Smokers' Rights Group Files Lawsuit Against U.S. Department of Housing (HUD) Over Smoking Ban in Public Housing

Smokers’ Rights Group Sues HUD

Over Rule that Bans Smoking

Inside Public Housing Apartments

FOR IMMEDIATE RELEASE                                              July 23, 2018

(New York, NY)— Today, New York City Citizens Lobbying Against Smoker Harassment (NYC C.L.A.S.H.), joined by several residents who live in public housing, filed a lawsuit challenging the Department of Housing and Urban Development’s (HUD) rule that directs all state and local housing authorities to ban smoking inside and out of public housing facilities nationwide, most notably within resident’s apartments. The lawsuit, which also names HUD Secretary Ben Carson in his official capacity as a defendant, was filed through the Manhattan-based law firm, Joshpe Mooney Paltzik LLP.

HUD’s anti-smoking regulation was finalized in the last days of the Obama administration with an effective date of compliance no later than July 30, 2018. It requires public housing authorities to implement and enforce its rule accordingly. Public housing tenants, many of whom are minorities and veterans, are subject to eviction for violating the new regulation. 

The Observer described the regulations as maybe “the most far-reaching, intrusive and over-reaching executive order of the entire Obama administration.”

Audrey Silk, founder of C.L.A.S.H. says, “Anti-smokers claim that HUD's smoking ban is a valid exercise of government power because there is no general “right to smoke,” but that claim is intentionally misleading because the government doesn't have the right to reach into our homes and dictate our personal behaviors and habits.  This lawsuit is about defending the right to be left alone to engage in a legal activity in the privacy of one’s own home. HUD claims it’s necessary to protect non-smoking residents in other apartments but, not only are they exceeding their authority, the lack of sound scientific evidence that someone smoking in their own apartment puts other tenants’ health at risk hasn’t stopped them either. Frustrated by the holdouts who’ve refused to submit to their current coercive measures and quit smoking, this is really the story of public health zealots partnering with HUD to begin the despotic breaking down of front doors to reach them.   It won’t end at public housing if they’re not stopped here.”

Edward Paltzik, of Joshpe Mooney Paltzik LLP, says, “The smoking ban is constitutionally deficient on many levels. HUD’s nationwide edict clearly violates the anti-commandeering doctrine prohibiting the federal government from compelling state and local authorities to enforce federal policy. This is also another profound example of an administrative agency run amok in violation of Chevron deference. Nowhere did Congress bestow on HUD the power to intrude into peoples’ homes to regulate this sort of lawful behavior.”

The suit was filed in the United States District Court for the District of Columbia.

Related Material: 

CLASH v. HUD (18cv1711): http://www.nycclash.com/CLASHvHUD-Complaint-18cv1711.pdf

***

NYC Citizens Lobbying Against Smoker Harassment (C.L.A.S.H.) is a grassroots organization established in 2000 dedicated to advancing and protecting the interests of adults who choose to smoke cigarettes or enjoy other forms of tobacco or use electronic cigarettes.

Joshpe Mooney Paltzik LLP is a full-service Manhattan-based corporate, litigation, and constitutional law firm.

Contact:

Audrey Silk, Founder, NYC C.L.A.S.H.

Phone: (917) 888-9317

Email: nycclash@nycclash.com

Web: www.nycclash.com

Edward Paltzik, Joshpe Mooney Paltzik LLP

Phone: (516) 526-0341

Email: epaltzik@jmpllp.com

Web: www.jmpllp.com

Footnote:

1. “The Nanny State Shames Poor Smokers in Their Homes.”  Editorial.  12/7/16

http://observer.com/2016/12/the-nanny-state-shames-poor-smokers-in-their-homes/

LETTER: Dear President-Elect Trump, please repeal HUD's smoking ban rule...

P.O. Box 1036

Brooklyn, New York 11234

Email: nycclash@nycclash.com

                                                                                                December 22, 2016

The Honorable Donald Trump

Presidential Transition Office

721 Fifth Avenue
New York, New York 10022

Dear Mr. President-Elect,

     We are elated to have elected to our White House two men who honor the rich traditions of our country and the fundamental beliefs on which it was founded.  Smaller and less intrusive government, which both you and Vice President-Elect Pence clearly value, is an ideal that not only applies to business and industry but to the people.  And so we hope that the burdens you’ve both promised to lift off of industry in pursuit of economic freedom will be lifted off of the people as well in pursuit of personal freedom.

