Make your own free website on Tripod.com
Prison Pure Air Cases
Setting Precedents Helping All Nonsmokers

Society at large is becoming concerned about cigarette effects. This concern includes prisons.
Such exposure is unconstitutional "cruel and unusual punishment." Either or both groups, individually or jointly, can seek the "right to fresh and pure air," i.e., smoke-free situations.

This site lists precedents of such actions. (Input is invited for including any and all additional cases of which you may be aware, which have been inadvertently omitted.) References are to laws and constitutional issues applicable everywhere in the U.S.A.. Of course, you should also consult any state or local laws, but where they are weak and do not protect your health, the federal and constitutional pure air and safety principles typically have precedence, and offer more protection.

This site has links to precedents going back centuries, giving perhaps more background then you need in your specific situation. So feel free to pick and choose whatever is relevant to your situation.

Five-Part Site Index
References
Background Cases
Cases By Prison Workers
Cases by Prison Inmates
Commentary

Recommended Introductory
Background Reading/References
Toxic Tobacco Smoke (TTS) Chemicals
Common Law Fresh and Pure Air Cases
Cigarette Effects Overview
Coumarin, An Adulterant of Cigarettes
Pertinent Fundamental Legal Terms
Data on Who Commits Crimes, and Why
Confederates and Crime Causation
Prisons As Workplaces: Sample Issues
Private Sector Housing Cases
Partial Bans Are Unconstitutional

BACKGROUND CASES

1. Kendrick v Adamson, 51 Ga App 402; 180 SE 647 (15 June 1935) (smoker jailed with cigarettes was negligently left drunk, thus was burned to death for foreseeable resultant mattress fire)

2. Ward v State of Texas, 158 SW2d 516 (Tex Cr App, 18 June 1941) (issues including being "burned by lighted cigarettes being applied to his body," p 518, to extort confession to crime)

3. Ward v State of Texas, 316 US 547; 62 S Ct 1139; 86 L Ed 1663 (1 June 1942) (issues including burning suspect with cigarettes to extort confession to crime) SCB: 158 SW2d 516

4. Thomas v Williams, 105 Ga App 321; 124 SE2d 409 (15 Feb 1962) (smoker jailed with cigarettes was negligently left drunk and partly unconscious, thus was burned to death for foreseeable resultant mattress fire)

5. People v Portelli, 15 NY2d 235; 205 NE2d 857; 257 NYS2d 931 (11 March 1965) (a case wherein according to the Miranda decision, "the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party," an incident helping lead to the famous Miranda decision requiring police to tell suspects their rights, one of the incidents wherein cigarette factors impact American law concepts)

6. Miranda v Arizona, 384 US 436; 86 S Ct 602; 16 L Ed 2d 694 (13 June 1966) (the famous case ordering police to read suspects their rights, citing as one example of police abuses, the 1965 Portelli case wherein "the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party") (You may also want to review the history of law manipulations for ulterior motives.)

7. Preiser v Rodriguez, 456 F2d (CA 2, NY, 1972) rev'd 411 US 475; 93 S Ct 1827; 36 L Ed 2d 439 (NY, 7 May 1973) (in the "cigar-smoking S. O. B." case, prisoners are limited to the habeas corpus act to secure freedom when retaliated against without notice, and cannot use the civil rights act 42 USC § 1983)

8. Porter v County of Cook, 42 Ill App 3d 287; 355 NE2d 561 (7 Sep 1976) (cigarette-fire injury damages case; mentally ill smoker confined to jail with his cigarettes, burned in resultant fire, due to his hallucinating that smoke would drive away the voices he was hearing)


Prison Employees and Guards Begin Asking For Smoking Bans
(See Employee Smoke-Free Rights Cases)

1. Bond v Sheahan, 152 F Supp 2d 1055 (D ND Ill., 19 July 2001) (provide smoke-free air for officer in prison)

2. Zimmerman v Dept of Corrections, 2002 Mich App LEXIS 1419; 2002 Mich App LEXIS 31310162 (Mich App, 15 Oct 2002) (smoke-free air rights case filed by corrections officer)


(Input from Readers Invited So More
Precedents Of This Type Can Be Added)



