [f]ederal,
[s]tate or local law, and therefore would not receive the protection of this
law anyway’’); id., 19,118, remarks of Senator Craig (discussing rejection of
gross negligence exception and arguing that arms act ‘‘does not take away
the standards of law and the specifications within the [f]ederal law today
as it relates to the responsible and legal operation and performance of a
gun manufacturer or a licensed [f]ederal firearms dealer’’).
20
My research indicates that the limited academic commentary on this
issue also supports this interpretation of the predicate exception. See K.
Armstrong, ‘‘Nigh-Impenetrable: Firearm Manufacturer Liability under the
Protection of Lawful Commerce in Arms Act in a Post-Heller World,’’ 28 Geo.
Mason U. C.R. L.J. 173, 195 (2018) (‘‘[s]tatutes qualifying for the predicate
exception must not be of general applicability and cannot be codified general
tort claims’’); R. Sorensen, ‘‘The Ninth Circuit Forecloses a Bullet Sized
Hole in the PLCAA in Ileto v. Glock, 565 F.3d 1126 (9th Cir. 2009),’’ 35 S.
Ill. U. L.J. 573, 595 (2011) (‘‘[F]uture courts should only find statutes expressly
regulating the firearm industry to be ‘applicable to the sale or marketing of
firearms.’ It is through this narrow definition that the [arms act’s] intended
goal is realized.’’); see also J. Sonner, ‘‘A Crack in the Floodgates: New
York’s Fourth Department, the PLCAA, and the Future of Gun Litigation
After Williams v. Beemiller,’’ 61 Buff. L. Rev. 969, 984 (2013) (‘‘The elusive
definition remains—a law applicable to gun sales or marketing whose viola-
tion proximately causes harm for which relief is sought—without any clarifi-
cation of ‘applicable.’ The Second Circuit hinted at a [less strict] approach,
but no clear standard has emerged to determine whether a law or regulation
indirectly concerning the gun industry may serve as a predicate statute.’’
[Emphasis in original; footnote omitted.]); S. Wagman, ‘‘No One Ever Died
from Copyright Infringement: The Inducement Doctrine’s Applicability to
Firearms Manufacturer Liability,’’ 32 Cardozo L. Rev. 689, 720 (2010) (‘‘While
it is apparent that the [arms act] is meant to protect firearms manufacturers
from third party liability in instances of unintentional support of third party
gun violence, instances in which manufacturers have induced harm should
not be barred under [the arms act]. When manufacturers either intentionally
or recklessly support illegal firearms markets, they are inducing a public
nuisance; therefore the predicate exception should be triggered and claims
should be allowed to proceed.’’); but see J. Selkowitz, Note, ‘‘Guns, Public
Nuisance, and the PLCAA: A Public Health-Inspired Legal Analysis of the
Predicate Exception,’’ 83 Temp. L. Rev. 793, 827–28 (2011) (suggesting that
examples in predicate exception are consistent with promotion of public
health, permitting maintenance of statutory public nuisance action ‘‘alleging
that the gun industry, in violation of statute, created an environment danger-
ous to the public’s health’’).
21
I also strongly disagree with the majority’s contention that the theory
of liability underlying the plaintiffs’ CUTPA claims ‘‘is not novel’’ and ‘‘does
[not] sound in tort,’’ and, therefore, are not within the scope of claims that
the arms act seeks to preempt. The Second Circuit has aptly observed that
‘‘[u]nfair trade practices found their origin in the common law of torts
. . . .’’ United States v. Meldish, 722 F.2d 26, 28 (2d Cir. 1983), cert. denied,
465 U.S. 1101, 104 S. Ct. 1597, 80 L. Ed. 2d 128 (1984); see also, e.g., Kenney
v. Independent Order of Foresters, 744 F.3d 901, 907 (4th Cir. 2014) (West
Virginia unfair trade practices act claim ‘‘sounds in tort’’ given type of relief
available under statute and sought in complaint); Ins. Co. of North America
v. Della Industries, Inc., 998 F. Supp. 159, 164 (D. Conn. 1998) (CUTPA is
tort claim for purposes of assignment under Uniform Commercial Code),
vacated on other grounds, 229 F.3d 1135 (2d Cir. 1999); R. Langer et al., 12
Connecticut Practice Series: Connecticut Unfair Trade Practices, Business
Torts and Antitrust (2018) § 2.1, p. 13 (noting that CUTPA ‘‘has brought
both expanded remedies and broad and indefinite substantive standards to
the law of business torts’’).