     We ask that you rescind the final rule “Smoke-Free Public Housing” that was imposed by the U.S. Housing and Urban Development Department (HUD) and printed in the Federal Register on December 5, 2016 (Docket No. FR 5597-F-03).  You don’t have to have a favorable view of smoking to be against what New York’s Observer newspaper editors describe as possibly “the most far-reaching, intrusive and over-reaching executive order of the entire Obama administration.”¹ Far-reaching because it assaults people in the privacy of their own homes and over-reaching because it is fraught with substantial constitutional questions.²   

     Imagine an elderly or disabled veteran being told by a federal agency that he can't enjoy a cigar in his own home; that he'd have to get dressed, somehow make it downstairs and then 25 feet further (or more since the HUD rule provides latitude to each public housing authority to extend it) into the freezing cold, torrid heat or drenching rain without a bench to sit on.  No, s/he can’t go to the park because smoking is banned there too.

     In 2013, President Obama honored the nation's oldest veteran, Richard Overton, in front of thousands in D.C. on Veteran’s Day.³  Obama told the crowd, "His service on the battlefield was not always matched by the respect that he deserved at home."  Well, this veteran is also well known for his love of his cigars – enjoying up to twelve of them a day.  Mr. Overton is still with us at 110 years old.⁴ What “respect at home” are veterans like him receiving from President Obama and Housing Secretary Julian Castro when they are being kicked out of their homes – either twelve times a day or for good if they get evicted for non-compliance?

     HUD’s callous disregard for the well-being (in all other uninvited manner beside the personally invited legal choice to smoke) of residents such as Mr. Overton dictates that this exercise cannot be rationally said to be all about health.  If the person who wants to smoke falls down the stairs, catches pneumonia or becomes depressed is the trade HUD is making then it’s clear the only thing this rule is about is HUD’s complicity in Big Public Health’s singularly obsessive social engineering experiment.  “Quit smoking” – at the point of their rule-making gun – is their answer and the real motivation behind this rule. (Claiming smoking in one apartment harms non-smokers in another apartment is their wholly unproved excuse.)  They call it the “tobacco endgame.”⁵ I think others would call this means to an end the “liberty endgame”; whereby to “denormalize” smoking they have had to denormalize civil liberty ideals.

     This is not a “right to smoke” objection as HUD and its rule supporters insist on characterizing any resistance.  At stake is the right of U.S. citizens to be left alone to engage in a legal activity in the privacy of one’s own home – the last place left without a smoking ban (otherwise this is also de facto Prohibition). There can be no end to such incursion if one is allowed through. It was, in fact, Vice President-Elect Pence who once said, “A government big enough to go after smokers is big enough to go after you.”⁶

     We have no objections to government and health groups advising against smoking and offering stop-smoking assistance to those who seek it.  But when Congress and states’ rights are side-stepped and a federal agency starts breaking down its citizens’ own front doors to rip it out of their hands because they refuse the advice let’s stop pretending the issue is about smoking instead of tyranny.   

     We the people beg you for relief.  Please rescind this rule.

                                                                                                Sincerely,

                                           

                                                                                                Audrey Silk

                                                                                                Founder

cc:        The Honorable Mike Pence

            Vice President-Elect

            Dr. Ben Carson

            HUD Secretary Nominee

            The Honorable Tom Price

            Congressman

            HHS Secretary Nominee

________________________

1. Editorial. “The Nanny State Shames Poor Smokers in Their Homes.” Observer. 12/7/16.

http://observer.com/2016/12/the-nanny-state-shames-poor-smokers-in-their-homes/

2. Audrey Silk / C.L.A.S.H. Comment on the Department of Housing and Urban Development (HUD) Proposed Rule: FR 5597-P-02 Instituting Smoke- Free Public Housing. ID: HUD-2015-0101-0528.  1/12/16

https://www.regulations.gov/document?D=HUD-2015-0101-0528

3. Lindy Royce-Bartlett. “Oldest World War II vet Richard Overton, 107, honored by President Obama.” CNN. 11/11/13

http://www.cnn.com/2013/11/11/us/oldest-world-war-ii-veteran/

4. Douglas Ernst. “Oldest World War II veteran still chomping cigars at 110.” The Washington Times.

5/12/16

http://www.washingtontimes.com/news/2016/may/12/richard-overton-oldest-world-war-ii-veteran-still-/