Prisoners Begin Asking For Enforcement of
the Right to Pure Air (aka Smoking Bans)

1. Hummer v Dalton, 657 F2d 621 (CA 4, Va, 26 Aug 1981)

2. Franklin v State of Oregon, 662 F2d 1337 (CA 9, 7 Dec 1981)

3. Melancon v Brown & Williamson Tobacco Corp, 621 F Supp 567 (WD Ky, Louisville Div, 7 Nov 1985) (dangerous tobacco case, alleging smoker injury from rolled tobacco lacking warning label)

4. Jeffries v Reed, 631 F Supp 1212 (ED Wash, 27 March 1986) (one of a number of cases upholding a challenged smoking ban as not unconstitutional, smoking does not involve "necessities of life," the same concept as in State v Ohmer, 34 Mo App 115 [1889]!)

5. Lee v Carlson, 645 F Supp 1430 (D SD NY, 14 Oct 1986)

6. Beeson v Johnson, 668 F Supp 498 (ED NC, 12 Aug 1987) rev in part 894 F2d 401

7. Avery v Powell, 695 F Supp 632; 3.9 TPLR 2.191 (D NH, 29 Aug 1988) (involuntary smoking, i.e., forced exposure to TTS is unconstitutional, cruel and unusual punishment)

8. Reysack v State, 440 NW2d 392 (Iowa, 17 May 1989) (upholding a challenged ban on loitering for smoking purposes)

9. Doughty v Board of County Com'rs for County of Weld, State of Colorado, 731 F Supp 423, 424 (D Col, 5 June 1989) (upholding a challenged smoking ban as not unconstitutional, and not a due process matter; instead it protects the rights and health of employees and inmates, eliminates potential fire hazards; promotes a clean living environment; segregation, i.e., designated areas, are not applicable as a total ban is valid; and segregation interferes with jail operations, and would be unhealthful as the ventilation system was unable to remove smoke; a total ban reduces costs) [See ALR Context].

10. Beeson v Johnson, 894 F2d 401 (CA 4, 2 Jan 1990). SCB: 668 F Supp 498

11. Caldwell v Quinlan, 729 F Supp 4 (D DC, 25 Jan 1990) (request for regulation to enforce the already existing common law "right to fresh and pure air against TTS)

12. Grass v Sargent, 903 F2d 1206 (CA 8, 29 May 1990) (upholding a challenged smoking ban as not unconstitutional; there is no right to smoke; the case is baseless and asserts nothing but the infringement of a nonexistent legal interest; smoking is not one of "life's necessities," the same concept as in State v Ohmer, 34 Mo App 115 [1889]!)

13. Elliott v Board of Weld County Com'rs, 796 P2d 71 (Colorado App, 5 July 1990) (upholding a challenged smoking ban; smoking is not a constitutional right, nor an equal protection nor a due process matter; there is no obligation to set aside an area for smoking. Of course, all locations must be safe and not causing unlawful death)

14. Caldwell v Quinlan, US App DC; 923 F2d 200 (25 Jan 1991) (aff'g mem, re segregating smoking/nonsmoking inmates). SCB: 729 F Supp 4

15. McKinney v Anderson, 924 F2d 1500, 1507 n 21 (CA 9, 1 Feb 1991) (involuntary forced exposure to TTS as unconstitutional; criminals are 90% smokers)

16. Steading v Thompson, 941 F2d 498 (CA 7, 19 Aug 1991)
David Dines, 12 Gay St, Rcklnd 04841 594-0692 v Jail (Knox Cnty, 1991) (nsmkr mbr of public ±$50K for injury passing by, smoked at)
17. Helling v McKinney, 502 US 903; 112 S Ct 291; 116 L Ed 2d 236 (15 Oct 1991). SCB: 924 F2d 1500

