Federal appeals court hears debate over smoker rights in public housing

(CN) — The D.C. Circuit heard arguments Thursday in a lawsuit challenging a federal government regulation that bans smoking in public housing. 

Six public housing tenants who smoke and a smokers' rights group are fighting to vacate the U.S. Department of Housing and Urban Development’s rule instituting smoke-free public housing. The rule bans smoking inside living units, indoor common areas and administrative office buildings, and also applies to outdoors areas within 25 feet of those places.

In a lawsuit filed against HUD three years ago in Washington federal court, the smokers claimed the rule – which authorizes the agency to withhold funding from public housing authorities, or PHAs, that allow smoking – is unconstitutional because, among other reasons, it deprives them of their liberty to use tobacco products and its enforcement requires invasion of their privacy.

The district court ruled against the smokers, finding the HUD rule promotes the legitimate government interests in public health and safe housing.

“Creating safe housing conditions and remedying the shortage of safe homes for low-income families—the purpose behind the Housing Act—are legitimate governmental interests,” Senior U.S. District Judge Ellen Segal Huvelle wrote last year. “The Smoke Free Rule reasonably advances these goals by ‘improv[ing] indoor air quality in the housing; benefit[ing] the health of public housing residents, visitors, and PHA staff; reduc[ing] the risk of catastrophic fires; and lower[ing] overall maintenance costs.’”

That decision prompted the smokers' appeal to the D.C. Circuit, which heard arguments in the case Thursday.

“If we succeed with withdrawing the HUD mandate, my clients would be free to negotiate with their PHAs to ameliorate the smoking bans or to rescind them entirely, whereas they can't do that now without HUD’s pressure,” Lawrence Joseph, who represented the smokers, told the three-judge appellate panel.

“It’s not only interfering with their contract between landlord and tenant, it's also interfering with their ability to petition government,” he added after clarifying that both PHAs and HUD are government entities.

U.S. Circuit Judge Ketanji Brown Jackson, who was appointed by President Joe Biden in March, interjected to mention that HUD has historically had “a long list of stuff” and certain lease conditions it requires PHAs to enforce. 

But, Joseph said the no-smoking rule is different from rules that govern things like lead paint or other health-related issues. He contended that the smoking ban targets “lifestyle” rather than safety-related concerns.

But Justice Department attorney Lindsey Powell, who represented the federal government, asked the panel to affirm the district court’s decision. 

“The rule that's at issue here is entirely in keeping...with prior standards that HUD itself has promulgated under the same authority to establish standards for safety and habitability in public housing,” Powell said.

Powell said that even prior to HUD’s federal no-smoking rule, there were hundreds of public housing agencies that had implemented similar rules alongside private landlords and municipalities that ban smoking in individual units. 

HUD documented the significant risks of smoking in and around buildings, she said, including fire risk, other property damage and health risks related to second-hand smoke.

Senior U.S. Circuit Judge Douglas H. Ginsburg, a Ronald Reagan appointee, said a problem with the second-hand smoke argument is not that it’s not harmful, but that the government hasn’t shown to what degree smoke can permeate into other units.  

“That is absolutely something that HUD addressed in the rulemaking,” Powell retorted, contending that there is no safe amount of second-hand smoke exposure. She said smoke from certain units can enter others through air vents and walls. 

Jackson questioned the scope of HUD’s authority. 

“You can imagine a world in which HUD seeks to regulate what parents are feeding their children inside public housing complexes, because you know that certain types of junk foods are unsafe,” the judge posited.

“The statute itself is worded broadly,” Powell answered. “HUD does have significant leeway to determine what standards of safety and habitability should be.” 

She said the difference between Jackson’s example and the rule at issue is that the smoking ban prevents harm to other tenants, similar to rules that prohibit tenants from throwing raucous parties and letting their garbage pile up. 

“This is not the government as the nanny state, it’s the government as the landlord,” Ginsburg added to Powell’s statement.

Responding to Powell’s arguments, Joseph noted that the funding that HUD threatens to withhold from defiant PHAs is substantial. 

“They are a nanny state here,” the attorney said. The government had several occasions to cite the danger of transfer of smoke between units, Joseph said, but it did not. 

Jackson and Ginsburg were joined on the panel by Chief U.S. Circuit Judge Sri Srinivasan, a Barack Obama appointee.

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