5. "Part of the 'tobacco endgame' is to further denormalize smoking, to the point that the next generation of kids will not grow up seeing it as something adults do. This is a hard argument to make when a kid smells smoke every time he walks into the hallway of his building and sees groups of residents smoking on stoops. Smoking bans have really helped to marginalize smoking behavior in other settings, like airports, restaurants, hospitals and schools. Multiunit housing is the next logical step."

Stanford University Freeman Spogli Institute, Center for Health Policy / Center for Primary Care and Outcomes Research News. “Is proposed ban on smoking in public housing fair and just?” 11/16/15

http://healthpolicy.fsi.stanford.edu/news/proposed-ban-smoking-public-housing-fair-and-just

6.  Kim LaCapria. “That Makes No Pence.” Snopes. 11/11/16

http://www.snopes.com/mike-pence-smoking/

Smokeless Tobacco in the Smoke-Free Air Act -- Illogical and Unlawful

RESPONSE TO NYC COUNCIL HEALTH COMMITTEE'S PROPOSALS TO ADD 

NON-TOBACCO AND SMOKELESS TOBACCO TO THE "SMOKE-FREE AIR ACT"

On February 25th the NYC Council Health Committee held a hearing in regard to five separate bills on the regulation and ban of shisha (hookah) and smokeless tobacco.

I had received a personal invitation from Legislative Counsel to attend and speak.  Ultimately I was unable to make it but submitted written testimony for inclusion in the hearing record.

That testimony -- along with the description of each of the five proposals -- is as follows:

              

                                                                             

                February 25, 2016

Testimony of Audrey Silk, Founder

For public hearing held by New York City Council Health Committee

On the multiple following Introductions:  

Int 0617 - This bill would prohibit the sale of shisha in New York City, except for shisha sold at hookah bars, tobacco bars, and tobacco stores.

  

Just because shisha’s customer base is smaller than that of conventional cigarettes, it doesn’t mean it should be a cover – that few will notice what you’re planning and know to object -- for getting away with banning the sale of shisha in regular retail stores where conventional cigarettes rightly remain free to be sold.

Int 1076 - This bill would raise the legal age to buy non-tobacco shisha, pipes or rolling papers from 18 to 21. It would also define non-tobacco shisha as any product that does not contain tobacco and is smoked or intended to be smoked in a hookah or water pipe.

“Young adults.”  In other words, adults.  This has long been debated and you’ve sadly sailed that ship already.  And all I can do anymore is just shake my head at this infantilizing the population simply because a body of adults has power that other adults don’t.  Yet you’ll all gladly campaign to, and accept the votes of, those aged 18 to 20 when running for office as if they are miraculously mature enough to pick people to lead a whole city that they have a had a short time to learn about but then deemed too immature to make a decision this generation has been educated on endlessly.  To put that hypocrisy into a sentence:  “Thanks for your vote and even maybe campaigning for me, but don’t let the door hit you on your rear end on the way out.”

Int 1075 - The proposed legislation would require that any restaurant which permits the use of non-tobacco shisha to restrict its use to a section of the restaurant that is no greater than 5 percent of the restaurant’s seating capacity. The bill would also require such locations to post signs warning customers of the adverse health effects of using non-tobacco shisha products in devices lit with charcoal.

I take it that this is a competing bill with Intro 139-A?  It sounds like it.  139-A seeks to add it to the Smoke-Free Air Act (SFAA) which would effectively ban it from all restaurants – the few that currently offer it -- except for a handful of locations just like cigar bars in the SFAA.  Whereas this Intro, 1075, will keep it in any restaurant on the condition it’s restricted to 5% of the seating. How many places are large enough that you are not condemning them to ONE table.  Or is that the ulterior motive?