18. Helling v McKinney, 502 US 1070; 112 S Ct 963; 117 L Ed 2d 129 (27 Jan 1992). SCB: 924 F2d 1500

19. McKinney v Anderson, 959 F2d 853 (CA 9, Nev, 27 March 1992)

20. Washington v Tinsley, 809 F Supp 504 (SD Texas, 16 December 1992) (upholding a challenged city smoking ban and confiscation of tobacco products of pre-trial detainees, as not unconstitutional, not punishment, but rather taking of contraband, and a protection of employees and others from the health and fire hazards, a litter and ash reduction, and enablement of guards to better smell contraband; jails are public buildings as they are used for a governmental purpose; the city rule controlled the conunty building; it is nondiscriminatory even if some local judges foolishly asserted the superiority of their addiction over the rule of law; admittedly smokers being deprived of smoking can be foreseeably dangerous, but the response is better control, even to force) (Be advised that hiring judges who smoke is negligence)

21. Stanfield v Hay, 849 SW2d 551 (Ky App, 28 Aug and 13 Nov 1992) (upholding a challenged smoking ban; smoking is not a constitutional right; smoking is hazardous to self and others around, and a fire hazard, wherefore a ban provides a clean, safe facility; a ban is not punishment) (Actually, smoking is a recognized disease; the court grossly erred by calling this ultra-hazardous disease, with resultant ultra-high deaths at the holocaust-level, a privilege!!.)

22. Hunt v Reynolds, 974 F2d 734 (CA 6, 10 Sep 1992) (cited serious medical needs for smoke-free air)

23. Helling v McKinney, 509 US 25; 113 S Ct 2475; 125 L Ed 2d 22 (18 June 1993) (the TTS health risk is an 8th Amendment issue, potentially rendering cigarette smoking as cruel and unusal punishment to persons adversely affected)

24. Helling v McKinney, 5 F3d 365 (CA 9, 16 September 1993) (remanding Supreme Court decision to District Court)

25. Reynolds v Bucks, 833 F Supp 518 (ED Pa, 1 Oct 1993) (upholding a challenged smoking ban; rejecting an equal protection claim; smoking bans are not unconstitutional; of course not, they are enforcing the Ninth Amendment "right to fresh and pure air"; the court failed to specify that smoking guards were themselves dangerous drug addicts and thus had been negligently hired, so and should be forthwith fired pursuant to precedents)

26. Johnson v Laham, 9 F3d 1543; 1993 WL 469160 (CA 4, Md, 15 Nov 1993) table (no constitutional right to smoke)

27. Beauchamp v Sullivan, 21 F3d 789 (CA 7, 21 March 1994) (upholding a challenged smoking ban as not unconstitutional; as freedom from TTS is a constitutional right, enforced by the Supreme Court in Helling v McKinney, 509 US 25 (CA 9, 1993), enforcing that right can hardly be deemed unconstitutional!! Case objecting to the smoking ban is rightly dismissed as frivolous)

28. State ex rel Kincaid v Parsons, 191 W Va 608; 447 SE2d 543 (14 July 1994) (issues of due process and reasonable accommodation)

29. Shockey v Winfield, 97 Ohio App 3d 409; 646 NE2d 911 (16 Nov 1994) (upholding a challenged smoking ban, rejecting an equal protection claim; a smoking ban maintains safety) (The court overlooked the fact that hiring smoking guards is negligence)

30. Women Prisoners of District of Columbia Dep't of Corrections v District of Columbia, 877 F Supp 634; 98 Ed Law Rep 681 (D DC, 13 Dec 1994) vacated / modified in part on other grounds 899 F Supp 659; 104 Ed Law Rep 213 (DC, 14 Aug 1995) remanded on other grounds, 320 US App DC 247; 93 F3d 910; 113 Ed Law Rep 30 (30 Aug 1996) reh den (14 Nov 1996) cert den 520 US 1196; 117 S Ct 1552; 137 L Ed 2d 701; 1997 US LEXIS 2686 (28 April 1997) (upholding a challenged smoking ban, a ban is not an equal protection violation; smoking is not consistent with anti-substance abuse action)

31. George L. Weaver v Harold W. Clarke, 45 F3d 1253 (30 Jan 1995) (w)

32. Jarrett v Westchester County Dep't of Health, 166 Misc 2d 777; 638 NYS2d 269 (27 Feb 1995) (upholding a challenged smoking ban; stay of smoking ban denied; a smoking ban is not an equal protection violation; there is no fundamental right to smoke any more than to consume alcohol; a ban indoors and outdoors protects people from TTS and its adverse effects)