Given the potential for liability and remedy available under CUTPA, which
is broader than that available at common law; see, e.g., Associated Invest-
ment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 159,
645 A.2d 505 (1994); I disagree with the logic behind the majority’s premise
that Congress intended the arms act to preempt state common-law claims,
but leave undisturbed even broader sources of liability under state unfair
trade practice statutes like CUTPA. See District of Columbia v. Beretta
U.S.A. Corp., supra, 940 A.2d 171 n.6 (court relied on findings in 15 U.S.C.
§ 7901 [a] [3] and [7], and rejected plaintiffs’ reliance on congressional
expression of ‘‘concern with liability actions ‘without foundation in hundreds
of years of the common law’ and that ‘do not represent a bona fide expansion
of the common law’ ’’ as standing for proposition that ‘‘Congress was substan-
tially less troubled by the existence of statutory liability actions reflecting
judgments ‘by the legislatures of the several [s]tates’ ’’ because ‘‘[n]o such
distinction . . . is reflected either in the definition of a ‘qualified civil liabil-
ity action’ or in the enumerated actions excluded therefrom, including the
predicate exception; and to posit one all the same would ignore [Congress’]
objection to ‘[l]awsuits’’ as a class [unless excepted] that ‘seek money dam-
ages and other relief [against manufacturers and sellers] for the harm caused
by the misuse of firearms by third parties, including criminals’ ’’ [empha-
sis omitted]).
22
I disagree with the majority’s argument that the sponsors of the arms
act ‘‘emphasized that their primary concern was not with lawsuits such as
the present action, in which individual plaintiffs who have been harmed in
a specific incident of gun violence seek to hold the sellers responsible for
their specific misconduct in selling the weapons involved. . . . Many propo-
nents indicated that their intent was to preclude the rising number of
instances in which municipalities and ‘anti-gun activists’ filed ‘junk’ or ‘frivo-
lous’ lawsuits targeting the entire firearms industry.’’ (Citation omitted;
emphasis added.) The majority’s assertion that the sponsors of the arms
act did not desire to foreclose claims by individual plaintiffs who had suffered
specific harm from an instance of gun violence is an overly generous reading
of the legislative history. The legislative history indeed indicates that Con-
gress specifically rejected proposed amendments that would have provided
two groups of politically sympathetic individual plaintiffs, namely children
and law enforcement officers injured in the line of duty, with relief from
the strictures of the arms act. See 151 Cong. Rec. 19,116–17 (2005), remarks
of Senator Frank Raleigh Lautenberg (proposing exception for children);
id., 19,125–26, remarks of Senator Jon Stevens Corzine (proposing law
enforcement exception); H.R. Rep. No. 109-124, supra, pp. 64–65, remarks
of Representative Sheila Jackson Lee (proposing exemption for children);
H.R. Rep. No. 109-124, supra, pp. 110–11, remarks of Representative Zoe
Lofgren (describing potential effect of arms act on case of New Jersey police
officers who brought action against gun dealer who sold weapons to straw
buyer despite his suspicions).
23
I agree with the majority that the ‘‘regulation of advertising that threatens
the public health, safety, and morals has long been considered a core exercise
of the states’ police powers.’’ See, e.g., Lorillard Tobacco Co. v. Reilly, 533
U.S. 525, 541–42, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001). Nevertheless, I
find overbroad the majority’s reliance on the well established presumption
that ‘‘Congress does not intend to supersede the historic police powers of
the [s]tates absent clear intent . . . .’’ (Internal quotation marks omitted.)