Proposed Int. No. 139-A - This bill would add non-tobacco shisha to the City’s Smoke-Free Air Act. It would allow existing non-tobacco bars, commonly known as hookah bars, that derive the majority of their income from non-tobacco shisha and paraphernalia to continue operating as long as they register and meet certain standards.

Intro 1075 doesn’t belong in the SFAA to begin with and here neither does Intro 139-A.

The SFAA is not a receptacle for anything you want to throw into it because it has to do with products within a certain family. 

Amendments to current law, though itself legal, does not fix the unlawful misplacement of the subject matter. The SFAA was written strictly to eliminate exposure to smoke from tobacco products based on the alleged science surrounding Environmental Tobacco smoke or ETS. 

Accordingly, as also part of this Intro, I also vigorously object to the amendment of Section 1. Subdivision y of section 17-502 of the administrative code of the city of New York:  

[A]mended to read as follows:

y. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, water pipe or any similar form of lighted object or device [which contains tobacco].

Again, it does no good to remove the words “which contain tobacco” to accommodate the inclusion of “water pipe” when the SFAA – after many months of heated debate over the science of alleged harm due to exposure to tobacco smoke –  was enacted to address what was debated!  No such exploration and discussion has taken place in relation to non-tobacco products.

Once again, this seems to be a case of cover for your political lives by slipping it into the more pleasing sounding Act, rather than crafting a NEW law where it would lawfully fit as a separate subject.  Instead you dump it unlawfully into the SFAA to avoid scrutiny of a proposal that would have to be described using different words – words that would lift the veil on its incongruity and expose the depths of the council’s paternalism.

Which brings us to the most glaring misrepresentation of all…

Int 1068 - This bill would prohibit the use of smokeless tobacco products, such as chewing tobacco and snus, at sports stadiums and arenas that host events that require a ticket for admission.

I suppose council members are taking their cue from California that recently enacted the same for the following stated reasons:

“…A ban on the use of smokeless tobacco in professional baseball takes aim at the use of [it] by professional baseball players at stadiums… with the goal that impressionable youth never begin to use smokeless tobacco products or associate [it] with the sport of baseball.”  And “To promote a healthy and active lifestyle and to set a better example for youth…”

In other words, crafting law intended to control adult legal behavior in order to mold minds to the state’s way of thinking.  

The SFAA does not ban the “use of” cigarettes to control the smoker; it banned “smoking” to control the smoke.

There are numerous historical statements on the intent of the SFAA [see addendum].  One, from the anti-smoking organization Americans for Nonsmokers’ Rights (ANR) – the architects of many of the country’s smoking bans including NYC’s – can be found in   their guideline for local advocates appearing at hearings.  It instructs: 

"Because smokefree laws are designed to protect nonsmokers, and not to alter the behavior of smokers, extensive testimony on the health effects of primary smoking is irrelevant and should be avoided.”

-- [see:  http://no-smoke.org/document.php?id=273]

In total contradiction the council tries to pass this one off as part of the "Smoke-Free Air Act" instead, knowing the masses will nod their left-in-the-dark conditioned heads.  It's personally politically safer than being honest and presenting the citizens of this city with a new law -- which you have every right to do -- the purpose of which is to impose a prohibition on their own legal lifestyle choices, and hearing back what they think about that; what they think about you banning free legal choice because you said so, regardless that something is legal to purchase and consume otherwise. 

Be open by being lawful about what you’re trying to do and give the people a chance to ask you where such legislation will stop.  Maybe you’ll ban sodas at stadiums next.  Maybe ball players can’t be over a certain weight.  What will the children think, right? 

This is also in the realm of censorship. It’s you who call the sight of it a “message.”  Speech. Would you ban my wearing a t-shirt that said “Smoking is Normal”?  I would hope your answer would be no to curtailing what amounts to speech.   So can you please explain the difference to me?  The rationale for banning smokeless tobacco is that it sends the wrong message.  If it's a message you're banning then how is my legal right to wear a t-shirt that says “Smoking is Normal” in public any different?  Put the other way, under these terms, how is a visual item --smokeless tobacco -- any different from my t-shirt?  