33. Crawford County v Pennsylvania Labor Relations Board, 659 A2d 1078 (26 May 1995) app gr 542 Pa 676; 668 A2d 1138 (1995) app dism as improvidently granted 543 Pa 482; 672 A2d 1318 (1996) (background contrasting how competent adjudicators decide)

34. Goffman v Gross, Case 94-1738, 59 F3d 668 (CA 7, SD Illinois, 6 July 1995) (smoker with lung cancer, smoke-free prison case)

35. Austin v Lehman, 893 F Supp 448 (ED Pa, 6 July 1995) (smoking ban ok as punishment for rule violation)

36. Edward A. Loetel v James A. Gannon, Case 95-2290 (CA 8, ED Missouri, 10 Jan 1996) (prison case, second-hand smoke cruel and unusual punishment case)

37. Jarrett v Westchester County Dep't of Health, 169 Misc 2d 320; 646 NYS2d 2239 (24 Jan 1996) (a challenged smoking ban is not an equal protection matter; there is no constitutional right to smoke; so upholding a rule requiring every indoor workplace to be smoke-free, and forbidding possession and sale of smoking materials; there is no no constitutional right to smoke)

38. Michael Jenner v Warden Joe Class, Case 95-1941, 79 F3d 736 (CA 8, D South Dakota, 1 April 1996) (habeas corpus case, cigarette evidence in murder case, allegation lawyer failed to show Jenner as a nonsmoker, court said it wouldn't change outcome)

39. Jackson v Burns, 89 F3d 850 (CA 10, 28 June 1996) (upholding a challenged smoking ban; there is no constitutional right to smoke; banning smoking is not unconstitutional; on the contrary, see the constitutional duty to the contrary upheld in Court in Helling v McKinney, 509 US 25 (CA 9, 1993)

40. Michael Jenner v Warden Joe Class, 519 US 874; 117 S Ct 194; 136 L Ed 2d 131 (7 Oct 1996). SCB: 79 F3d 736

41. State ex rel White v Parsons, 199 W Va 1; 483 SE2d 1; 66 ALR5th 737 (9 Dec 1996) (issues of due process, pre-trial detainees vs convicted inmates, and inconsistent treatment of similarly situated parties)

42. Crowder v District of Columbia, 959 F Supp 6 (D DC, 18 March 1997) (order enforcing non-smoking rules and all steps necessary to assign non-smoking sleeping quarters)

43. Thomas v American Tobacco Co, 173 FRD 546 (MD Ga, 20 June 1997) (prisoner case)

44. House of Corrections Block Representatives Comm v Creamer, 1998 WL 242663; 1998 US Dist LEXIS 6056 (ED Pa, 30 April 1998) (smoking ban is not unconstitutional, nor a freedom of expression violation; a ban promotes health and safety of all on-site and forestalls complaints and litigation from nonsmokers; banning cigarettes and smoking paraphernalia prevents fires and thus protects lives and property; there is no fundamental / constitutional right to smoke; a ban constitutes no deprivation of life, liberty or property without due process) (Compare private sector decisions)

45. Michael Jenner v Warden Joe Class, 519 US 874; 117 S Ct 194; 136 L Ed 2d 131 (7 Oct 1998). SCB: 79 F3d 736

46. Atkinson v Taylor, et al., 316 F3d 257 (CA 3, Delaware, 21 January 2001) (smoke-free right is clear as of 1993, p 263)

47. Reilly v Grayson, 157 F Supp 2d 762 (ED MI, 22 June 2001)

48. Alvarado v Litscher, et al., 267 F3d 648 (CA 7, Wisconsin, 28 September 2001) (threat to future health)

49. Jamie Reilly v [State of Michigan] Henry Grayson, Chris Daniels, and Joseph Cross, 2002 FED App 0397P; 310 F3d 519 (CA 6, 18 Nov 2002). SCB: 157 F Supp 2d 762

50. William Faulkner v George Jones (D. Wisc. 2004)


See also
  • (a) Civil Liability of Prison or Jail Authorities for Self-Inflicted Injury of Death of Prisoner, 79 ALR3d 1210, § 3, 4[a], 5, 6[a] (20 Sep 1977); and

  • (b) Validity, Construction, and Application of Restrictions on the Use or Possession of Tobacco Products in Correctional Facilities, 66 ALR5th 237-268 (24 April 1999).



