Partial Smoking Bans: Why
They Are Unconstitutional

         Tobacco is an "extremely harmful drug," says Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 5. Cigarettes contain and emit vast quantities of toxic chemicals far in excess of legal limits, especially carbon monoxide and cyanide. (Before continuing, please read that site on toxic chemicals, then return here.)

"'Every regular cigarette smoker is injured . . . Cigarette smoking kills some, makes others lung cripples, gives still others far more than their share of illness and loss of work days. Cigarette smoking is not a gamble; all regular cigarette smokers studied at autopsy show the effects.'" (Referenced, The FTC Report 1968, cited in A. A. White (Law Prof, Univ of Houston), "Strict Liability of Cigarette Manufacturers and assumption of Risk," 29 Louisiana Law Rev (#4) 589-625, at 607 n 85 (June 1969).

Their nature and impact are "ultrahazardous." So severe adverse effects include deaths are "natural and probable consequence" of exposure. Examples of medical findings on cigarette-related issues include:

ABORTION
ADDICTION
AIDS
ALCOHOLISM
ALZHEIMER'S
BIRTH DEFECTS 
BRAIN INJURY 
CRIME 
DANGEROUS CHEMICALS 
DRUGS
FIRES 
HEART DISEASE
HOMELESSNESS
HIRING DIFFICULTIES
LUNG CANCER
MACULAR DEGENERATION
REASONING IMPAIRMENT
SEAT BELT NONUSE
SIDS
SUICIDE

           Cigarette ingredients, emissions, and adverse consequences are matters of science and medicine. The term encompassing these ingredients, emissions, and adverse consequences is "Toxic Tobacco Smoke," TTS (or, sometimes, ETS). The U.S. Constitution has something to say about laws and ordinances passed on science matters. In fact, there has already been a constitutional issue case on a partial ban of TTS caused from cigarette smoking. That case is Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (1979). That case found that a limited no smoking law is unconstitutional.

Here is some background on why limited or partial smoking bans, for example, in homes, workplaces, malls, jails, prisons, restaurants, are unconstitutional. Only total bans are constitutional. The common law "right to fresh and pure air" applies everywhere, as does the law against causing unlawful deaths.

Partial bans are reminiscent of the Galileo situation. Invent a law that says the earth is flat! Invent a law that is not consistent with scientific research. Call this "reasonable" (a word in law to be distinguished from "scientifically accurate"). As the facts are different than that, the arbitrary and capricious concept of partial truth, vs total truth, dealing with the actual reality is unconstitutional on its face! That's the Galileo defense.

Understand that to politicians, it is "reasonable" to declare the earth flat. It is just not scientifically correct. For them, calling the earth flat is "reasonable" inasmuch as in any particular place, many places on the planet, it has that appearance, and calling it flat "works." For many practical purposes, to them, "flat" is "reasonable." But recognize, that "reasonable" is far too low a standard, allowing for what in science is in fact gross error.

The old flat earth argument against the round earth notion is still, to the uninformed, "reasonable." The round earth argument says the earth is about 24,000 miles around at the equator. The day is 24 hours long. Wherefore the earth at equator is spinning 1,000 mph.

Said the political flat earth advocates in rebuttal, 'the wind from that high a speed air blast would knock us all down. We find no such wind in nature. Wherefore the round earth advocates are in error. The earth IS flat!!' That is the politician "reasonableness" argument.

Some might say that since Galileo's time, governors, legislators, city councils, officials have gotten more sensible. Human nature among officials has magically changed. Government officials are all now scientists, have a Sc.D. degree, and ALL without exception adhere rigorously, solely and exclusively to what is scientifically determined, and THAT ONLY.

Oh, is that so? You believe that, see a psychiatrist right away! You need help!

Ah, you are a realist. You know that politicians (among whom have been bribe-takers, drunks and $200-an-hour whore customers) still invent assertions!! Nothing has changed since the Galileo case. Politicians still invent things! They invented a partial truth, "flat earth," now they invent "partial bans" -- another half way measure, constituting scientic / medical falsehood!