That it’s “only” in one place and only one unpopular subject matter doesn’t rescue it or you from its ugliness.  Incrementalism is a cornerstone in the anti-smoker playbook, equal protection of the minorities’ autonomy be damned.  Where will you forbid this and other legal adult behavior targeted by Big Brother Public Health next? When can I expect to be fined for wearing this t-shirt that creates the same “problem” – according to you -- as seeing a ballplayer chewing tobacco?

Appalling in its own right is the support of this bill by Councilman Gentile as a co-sponsor who was vocal at the e-cig hearing in pointing out, during an exchange with former Health Commissioner Thomas Farley, “I’m just wondering if we’re here today based on . . . your testimony trying to fit a square peg into a round hole. Based on the definition that we have for the Smoke-Free Air Act. And the fact that the Smoke-Free Air Act addressed the issue of secondhand smoke.  And as you said in your testimony who [sic] has been pointed out in . . . the presentation is there is no traditional secondhand smoke with . . . e-cigarettes.  So are you suggesting that we redefine the . . . Smoke-Free Air Act because the . . . basic definition was to protect secondhand smoke [sic]. “

You might or might not be aware that my organization is currently in court over this same behavior by this council in regard to electronic cigarettes.  This social engineering experiment – a ban to keep the people themselves from an otherwise legal product -- was never the intent of the Smoke-Free Air Act.  Seeking to exert control over personal behavior through a ban on a specific type of product is a different subject than protection of the public against secondhand smoke exposure under Chapter 5.

The infamous NY Post headline, “Headless Body in Topless Bar,” stuck because the absurdity was brilliant.  “SMOKELESS tobacco in the SMOKE-FREE Air Act” is competitive.  I’d have a hard time believing you would accept that kind of logic from the public on other topic debates.  Why should we accept it from you?

The City Council needs to kick this new habit whereby its members are unable or unwilling to attempt to enact freestanding bans on the likes of smokeless tobacco without the political cover afforded by tying it to the Smoke Free Air Act. 

ADDENDUM

ONE & ONLY INTENT OF NYC’S SMOKE-FREE AIR ACT: 

To control tobacco smoke in order to eliminate non-smokers’ exposure

Local Law 2 of 1988 (then called the Clean Indoor Air Act)

“The City Council hereby finds that the regulation and control of smoking in

enclosed public spaces is a matter of vital concern, affecting the public health, safety and welfare of all New Yorkers.  There is increasing evidence that passive exposure to cigarette smoke (second-hand smoke) is linked to a variety of negative health consequences in humans . . . . ”

“Given the current state of scientific evidence on the adverse health effects of second-hand smoke, the Council, in enacting this chapter, seeks to accomplish two goals: (1) to protect the public health and welfare by prohibiting smoking in certain public places except in a designated smoking areas and by regulating smoking in the workplace; and (2) to strike a reasonable balance between persons who smoke and nonsmokers to breathe smoke-free air.”

https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=Sl6R1DnpG8DgjDjlPBhT4w==&system=prod

Local Law 5 of 1995 (and renamed the Smoke-Free Air Act)

“According to the United States Environmental Protection Agency (“EPA), the health risks attributable to environmental tobacco smoke (“ETS”)(also known as second-hand smoke, passive smoke or involuntary smoke) are well-established . . . . It is the Council’s intention that these additional restrictions will help protect children and nonsmoking adults from the health hazards presented by exposure to ETS.” 

https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=hJXJQkfotW1OjY9yYWIV/w==&system=prod

New York City Department of Health and Mental Hygiene - Public Bulletin  “Answers to Common Objections to Smoke-Free Workplace Laws.”  (2002)

Q: This is America. Don’t citizens have a right to smoke, even if it hurts them?

