In this appeal, the 8th Circuit Court of Appeals affirmed the ruling of the District Court dismissing the claims by the Plaintiff challenging a city ordinance banning smoking in city parks. The plaintiff, a person who “ecstatically” smoked in the parks, argued that his rights under the U.S. and Missouri constitutions were violated by the smoking ban. The court held that smoking is not a fundamental right and thus the law does not require strict scrutiny review, nor does it require intermediate scrutiny because smokers are not a suspect class. The court also found the purpose of protection of public health cited by the city as sufficient to survive the challenge under a rational basis review. While lacking the basic requirements of the plaintiff’s further constitutional challenges, the court held his complaint was “facially implausible” and thus was properly dismissed before trial by the lower court.
Plaintiff's petition for a writ of certiorari to the Supreme Court of the United States was denied without comment on May 13, 2013.
Gallagher v. City of Clayton, et al, No. 11-3880 (8th Cir. 2012).
United States
Nov 8, 2012
United States Court of Appeals for the 8th Circuit
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
A discussion on cultural attitudes around tobacco, specifically that tobacco use is an accepted part of the culture.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Gallagher next contends the City’s health-based rationale is plainly false because the dangers to the public from secondhand smoke in outdoor areas are minimal due to dissipation of smoke through the air that no member of the public could possibly be harmed. He also contends the studies relied upon by the Board are incorrect and distinguishable because the studies address indoor smoke exposure, not outdoor smoke exposure. Gallagher concedes rational basis review is deferential to the legislature, but maintains the standard of review is not “toothless” and “must find some footing in the realties of the subject addressed by the legislation.” Heller, 509 U.S. at 321; Mathews v. Lucas, 427 U.S. 495, 510 (1976). However, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Commc’ns, Inc., 508 U.S. at 315. Even “if the rationale for [the law] seems tenuous,” Romer, 517 U.S. at 632, the law survives rational basis review so long as “the legislative facts on which the [law] is apparently based could . . . reasonably be conceived to be true by the governmental decisionmaker.” Vance, 440 U.S. at 111. Gallagher’s contention that the City’s health-based justification fails rational basis review does not overcome the Ordinance’s “strong presumption of validity.” Heller, 509 U.S. at 319. The Board relied on a number of studies in enacting the Ordinance, including a report of the U.S. Surgeon General indicating “there is no risk-free level of exposure to secondhand smoke.” Although the Board could have engaged in “rational speculation unsupported by evidence or empirical data” that outdoor secondhand smoke exposure harms health, the Board went further and relied on reports that “could . . . reasonably be conceived to be true.” Beach Commc’ns, Inc., 508 U.S. at 315; Vance, 440 U.S. at 111. We need not determine whether outdoor secondhand smoke exposure actually causes harm. Because the City reasonably could believe this to be true, the Ordinance survives rational basis review."
"Unlike the suspect or quasi-suspect classifications of race, alienage, national origin, or gender, see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 40-41 (1985), we conclude that smokers do not share some immutable characteristic beyond their control and they do not require special protection by the courts because of vast discrimination against smokers or their political powerlessness. Nor could we plausibly find to the contrary based upon this complaint. Gallagher pled only a single fact in his complaint regarding smokers belonging to a suspect class—a reference to one advertisement describing smokers as “persecuted.” Because Gallagher did not plead facts plausibly indicating that smokers constitute a suspect or quasi-suspect class, the district court did not err in dismissing this claim. See Iqbal, 556 U.S. at 678."
"Gallagher proposes we declare smoking (1) a new fundamental right “because of tobacco’s ancient traditions in American history” or (2) a part of an established fundamental right to bodily integrity. He concedes, however, that “no court has adopted his position.” Turning to Gallagher’s first proposition, we have previously addressed a legislature’s ability to regulate smoking. In Steele v. County of Beltrami, Minn., 238 F. App’x 180 (8th Cir. 2007) (unpublished per curiam), we affirmed the district court’s dismissal of claims brought by plaintiffs alleging a county ordinance prohibiting smoking in indoor public places and places of work violated their rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments. See id. at 181-82. We noted the plaintiffs “fail[ed] to provide any sound legal argument or authorities supporting their claimed constitutional rights to smoke” and “no relevant authority support[ed] these rights under any theory.” Id. at 181. We concluded regulation of smoking was “better left to the people acting through legislative processes” than creating a “judicial remed[y]” in the United States Constitution. Id. (quoting Gasper v. La. Stadium & Exposition Dist., 418 F. Supp. 716, 722 (E.D. La. 1976)) (internal quotation marks omitted)."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
In this appeal, the 8th Circuit Court of Appeals affirmed the ruling of the District Court dismissing the claims by the Plaintiff challenging a city ordinance banning smoking in city parks. The plaintiff, a person who “ecstatically” smoked in the parks, argued that his rights under the U.S. and Missouri constitutions were violated by the smoking ban. The court held that smoking is not a fundamental right and thus the law does not require strict scrutiny review, nor does it require intermediate scrutiny because smokers are not a suspect class. The court also found the purpose of protection of public health cited by the city as sufficient to survive the challenge under a rational basis review. While lacking the basic requirements of the plaintiff’s further constitutional challenges, the court held his complaint was “facially implausible” and thus was properly dismissed before trial by the lower court.
Plaintiff's petition for a writ of certiorari to the Supreme Court of the United States was denied without comment on May 13, 2013.