LANGUAGE

Gallagher v. City of Clayton, et al.

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.