Fabrications contrary to medical, engineering or scientific fact do occur, and are regularly attempted in court. So there is a long line of case law on that subject. U.S. v Amaral, 488 F2d 1148 (CA 3, 1973); Richardson v Richardson v Richardson-Merrill, Inc, 273 US App DC 32; 857 F2d 823 (1988); Christophersen v Allied-Signal Corp, 939 F2d 1106 (CA 5, 1991); Brock v Merrell J. Dow Pharmaceuticals, Inc, 874 F2d 307 (CA 5, 1989); and eventually reaching the Supreme Court, Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct. 2786; 125 L Ed 2d 469 (28 June 1993).

On paper, in order to allow scientific evidence in support of a legal position, a judge must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation. In other words, politicians must act on real science fact, not their pet myths.

The Supreme Court in Daubert told judges to distinguish between real and courtroom science (e.g., claims that partial smoking bans are adequate to protect health). The effect is to require officials in their science and medicine claims, to adhere to the same standards of intellectual rigor that are demanded in normal science and medicine professional work. Cf. 113 S Ct at 2796-97; O'Conner v Commonwealth Edison Co, 13 F3d 1090, 1106-07 (CA 7, 1994).

If they do so adhere, their relevant claims are admissible even if the particular methods they have used in arriving at their opinion are not yet accepted as canonical in their branch of the scientific community. If they do not, their evidence is inadmissible no matter how imposing their credentials or big political titles. Regarding this test, even "an expert who supplies nothing but a bottom line supplies nothing of value to the judicial process. . . . [you] would not accept from . . . students or those who submit papers to [a professional] journal an essay containing neither facts nor reasons; why should a court rely on the sort of exposition the scholar would not tolerate in his professional life?" Mid-State Fertilizer Co v Exchange National Bank, 877 F2d 1333, 1339 (CA 7, 1989). Politicians who favor partial bans of course only supply a bottom-line, a phony one, devoid of reference to genuine medical and scientific fact. They ignore the inherent hazard.

The Constitution requires that laws be fact-based. A non-fact-based law violates due process. Why? Due process includes the notion that, on science and engineering issues and such type issues, only facts will be presented in court, not myth, not speculation. As partial bans are a scam, an arbitrary fiction, not at all effective in promoting health, there are no studies verifying that partial bans actually solve the problem!

Partial bans are not chosen pursuant to medical science, research, and recommendations. They are in fact, contrary to it. The bottom line is that they are ineffective as they are a non-science based arbitrary invention and fiction, without supporting scientific or medical evidence.

Remember, politicians (legislators, governors, council members) are NOT scientists and engineers, are not adhering to the scientific method of truth finding, and do not make their decisions based on science and engineering. Instead, they foreseeably make them on political bases and biases, errors, misunderstandings, etc. Politicians do not rigorously study professional journal writings, pass examinations on their understanding of them, nor even take professional under-oath testimony on the subject before they vote or act!

The resultant scam actions are foreseeably unconstitutional. The partial ban approach is following a non-medical-science-recommended approach, hence, an unconstitutional approach

The Legislature or Council cannot constitutionally, for example, order testing of the flatness of the earth! Why not? Because factually (by engineering and scientific evidence), the earth is not flat. Such a "partly flat" law would not be "fact-based," therefore it is on its face unconstitutional. (Judges are inherently aware of the fact the earth is not flat!! no evidence need be presented.) A 'flat earth' law is unconstitutional, agreed? even though there may seem to be, localized, some truth to it. But it is still wrong, scientifically. Total fact basis is mandatory pursuant to due process requirements. 100% truth, or it's unconstitutional. That's the standard, that's the constitutional requirement.

Medical researchers have already long tested chemicals including those in tobacco ingredients and cigarette smoke. They recognize that the chemicals in the tobacco combination are inherently dangerous. The legal term for their nature and effect is "ultrahazardous activity." So a partial ban, which may be called "checkerboarding," is invalid and unlawful.

"Checkerboarding" = non-confinement of the hazard to one's own self or premises, the classific trait of an "ultrahazardous activity." For an analysis of this subject, see Opinions of Michigan Attorney General 1987-1988, No. 6460, pp 167-171, 1987 Michigan Register 366 (25 Aug 1987) (taking "checkerboard style" action does not achieve genuine safety). See also the voluminous precedents on the "right to fresh and pure air."