Smoker Prisoners Unsuccessfully Objecting to Smoking Bans

1. Washington v Tinsley, 809 F Supp 504 (SD Tex, 1992)

2. Harvey v Foote, 92 F3d 1192; 1996 WL 441776 (CA 9, Oregon, 5 August 1996)

3. Cruiess v Matty, 1987 WL 13348 (ED Pa, 1 July 1987) (smoking ban ok as punishment for rule violation)

4. Alley v State, 1997 WL 695590 (D Kansas, 15 Oct 1997) (upholding smoking ban ordered by Governor 1 July 1995; a smoker with suicidal, drug abuse, alcoholism record, challenged it; smoking ban is not unconstitutional, not punishment, not a bill of atttainder, and not ex post facto)

5. Webber v Crabtree, 158 F3d 460 (CA 9, Oregon, 8 Oct 1998) (smoking ban does not violate equal protection rights; a ban protects health and safety by providing clean air; smoker inmates "failed to show that smoking is a fundamental right"; court must follow regulation vs agency interpretation)

6. Johnson v Saffle, 166 F3d 1221; 1998 WL 792071; 98 CJAR 5315 (CA 10, 15 Oct 1998) (opposition to smoking ban as unconstitutional is frivolous and to be dismissed). SCB: 12 May 1998

7. Hills v Stewart, 199 F3d 1332; 1999 WL 970804 (CA 9, Ariz, 22 Oct 1999) table (no constitutional right to smoke)

8. Daniel Brashear v Simms, 138 F Supp 2d 693 (D Md, Frederick N. Smallkin, 12 April 2001) (no ADA or constitutional right to smoke; so is no basis to overrule the prison anti-tobacco policy; the law "could not possibly have intended the absurd result of including smoking within the definition of disability," lest about 30% of Americans be deemed "handicapped" merely due to their status as smokers).


Commentary

      The U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book entitled Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p v (December 1977), said:

"Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would."

      A few years earlier, the Royal College of Physicians of London, in its book, Smoking and Health Now (London: Pitman Medical and Scientific Publishing Co, 1971), p 9, had already declared the smoking-caused death toll to be a "holocaust" due to the then "annual death toll of some 27,500." If 27,500 deaths is a "holocaust," and it is, what is the word for 37 million deaths?

This holocaust level of tobacco-caused deaths was already known by 1836. By then, it was already well-established "that thousands and tens of thousands die of diseases of the lungs generally brought on by tobacco smoking. . . . How is it possible to be otherwise? Tobacco is a poison. A man will die of an infusion of tobacco as of a shot through the head." —Samuel Green, New England Almanack and Farmer's Friend (1836).

          Cigarettes have toxic chemicals and have a record of containing a dangerous poisonous additive, coumarin used for rat poison. Wherefore, by definition, cigarette emissions violate the legal "right to fresh and pure air," and are illegal everywhere.

          To the extent that workplace issues are involved (prisons are workplaces, so required to be safe for the workers), the Occupational Safety and Health Act of 1970, 29 USC § 651 - § 678 forbids hazards. Rules such as 29 CFR § 1910.1000 provide specific examples of hazards such as carbon monoxide (limit of 50 parts per million, whereas tobacco smoking produces 42,000 ppm). An employer has a duty to prevent and suppress hazardous conduct by employees. National Realty and Construction Co, Inc v Occupational Safety and Health Review Commission, 160 US App DC 133, 489 F2d 1257, 1266, n 36 (CA DC, 1973).


All people are entitled to the "right to fresh and pure air." In addition, all employees, for example, the prison guards, are entitled to safe working conditions. See worker safety rights cases,

Management has a record of ignoring employee rights in this regard. So cases by workers in any occupation, or by persons as herein, are in essence "private attorney general" cases ("not for himself alone [or at all] but [for others] as a 'private attorney general' vindicating a policy that [the common and safety laws] considered of the highest priority," Newman v Piggie Park Enterprises, 390 US 400; 88 S Ct 964, 966; 19 L Ed 2d 1263, 1265 [1969]) to enforce the dual rights, (a) pure air for all, and (b) safe working conditions for employees, thereby having as a byproduct, safety for themselves.