Federal Housing Finance Agency v. Nomura Holding America, Inc., 873
F.3d 85, 112 n.30 (2d Cir. 2017); see also, e.g., Altria Group, Inc. v. Good,
555 U.S. 70, 77, 129 S. Ct. 538, 172 L. Ed. 2d 398 (2008); Medtronic, Inc. v.
Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996). The
majority’s heavy reliance on this presumption elevates it beyond the more
holistic preemption inquiry undertaken when the statutory language is
ambiguous, as we consider the statute’s ‘‘structure and purpose . . . as a
whole . . . as revealed not only in the text, but through the reviewing
court’s reasoned understanding of the way in which Congress intended the
statute and its surrounding regulatory scheme to affect business, consumers,
and the law.’’ (Citation omitted; internal quotation marks omitted.) Med-
tronic, Inc. v. Lohr, supra, 486. In contrast, my review of the legislative
history, and particularly the remarks of members of Congress expressing
their concerns over the breadth of a gross negligence exception and the
potential for vague standards of liability, indicates that Congress would not
have contemplated letting a broadly worded state unfair trade practice
statute like CUTPA be used to eviscerate its intent to protect firearms
manufacturers and dealers from litigation arising from shootings perpetrated
by third parties. See part IV of this dissenting opinion.
24
I also note that the majority observes that certain members of Congress
‘‘were committed to Americans’ second amendment freedoms and sought
to secure those freedoms by immunizing firearms companies from frivolous
lawsuits.’’ Citing recent federal cases considering the constitutionality of
bans on ‘‘assault weapons’’ and ‘‘high capacity magazines,’’ the majority also
notes, however, that ‘‘[i]t is not at all clear . . . that the second amendment’s
protections even extend to the types of quasi-military, semiautomatic assault
rifles at issue in the present case.’’ See, e.g., Kolbe v. Hogan, 849 F.3d
114, 136 (4th Cir.) (AR-15 with high capacity magazine is ‘‘weapon of war’’
excluded from second amendment coverage), cert. denied, U.S. ,
138 S. Ct. 469, 199 L. Ed. 2d 374 (2017); New York State Rifle & Pistol Assn.,
Inc. v. Cuomo, 804 F.3d 242, 257–61 (2d Cir. 2015) (assuming, arguendo,
that second amendment protections extend to assault rifles, but concluding
that ban on such weapons survives intermediate scrutiny). My review of
the legislative history and statutory text does not indicate any intent by
Congress to identify predicate statutes by examining various nuances of
second amendment law. Because the degree to which the second amendment
protects the AR-15 is, therefore, not at issue in this appeal, I do not consider
that question further.
25
The majority states that it ‘‘must [be] presum[ed] that Congress was
aware, when it enacted [the arms act], that both the [Federal Trade Commis-
sion] Act and state analogues such as CUTPA have long been among the
primary vehicles for litigating claims that sellers of potentially dangerous
products such as firearms have marketed those products in an unsafe and
unscrupulous manner.’’ The majority then cites cases from this state for the
proposition that ‘‘CUTPA . . . has been applied to the sale of firearms,’’
and decisions from other jurisdictions for the proposition that ‘‘regulation
of firearms advertising in our sister states frequently has been accomplished
under the auspices of state consumer protection and unfair trade practice
laws.’’ In my view, these decisions stand only for the proposition that wide
reaching unfair trade practice statutes are as applicable to the firearms
industry as they are to any other business; they have nothing at all to do
with the arms act or the predicate exception. See Melton v. Century Arms,
Inc., 243 F. Supp. 3d 1290, 1296–97, 1305–1306 (S.D. Fla. 2017) (rifle owners
brought, inter alia, Florida unfair trade practices act claim arising from
advertising and sale of AK-47 rifles with known design defect that allows
accidental discharge); FN Herstal, S.A. v. Clyde Armory, Inc., 123 F. Supp.