A: Yes, smokers are free to continue to smoke—as long as they don’t expose others involuntarily to cancer-causing chemicals. American democracy has always created laws to protect society from threats to our health and safety. Sometimes limits must be imposed on the right of one individual to engage in behavior that, while acceptable if it affects the individual only, is harmful to others. Protecting people from exposure to second-hand smoke is an example of society acting to safeguard citizens from involuntary exposure to dangerous risk. When one person’s right to engage in certain behaviors conflicts with another person’s right not to be harmed, limits have generally been placed on the harmful behavior. [emphasis added]

https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=ECGEnlC2w9TpTkhC0C32uA==&system=prod

City Council Committee on Health Hearing on Intro 256, to amend Chapter 5 – Transcript October 10, 2002

Mayor Michael Bloomberg: 

“Enacting this bill, Intro 256, will not outlaw the right of an individual to smoke and put his or her own life in jeopardy. If someone wants to inhale smoke, directly or indirectly, that’s their right.”

“[Intro 256] should be seen as the just and logical extension of protections against secondhand smoke that already are in place in most public settings.”

“This bill, however, is not designed to stop you from smoking. If you want to smoke, that's your right, and I will defend that. I don't think it’s an intelligent, if that's the one you would make.”

https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=G2Opiez8tbO1dvpfqMSb_PLUS_A==&system=prod

New York City C.L.A.S.H. v. City of New York, 315 F. Supp. 2d 461 (S.D.N.Y. 2004). – Legal Challenge to Local Law 47 / Intro 256 – Court Ruling

Hon. Victor Marrero, U.S.D.J: 

“To the contrary, as discussed in greater detail below, the Smoking Bans serve to protect an important governmental interest -- the health and welfare of persons exposed to ETS in New York State.”

“With regard to Local Law 47, the record illustrates that the New York City Council also considered the mounting evidence against ETS as a basis for its enactment.”

“New York State’s and New York City’s stated basis for enacting the Smoking Bans -- protecting its citizenry from the well-documented harmful effects of ETS -- provides a sufficient rational basis to withstand CLASH’s constitutional challenges.”

https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=LGQjX4qkW/xo4gCYIBRxUA==&system=prod

Lifestyle Police Responsible for the Death of Eric Garner

Preface:  Writing began before the grand jury decision and the subsequent assassination of two of NY'S FINEST.  The only update reflected in the writing came after the refusal to indict that occurred while I was still composing this piece.  Originally I had deemed the officers' actions as only incidental to this piece's point but noted the decision.  However, the ensuing protests prompted a demand for elaboration on that because I could not let certain talk go unanswered, no matter that I walk a fine line between two camps that sometimes softly clash.

As a retired NYC Police Officer (I served twenty years in one of the highest crime precincts in the city) and head of a nationally active NYC-based smokers’ rights group (C.L.A.S.H.) for the last fifteen years, I think I bring a unique perspective to the table regarding the Eric Garner case.  What I see is a two-part event as unrelated to each other as my own two roles. 

The refrain, “he was killed for selling cigarettes,” that I’m hearing is a conflation of circumstances that offends my dual interest senses.  No. He was approached for selling cigarettes.  He was physically engaged for resisting arrest.  Furthermore, he was not killed. He died.

What transpired after Garner refused requests to comply with a lawful order by police is an entirely different subject (police conduct) from what trained their attention on him in the first place (cigarette sales).  Separate trials are in order.

A man at least twice the size of the officers present who couldn't just say, “Well, if you don’t want to go we’ll be seeing you,” was taken down to the ground in order to effect a lawful arrest.  Any unintended residual compression was at best only a contributing factor in the death of a man suffering from a number of health ills. There was no premeditation on Officer Pantaleo’s part to “choke” him in retaliation for not complying (as too many predisposed to cop bashing are convinced occurred).  Mental state is a crucial factor in assigning blame. Pantaleo was no more guilty of murderous thought or disregard for risk than a motorist who fatally hits a pedestrian crossing against the light.  In plain language he just wanted to cuff him, not snuff him.

Schooled on the law and privy to all the facts and testimony, the grand jury concurs. And no video alone (short a scene of a person standing still and being shot in the back by police) can substitute for that in order to judge it intelligently. There is especially no replacement for having first walked a mile in an officer’s shoes to know what the many ingredients were for what took place.  Every uttered "could have," "would have," "should have," may as well come from kindergartners. 

Those who stubbornly cling to fruit from their own seed are lost causes.  Their chain of reasoning takes on an error-filled life of its own when the starting premise is fatally flawed either willfully or ignorantly.