"If you poison your boss [fellow human] a little bit each day it's called murder; if your boss [or nearby smoker] poisons you a little each day it's called a Threshold Limit Value. —James P. Keogh, M.D." cited by Prof. Robert N. Proctor, Cancer Wars: How Politics Shapes What We Know and Don't Know About Cancer (New York: Basic Books, 1995), p 153.

OTHER RELATED SITES TRACING
HISTORY OF THE TOBACCO HAZARD
Tobacco's Toxic Chemicals
House Report on Cigarettes - 1889
Tennessee's 1897 Cigarette Ban
Iowa's 1897 Cigarette Ban
Michigan's 1909 Cigarette Ban
Edison's 1914 Analysis of Cigarettes
1925 Data Linking Tobacco and Cancer
Tobacco Addiction Data 1527 - Present
U.S. Supreme Court Tobacco Cases
Federal Circuit Court Tobacco Cases
Dangerous Tobacco Cases

Smoking has the same percentage relation to crime as to lung cancer, alcoholism, and suicide, meaning, about 90% of each is by smokers. So it sets a bad example for it to be occurring in any governmental institution, much less, a prison.

Smoking leads to illicit drugs, another factor in crime. Hospitals do not allow smoking, the 90% factor in so many conditions treated at hospitals; likewise, prisons and jails are to not allow it, the 90% factor there too.

Moreover, pursuant to the common law, and case law against unlawful deaths, etc., smoking is unlawful. Prison officials should set an example, not themselves be aiding and abetting unlawful actions. They and courts must avoid the trap of thinking that smoking bans involve people being "adversely affected"! Not so, their lives are being saved from death by toxic chemicals, poisons.

Not banning smoking costs the taxpayers money. Bans save money. Smoking in prisons in costly. Smoke-injured prisoners and staff need expensive medical care, for various tobacco effects. Taxpayers pay, both by increased taxes, and by increased insurance rates. Raise the issue with your officials. Ask them how much smoking costs taxpayers!

Crimes cost society (you, me, us) about one trillion dollars ($1,000,000,000,000.00).—David A. Anderson, "The Aggregate Burden of Crime, 42 Journal of Law and Economics (#2) 611-642 (Oct 1999) ("The net annual burden of crime is found to exceed $1 trillion"). As 90% of criminals are smokers, the 90% smoker share is thus over $900 billion.

When they smoke in prison, more bills, medical bills, come to taxpayers: for the smokers' conditions, and for those of the nonsmokers around, being unconstitutionally forced to breath poisoned air.

Be aware that judges tend to oppose cases seeking enforcement of the common law and worker safety law, for the reason that judges are well aware of the data (since the 1830's) showing that most crimes are by smokers.

Guard and prisoner smoke-free air cases, law enforcement worker cases, and worker safety law cases, each call attention to this prevalence, a quite lucrative one in terms of creating a vastly increased judiciary job base.

So judges often call pure air common law and worker safety law enforcement cases, "accommodation" cases, for the specific purpose of reducing the legal duty from "absolute" across-the-board, down to the low one of merely whatever they like to claim is "reasonable" case-by-case. The purpose is, of course, obvious, to deny the request for enforcement of the common law and safety law.

If you have a case, be alert for this judicial scam.

For Further Reading
Tod W. Burke, "Up in Smoke: Secondhand Smoke Health Risks Have Staff and Inmates Fuming," 52 Corrections Today 152 (July 1990)
Kenneth Lowe,"Smoking ban working in prisons, say guards, officials," Journal Gazette and Times-Courier (23 April 2008). "Five months after the statewide smoking ban forced all Illinois inmates to quit cold turkey, naysayers predictions of doom have yet to come true, said prison officials."

          A further explanation will be provided, with additions or deletions as appropriate, when practicable. To submit input or make inquiry, email the webmaster.



We care about cigarette effects endangering you.

Copyright © 2000 The Crime Prevention Group