3d 1356, 1375–76 and n.105 (M.D. Ga. 2015) (firearms manufacturer brought
trademark infringement claims against firearms distributor and retailer
under federal Lanham Act and Georgia deceptive trade practices law), aff’d,
838 F.3d 1071 (11th Cir. 2016), cert. denied, U.S. , 137 S. Ct. 1436,
197 L. Ed. 2d 649 (2017); Beretta U.S.A. Corp. v. Federal Ins. Co., 117 F.
Supp. 2d 489, 492 (D. Md. 2000) (whether products hazard liability exclusion
in commercial general liability policy relieved insurer of duty to defend and
indemnify firearms manufacturer against claims of violations of state unfair
trade practices statutes arising from ‘‘deceptive marketing and advertising
of its products, by promoting the false notion that gun ownership and
possession of handguns in the home increases one’s security’’), aff’d, 17
Fed. Appx. 250 (4th Cir. 2001); People v. Arcadia Machine & Tool, Inc.,
Docket No. 4095 (VPD), 2003 WL 21184117, *26 (Cal. Super. April 10, 2003)
(denying summary judgment in pre-arms act case on claim that Ohio gun
distributor engaged in deceptive advertising ‘‘by advertising banned assault
weapons in a manner that is likely to mislead potential California purchasers
to believe that purchase and possession of such weapons is lawful, thereby
creating an illegal market for such firearms in California’’), aff’d sub nom.
In re Firearm Cases, 126 Cal. App. 4th 959, 24 Cal. Rptr. 3d 659 (2005);
American Shooting Sports Council, Inc. v. Attorney General, 429 Mass.
871, 882, 711 N.E.2d 899 (1999) (‘‘[T]he Attorney General’s regulatory author-
ity under [state unfair trade practices act] regarding defective products is
not limited to marketing and disclosure issues as the plaintiffs contend. His
authority properly extends to regulating the sale of a product as unfair or
deceptive when the product is defective in ways which a purchaser would
not anticipate or the product is not as warranted, and to regulating in a
manner which coordinates [unfair trade practices] liability with legislation
declaring certain acts unlawful.’’); Opinions, N.M. Atty. Gen. No. 77-23 (July
19, 1977) p. 149 (‘‘There is nothing in [statute prohibiting carrying of firearms
in liquor establishment] which makes it unlawful to advertise the sale of
firearms in a liquor establishment, but since the liquor establishment cannot
sell firearms, the advertising of the sale of firearms in the liquor establish-
ment would constitute false advertising and an unfair or deceptive trade
practice. . . . Of course, this is not intended to mean that the advertising
of firearms as a general principle is forbidden in liquor establishments, but
that any business establishment could not advertise something that it does
not sell since that would be in violation of the statutes cited.’’ [Citations
omitted.]).
The majority’s reliance on two Connecticut cases, namely, Ganim v.
Smith & Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001), and Salomonson
v. Billistics, Inc., Superior Court, judicial district of New London, Docket
No. CV-88-508292 (September 27, 1991), for the proposition that CUTPA has
been previously applied to the sale and marketing of firearms is similarly
unavailing. As the majority recognizes, this court’s decision in Ganim was
limited to a conclusion that municipalities lacked standing to pursue claims
against firearms manufacturers and sellers for harms arising from gun vio-
lence. Ganim v. Smith & Wesson Corp., 365. Indeed, the court specifically
declined to address the substantive legal issues presented in that case,
including whether firearms manufacturers and sellers may be held liable
under CUTPA for ‘‘unfair and deceptive advertising’’ and ‘‘unfair and decep-
tive sales practices,’’ as supported by allegations that the firearms manufac-
turers and dealers ‘‘marketed and sold their handguns in a manner that
causes harm to individuals, especially young children in Bridgeport; mar-
keted and sold their handguns in a manner that contributes to homicides,
suicides and accidental deaths in Bridgeport; and engaged in a campaign
of misrepresentation concerning the dangers of their handguns’’ and that
they ‘‘sell excessive numbers of guns to individual buyers, knowing or having
reason to know that some or all of those guns are not for personal use, and
are likely to be resold illegally and used to commit crimes; and sell guns
that fail to incorporate feasible safety devices that would prevent misuse
by unauthorized and unintended users.’’ Id., 334–36. Accordingly, this court’s
decision in Ganim about the plaintiffs’ standing in that case has absolutely
no precedential value with respect to the viability of a CUTPA claim founded
on the ‘‘immoral advertising’’ of firearms.