Thus ends the first trial.  Peel this onion to its rotten core if you’re looking for an indictment.

Those who wave away the cigarette tax issue are either clueless (no knowledge of the depth of the anti-smoking campaign), anti-police (it will detract from their militancy) or anti-smoker sympathizers (don’t want attention drawn to it).

Jon Stewart said the cigarette tax is the “least salient aspect of this case” because “he could've been out there with mix tapes or a squeegee or a snow cone, and the same kind of s--t could have happened."  His mistake is to put this particular subject in league with quality of life crimes that don’t share a single fingerprint.  

I understand the point he’s expressing on behalf of many is that any interaction with police can escalate (though of course I disagree with the added insinuation that cops are the instigators).  But that’s a red herring itself because this is one opportunity for interaction that wouldn't exist at all except for the work of one cast of characters.  

Find me a horde that advocate and lobby for laws (literally daily for decades) against anything the way the anti-smoker crusaders do. Rather than lobbying Congress to shut down the industry they perversely turn their rage toward private citizens by trampling on civil liberties. Is there any other product under protest by one group or another that, in order to get their way, goes after the industry’s customers more than the industry?

[Author’s note: To drive home my point, as I write, a local TV news station just finished a protest story and the very next story was on a press release issued about a CDC study – designed to mold policy -- on the financial costs of smoking]

If you argue that the problem is that the police are up in too many faces then you can’t possibly be against the elimination of any one ground to do so.  

That trial – the attraction to Garner in the first place -- starts here.    

Loose cigarettes – forever commonly referred to as “loosies” – have been around, well, forever.  You could find them in many a neighborhood store. They were mostly a matter of convenience for people who only wanted a smoke or two for the day.  The war on smoking had yet to commence in earnest and this offense was low on the radar.

Then the neo-prohibitionists rode into town. Since then, loosies – no matter from a taxed or untaxed pack – are now sold on sidewalks too. Mass revolt overtook earlier mere convenience for the few, opening the door for individual entrepreneurs to fill the demand, created by ideologists, for financial relief.  Don’t take my word for it.  “The tax went up, and we started selling 10 times as much,” is how another loosie peddler put it to the NY Times a few years ago.  

So when Senator Rand Paul and others said cigarette taxes and the illegality of selling single cigarettes were at the root of the Garner case they’re right.  But they also frustratingly fail to dig to the seed. Draping the “Big Government” tent over the guilty party and leaving the blame dangling on the words “it’s a tax issue” lets particular tent crashers off the hook – tyrants who are best described by C.S. Lewis as more oppressive than robber barons who at least sleep, while the moral busybodies torment us without end.

It’s the national organizations and groups such as the Robert Wood Johnson Foundation, American Cancer Society, the American Heart and Lung Associations, Americans for Nonsmokers’ Rights, Campaign for Tobacco Free Kids, American Legacy Foundation, Action on Smoking and Health (ASH), down to the most locally set (but in orchestration with the rest) NYC Coalition for a Smoke-Free City who convinced lawmakers that one of the best ways to bend adults to their will was to price their product of choice out of their reach.

Or more accurately described by a gentleman speaking to the New Zealand Herald when asked how he felt about buying bootleg cigarettes following Bloomberg’s city tax increase:  “I should be guilty because I don't let him rip me off? F*** him!"  

Evidence of who’s calling the shots regarding anti-smoking-related policy, including cigarette tax hikes, is abundant.  This is a mere sampling. Despite local references, these groups are but organs of a national body:

“[O]rdinance sponsors should not call the shots in a smokefree campaign. Your coalition should.”
-- Americans for Nonsmokers’ Rights document guide for organizations
http://www.no-smoke.org/pdf/CIA_Fundamentals.pdf 

Americans for Nonsmokers’ Rights writes the law language (“Model Ordinance”) that lawmakers then introduce.
http://www.no-smoke.org/pdf/modelordinance.pdf 

“[T]he Public Health Law Center worked along with [public health advocates]… writing almost every one of Minnesota’s local smoke-free ordinances, and also drafting tobacco taxation and product regulation policies."
http://publichealthlawcenter.org/topics/tobacco-control/minnesota-tobacco-control 