Another reason partial smoking bans supposedly authorzing some unsafe locations, are unconstitutional is that unsafe locations violate federal law. The federal Occupational Safety and Health Act of 1970, 29 USC § 651 - § 678 forbids behaviors and hazards (meaning, substances concerning which regular exposure foreseeably leads to "material impairment of [employee] health"). Tobacco emissions are the epitome of such. Tobacco emissions notoriously exceed OSHA TLV limits. See, e.g., the 1964 Surgeon General Report, by Luther Terry, M.D., in the Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Chapter 6, Table 4, p 60 (1964). It lists examples of cigarettes' deleterious emissions compared to the prescribed health standards, the chemicals' “speed limits,” the maximum number above which is unsafe.

There are also pertinent arbitration cases, e.g., Dept of Health, Educ and Welfare, Social Security Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (DC, 22 Jan 1982), which held that a non-checkboard smoking ban was mandatory, in order to provide a safe place for one complaining nonsmoker; and Honeywell Inc v Int'l Ass'n of Machinists & Aerospace Workers, 92 Lab Arb (BNA) 181 (Fla, 3 Jan 1989) (a particularly well-reasoned case, this one identifies smoking as dangerous to nonsmokers, and not a benefit but a detriment to smokers).

Tobacco chemicals are inherently dangerous, so total solutions, not partial ones, are the only scientifically valid ones. Even children know better than politicians on this point. Some schools have as a classroom science exercise, an experiment of pouring two different colored liquids into one container. The idea is to determine whather they remain separate or mix! Any child can see almost instantly that they mix. Likewise, contaminated air from smoking sections inherently mixes into the so-called 'no-smoking' sections.

Naturally, as the court held in the Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (1979) case, the separation / segregation / 'checker-boarding' concept is not fact-based! not scientific. So it is unconstitutional. ('Checkerboarding' is 'junk science,' hence unconstitutional.

Note the long line of anti-"junk science" case law:
  • U.S. v Amaral, 488 F2d 1148 (CA 3, 1973)
  • Richardson v Richardson v Richardson-Merrill, Inc, 273 US App DC 32; 857 F2d 823 (1988)
  • Christophersen v Allied-Signal Corp, 939 F2d 1106 (CA 5, 1991)
  • Brock v Merrell J. Dow Pharmaceuticals, Inc, 874 F2d 307 (CA 5, 1989)
  • eventually reaching the Supreme Court, Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (28 June 1993).

    • It is a long time since we knew that "separate but equal" is impossible to be equal!! Brown v Board of Education, 347 US 483 (1954). Politicians simply have no excuse for thinking (nay, pretending) that separate but equal, is anything but science nonsense.

    As laws are unconstitutional when they are not fact based, over the years, various people have filed lawsuits on non-fact-based laws. When the government could not prove X accurate from a science, engineering, or logic point of view, the law was struck down by the courts. When laws such as purport to cover public health and safety lack rational basis, e.g., 29 CFR § 1910.1000 (a voluminous set of "speed limits" for chemicals), they are invalid, and must be stricken. Industrial Union Department v American Petroleum Institute, 448 US 607; 100 S Ct 2844; 65 L Ed 2d 1010 (1980) (a testing related criterion established without scientific basis is invalid); and Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (1979) (a no smoking law that does not achieve its aim is unconstitutional). As segregation does not end the hazard, it is obvious on its face that the segregation concept is flawed.

    Alford is particularly relevant. It was a case concerning no-smoking sections. Politicians invented a fiction, here is a toxic chemicals line. On this side, test to see that it is no-smoking; on that side, it is not. The fact is, smoke drifts. The magic testing / separation line | does not work.

    Even children's experiments show this basic science fact. A standard child's science experiment is to take two colored liquids, and pour them into one bowl. See how they merge!! Politicians are not even as mentally alert on science as children!! So naturally, in Alford, the court struck down the law as unconstitutional. It is sheer nonsense to say, on this side of the line / number, it is safe; | on that side, it is not! There is no scientific evidence that that is so. It is pure fiction on the part of corrupt or scientifically illiterate politicans, not even as well educated as children a century ago.

             Partial bans are a scam, in essence, they are criminal fraud, racketeering. They pretend to do a service, but one that is known to be ineffective. Such immoral behavior is typically seen among the sleaze who, for example, swindle unsuspecting senior citizens into buying an expensive furnace that they do not need!

