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Is smoking in public park a constitutional right? Supreme Court refuses case

Arthur Gallagher, a smoker, challenged a ban on lighting up in city buildings, parks, and playgrounds in Clayton, Mo. The Supreme Court turned away the case Monday.

By Staff writer / May 13, 2013

In this file photo, a cigarette is extinguished in an ashtray in a downtown Chicago plaza.

Michael S. Green/AP/File

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The US Supreme Court declined on Monday to take up a case testing whether smokers have a constitutional right to light up in a public park.

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The high court turned aside the appeal without comment.

The question arose in a lawsuit filed against the City of Clayton, Mo., and its officials after the Board of Aldermen passed a 2010 ordinance prohibiting smoking in city buildings, parks, and playgrounds.

Arthur Gallagher, a smoker, sued the city and its officials claiming the ban violated a fundamental right to consume ignited tobacco. He said he was a regular visitor to city parks who “ecstatically enjoys smoking tobacco products while doing so.”

A federal judge and a federal appeals-court panel rejected Mr. Gallagher’s lawsuit.

“We decline Gallagher’s invitation to declare smoking a fundamental right,” the three-judge panel of the Eighth Circuit Court of Appeals said in its decision.

The court also rejected Gallagher’s argument that the city had no rational reason justifying a ban on smoking in an open-air park because secondhand smoke would quickly dissipate. No member of the public could possibly be harmed, Gallagher had insisted.

When the board enacted the ban, it cited public health and safety, litter reduction, and preserving the aesthetics of city property. (The city did not assert a desire to prevent fires as a reason to ban smoking in public buildings and parks, the appeals court noted.)

The board relied on a 1999 National Cancer Institute report that said secondhand smoke is responsible for the early deaths of 53,000 Americans each year, the appeals court said. The board also considered a 2006 report from the US surgeon general that concluded there was no risk-free level of exposure to secondhand smoke.

Gallagher said the reports addressed indoor secondhand smoke, not outdoor secondhand smoke.

The appeals court rejected Gallagher’s argument. To survive the relatively easy standard of rational basis review, the city must only show a plausible reason to justify the new ordinance.

“We need not determine whether outdoor secondhand smoke exposure actually causes harm,” the appeals court said. “Because the City reasonably could believe this to be true, the Ordinance survives rational basis review.”

The case was Gallagher v. City of Clayton (12-1122).

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