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Constitutional Complaint|Cites Groucho Marx

ST. LOUIS (CN) - Clayton, Missouri's ban on smoking in parks is unconstitutional, says a man who claims that in a free society he should have the right to make foolish choices. Arthur Gallagher's 31-page federal complaint begins by citing legal legend Groucho Marx, the dictator of Freedonia.

"These are the laws of my administration: / No one's allowed to smoke / Or tell a dirty joke / And whistling is forbidden," Groucho sings, to which the chorus replies: "We're not allowed to tell a dirty joke / Hail, Hail, Freedonia."

Continuing to cite "Duck Soup," the complaint again cites Groucho's song: "If any form of pleasure is exhibited / Report to me and it will be prohibited. / I'll put my foot down; / So shall it be - / This is the land of the free. ... Hail, Hail, Freedonia ..."

That out of the way, Gallagher says he lives in Clayton, and enjoys ecstasy there from time to time, and pays taxes.

"He enthusiastically enjoys using the city's parks, etc., and ecstatically enjoys smoking tobacco products while doing so," the complaint states.

But Clayton "has passed an ordinance which criminalizes outdoor smoking in its city parks, garages, and certain other venues. Penalties are up to a $1,000 fine and 90 days in jail."

Gallagher objects. In fact, he puts his foot down: "The right to make foolish choices includes the right to engage in the short term pleasure of smoking, even though the choice is medically foolish over the smoker's long term life span," his complaint states.

He claims the ban violates his 14th Amendment to due process because it fails rational health review; it is not narrowly tailored to protect the right to smoke, which is an historical rights in these United States; it denies smokers equal protection and discriminates against them as a class; it is arbitrary and capricious; and it denies smokers their right to "pursuit of happiness."

Clayton City Attorney Kevin O'Keefe, however, told the St. Louis Post-Dispatch that beginning the complaint by citing Groucho Marx "is telling evidence of the merits of the case."

The law took effect on Jan. 1.

Gallagher claims Clayton based the law upon erroneous medical reports.

"The city first relies on 2006 U.S. Surgeon General's Report, 'The Health Consequences of Involuntary Exposure to Tobacco's Smoke,'" the complaint states.

"This report does not directly address smoking outdoors. Rather, it focuses on indoor air being exchanged with outdoor air.

"The city relies upon 'Health effects of exposure to environmental tobacco smoke: the report of the California Environmental Protection Agency, Smoking and Tobacco

Control Monograph 10.'

"This report mainly focuses on indoor smoke. It stipulates that there is 'some exposure outdoors in the vicinity of smokers,' but does not include a single study that focuses strictly on outdoor smoke exposure.

"The city mistakenly relies upon 'Environmental tobacco smoke: first listed in the Ninth Report on Carcinogens.'

"This report does not address outdoor smoke exposure.

"The law requires substantial supporting evidence in the record to demonstrate that recited harms are real, not merely conjectural.

"There is no evidence - and certainly not in the three reports cited as the basis for the ordinance - that there is a health danger from outdoor second hand smoke," the complaint states.

Though several courts have found that smoking is not a fundamental right, Gallagher says they have erred.

"An analysis of fundamental rights in the substantive due process context involves (a) a determination of whether the fundamental right or liberty interest is deeply rooted in history and tradition, and so implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed, and (b) a careful description of the asserted fundamental liberty interest," the complaint states.

Gallagher cites 14 instances in which he says smoking played a key role in U.S. history. These included Europeans and Native Americans smoking peace pipes together; slaves smoking in search of solace; smoking jokes involving day-to-day life; Hollywood using smoking to define 'cool'; soldiers smoking as a way to handle fear, anxiety and stress; and late 19th Century American plutocrats using $100 bills to light their cigars as a way flaunt their wealth.

Gallagher wants the law barred as unconstitutional.

He is represented by W. Bevis Schock.

Hail, Freedonia.

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