             Do not accept a partial smoking ban. Why? Well, ask Dr. Kevorkian! He has learned that it is not legal to kill a person, even a consenting adult, ANYWHERE. The laws against killing people apply everywhere! There is no place, no "free-fire zone," as in combat, where it is ok to spray toxic chemicals and kill people! Wherefore partial bans are unconstitutional.

             This does not mean to REFUSE any offer. You can "accept" anything, then appeal it. Jews "accepted" being killed at Auschwitz. But The Nurnberg Trial, 6 FRD 69 (1946), disregarded such "acceptances." Nobody's "consent" to less than full compliance with the law has any legal standing whatsoever! (See our website on legal definitions, including so-called "consent.")

             So "accept" all offers, then appeal, citing the offer of less than full compliance as showing bad faith on the perpetrator's part. The making of an offer shows that they recognize the hazard, and proves malice, specific intent to harm, by their refusal to eliminate the hazard.

             If you "refuse" an offer, some corrupt officials may hold that against you. Remember, there is corruption and bribery among officials, lawmakers, judges. So they may retaliate. Be careful to couch your words in words unlikely to trigger their retaliation. (Get a lawyer if need be.)

             Think like a police officer. If you are being shot at, and the shooter offers to reduce the rate of fire against you, "accept." But keep on shooting back, keep on prosecuting!

             You ask, Wouldn't the obvious solution be to ban the manufacture, giveaway, and sale of cigarettes?

             Answer: Yes, you are right. In fact, our educated ancestors figured that out a long time ago! In Iowa and Tennesse, cigarettes were banned in 1897 due to the already then known danger. The Tennessee law was upheld by the U.S. Supreme Court. Soon thereafter, in 1909, Michigan banned cigarettes. The law number is MCL § 750.27, MSA § 28.216. Details are at our website explaining that law, and in material from Michigan Governor John Engler and staff, for example:

    Exec Order 1992-3
    Pro-Law Letter # 1
    Cigarette Smuggling Memo
    Pro-Law Letter # 2
    E-Mail Overview

    There are solutions for those who favor genuine action on public health. Insist on a constitutional solution, one genuinely supportive of public health. Recommendation: a cigarette manaufacture and sales ban, as that is easy to enforce against those small numbers who are the makers and sellers.

    It is simpler to enforce than allowing manufacture and sale, then punishing the buyers when they use the product! Why criminalize vast numbers when a narrow action will have a far better pro-health effect? Of course, if this latter approach is the only one your politicians will accept, go for it!

    However, if they insist on a phony scam action, a partial ban, do what you can to get it overturned in court, preferably having the limiting words stricken, thereby converting the law into a full-scale ban. (Partial action is unconstitutional as it not only harms some nonsmokers, it also violates smokers' rights as it denies smokers the "equal protection of the laws," as they are the only consumers regularly sold a product that when used as intended, injures and kills.)

    Perhaps the workers at the institution will want a safe job site for themselves. Safety includes safe coworkers, so obviously safe customers are an essential in safety as well. Employees have sued for freedom from toxic tobacco smoke (TTS), e.g., Donna Shimp, Leonard Perkins, and Lauren Hall, etc.

    Perhaps you can arrange an official opinion from your jurisdiction's public attorney or Attorney General. Provide references including

    Remember, you are protecting those who often cannot protect themselves, including the institution's employees, infants, fire victims, etc., from the severe danger that kills so many of them each year. And you are protecting the smokers themselves, none of whom has made a valid "informed choice" to smoke, as defined by standard legal definitions.

    "A stitch in time saves nine." So please read at least nine of the following websites:

    CIGARETTE-RELATED MEDICAL DATA
    ABORTION
    ADDICTION
    AIDS
    ALCOHOLISM
    ALZHEIMER'S
    BIRTH DEFECTS 
    BRAIN INJURY 
    CRIME 
    DANGEROUS CHEMICALS 
    DRUGS
    FIRES 
    HEART DISEASE
    HOMELESSNESS
    HIRING DIFFICULTIES
    LUNG CANCER
    MACULAR DEGENERATION
    REASONING IMPAIRMENT
    SEAT BELT NONUSE
    SIDS
    SUICIDE

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    Copyright © 1999 Leroy J. Pletten