2012-11-08 WSJ: “Appeals Court Rejects Challenge to Outdoor Smoking Ban”

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I’m grateful for this recent article being brought to my attention, together with the actual Gallagher v Clayton appeal ruling 11-8-12. The article reproduced below describes the conclusion of a long-running legal effort by Clayton attorney, Bevis Schock, and the cigar-smoking plaintiff, Arthur Gallagher, he recruited, to overturn Clayton’s ordinance making its parks smokefree. The original verdict by St. Louis-based U.S. District Judge Charles A. Shaw upholding the ordinance was featured in the mogasp blog 2011-12-13 P-D: “Challenge to Clayton outdoor smoking ban rejected.”

It’s good to finally reach closure on this issue, and for the City of Clayton to prevail in its efforts to protect the public health and welfare, both indoors, as well as outdoors in city-controlled parks.

Gallagher and his legal team puff tobacco smoke into Shaw Park for a reporter

Appeals Court Rejects Challenge to Outdoor Smoking Ban
Joe Palazzolo
November 8, 2012
Wall Street Journal – Law Blog

Legal challenges to indoor smoking bans have failed. But prohibitions on smoking in outdoor areas are churning in the courts. Which brings us to Clayton, Mo., a city that borders St. Louis.
         Arthur Gallagher, an avid outdoor smoker, sued Clayton in 2011, claiming a ban on smoking in city parks it had enacted a year earlier was unconstitutional. (Several other cities, including New York, have similar bans.) He asked the federal courts to recognize smoking as a fundamental right and argued that any law restricting tobacco use deserves the utmost scrutiny from judges.
         On Thursday, the St. Louis-based U.S. Court of Appeals for the Eighth Circuit declined to recognize a right to smoke and held that Clayton had a rational basis to restrict smoking in parks — namely, to preserve and protect the health, safety and welfare of the public.
         Mr. Gallagher had argued that the ordinance unfairly targeted smokers but failed to address other sources of air pollution, such as smoke from barbeques or exhaust from nearby vehicles. He also argued that no member of the public could be harmed by secondhand smoke outdoors, because it dissipates in the air.
         Clayton relied on a number of studies in enacting the law, including a report of the U.S. Surgeon General indicating “there is no risk-free level of exposure to secondhand smoke,” the Eighth Circuit noted, in an opinion by Chief Judge William Riley.
         “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,” Judge Riley wrote.
         Bevis Schock, who represents Mr. Gallagher, disputed whether the city could have reasonably believed that secondhand smoke outdoors causes harm, given the dearth of research on the subject.
         (One of the few studies found that nonsmokers who visited outdoor restaurants and bars where smoking was allowed had elevated levels of tobacco-related chemicals in the body compared with people at a smoke-free control site.)
         “People who smoke are pariahs in polite, sophisticated society, but people in the lower rungs of society smoke all the time,” he said. “There is a class warfare element to this thing that is unattractive, and we’re pushing for liberty.”
         The Eighth Circuit ruling affirmed an earlier decision by U.S. District Judge Charles A. Shaw in St. Louis.
         “We’re very pleased that court has affirmed our ordinance,” said Kevin O’Keefe, a lawyer for the city. “We think it was appropriately and properly drafted and serves important public health and community enrichment purposes.”

2 responses to “2012-11-08 WSJ: “Appeals Court Rejects Challenge to Outdoor Smoking Ban”

  1. Smoking a fundamental right? Don’t think so. Tobacco smoke poisons the air others need to breathe, even if outside.The moment tobacco fumes from a nearby smoker enter your lungs willy-nilly you got chemical poisons on their way to your blood. Endangering the health of others is not a fundamental right.

  2. Horacio, when you BREATHE you are poisoning the air that I need to breathe, even if outside. Your respiratory excretions are just as repugnant and poison-filled as your urinary, defecatory, and perspiratory excretions. The moment your exhaled metabolic waste products enter my lungs willy-nilly I’ve got chemical poisons (as well as all manner of uncounted and unknown potentially lethal pathogens) on the way to my blood. Endangering my health is not a fundamental right.

    Of course if I worried about such stuff and actually spent energy trying to avoid being closer than 20 feet to people because I was worrying about their secondhand breath I’d be a crazy person.

    So that’s why I don’t worry about such things. Horacio, I’d suggest you read up on ASDS (AntiSmokers’ Dysfunction Syndrome) at:


    Stephanie Stahl offers some helpful guidelines for recovery.


    mogasp comment: I’ve never heard of secondhand breath being an issue for human beings.

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