The Superior Court’s decision in Salomonson is even more inapposite
than Ganim. Salomonson, which is a report of an attorney trial referee
rather than a decision of a judge of the Superior Court, does not involve
crime or victims of crime, but instead is a routine business dispute, in which
the court held that a gun fabricator violated CUTPA by failing to perform
under a contract to convert three semi-automatic rifles to fully automatic
weapons, including by obtaining necessary federal regulatory approvals.
See Salomonson v. Billistics, Inc., supra, Superior Court, Docket No. CV-
88-508292.
26
The majority speculates about what Congress would have intended
with respect to preemption in relation to an elaborate hypothetical about
a ‘‘terrible crime like the ones involved in the Sandy Hook massacre’’ perpe-
trated by a ‘‘troubled young man’’ who had watched a firearms seller’s
‘‘explicit advertisements depicting and glorifying school shootings, and pro-
mot[ing] its products in video games, such as ‘School Shooting,’ that glorify
and reward such unlawful conduct.’’ The majority posits that ‘‘even the most
ardent sponsors of [the arms act] would not have wanted to bar a consumer
protection lawsuit seeking to hold the supplier accountable for the injuries
wrought by such unscrupulous marketing practices.’’ The majority then
observes ‘‘that is not this case, and yet the underlying legal principles are
no different. Once we accept the premise that Congress did not intend to
immunize firearms suppliers who engage in truly unethical and irresponsible
marketing practices promoting criminal conduct, and given that statutes
such as CUTPA are the only means available to address those types of
wrongs, it falls to a jury to decide whether the promotional schemes alleged
in the present case rise to the level of illegal trade practices and whether
fault for the tragedy can be laid at their feet.’’ I do not share the majority’s
apparent optimism about the 109th Congress, which passed the arms act;
specifically, until those who ply their judicial craft at One First Street tell
me differently, I do not believe that they would have been inclined to
allow the use of a broadly drafted statute like CUTPA to hold a firearm
manufacturer or seller involved in such a hypothetical liable for anything
more than thoughts and prayers. Put differently, the arms act would preempt
recourse unless the immoral and repugnant practices described by the major-
ity violated a statute or regulation specifically governing the manner in
which firearms may be advertised or marketed, as opposed to a more broadly
applicable statute like CUTPA.
27
I emphasize that my conclusion is limited to CUTPA claims that do not
rely on firearms-specific statutes as their source of public policy, insofar
as I conclude only that CUTPA itself is not a predicate statute. Put differently,
I do not conclude that the arms act preempts all CUTPA causes of action,
but only that the predicate exception does not save those that do not allege
the violation of a firearms-specific regulation or statute. See Ileto v. Glock,
Inc., supra, 565 F.3d 1133 (noting distinction between right of action and
predicate statute for purposes of arms act); cf. Sturm v. Harb Development,
LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010) (‘‘[a]lthough CUTPA is primarily
a statutory cause of action . . . it equally is recognized that CUTPA claims
may arise from underlying causes of action, such as contract violations or
torts, provided the additional CUTPA elements are pleaded’’ [citation
omitted]).