“[T]he organization has led three successful campaigns to raise the cigarette tax in Pennsylvania since 1991.”
-- Executive Director, Smokefree Pennsylvania
http://www.highbeam.com/doc/1P2-11276093.html 

“The American Cancer Society Cancer Action Network, American Heart Association, American Lung Association of the Northeast and Campaign for Tobacco-Free Kids all endorse higher prices as a critical component of our strategy to prevent youth smoking and lower smoking rates in New York City.”
-- NYC Coalition for a Smoke-Free City
http://nycsmokefreeblog.org/2014/05/30/world-no-tobacco-day-the-real-price-new-yorkers-pay-for-tobacco-use/ 

What occurs goes beyond the usual lobbying all groups are certainly entitled to in hopes of having their interests served through the enactment of a law or implementation of policy.  The anti-smoker cartel doesn't just sit at the table, they run the meeting.  Need a better image?  Look no further than the recent shot of Al Sharpton sitting at the table between Mayor de Blasio and Police Commissioner Bratton to understand what I’m telling you.

Compliant former Gov. George Pataki swept in the first two significant state cigarette tax hikes (55 cents a pack in 2000 and 39 more cents in 2002), followed by former Gov. David Paterson who heaped on another $1.25 in 2008 and $1.60 more in 2010.  The agenda preceded Bloomberg’s reign but he jumped on board immediately following his election, adding $1.42 to city smokes in 2002.  

Ideology trumping financial gain is also found in Bloomberg’s kind – lawmakers who use their power to impose their shared paternalistic views on the governed – when he had this to say about his motives:

''If it were totally up to me, I would raise the cigarette tax so high the revenues from it would go to zero.'' [Link] 

 “This city is not walking away from our commitment to make it as difficult and as expensive to smoke as we possibly can…” [Link]  

By the way, as a councilman, Mayor de Blasio voted for it.

In 2007 the same special interests tried to pressure Bloomberg to hike the city tax again, their culpability on display with these words from a previous director of the NYC Coalition for a Smoke-Free City:  “[W]e all in tobacco control believe this is the next best thing to do.” This is a group that originally operated with the same email address as the NYC Department of Health [@health.nyc.gov]. 

As if it weren't enough, Obama’s first act as president was to raise the federal tax on cigarettes by 62 cents to $1.01 per pack (his request for 94 cents more in 2013 was rejected). 

If it were as simple as revenue raising the rate would reflect a more rational number, not the 1110 percent combined increase that NYC residents were treated to in eight short years.  There’s a sin tax and then there’s sinfully abusive taxation.  No doubt revenue is the bonus effect for lawmakers trying to balance the budget, and they certainly aren't blameless for going along, but it’s not the primary driver.  (And let me add here that anyone who entertains the thought that the street level cop is channeling the highest of their higher ups and thinking, “I’m going to make some money for the city today,” as a factor for taking action is a candidate for the purchase of the Brooklyn Bridge.) 

Following his first cigarette tax hike, Gov. Paterson told a radio station that in hindsight he and the legislature acted excessively, blaming a supportive public poll that provided cover.   

A description of the anti-smokers’ obsessive compulsive intolerance of all things smoking-related and the evil they feel it inflicts on the world (don’t forget “the children”) can be summed up by pointing to one of their own obscene advocacy ads:  A portrayal of the World Trade Center as two smoking cigarettes instead, with a tag line that smoking kills more people than were killed by terrorists since 9/11.  Intellect or conscience fully abandons them when they can’t or refuse to process the difference between someone rolling their own dice (a personally accepted risk) and having someone else load the dice with explosives and drop them on your head (definitive death by force).    

So when Linda Chavez called the sale of loosies “a crime with no victims” the sound you heard was that of hundreds of anti-smoker activists’ heads exploding.  But it’s their silence that follows that’s incriminating.

They normally could be counted on to make a statement in some manner about anything to do with “saving lives” by keeping cigarettes out of reach. It’s not like loosie sales aren't in their cross hairs.  As far back as 2001 the American Cancer Society was roaming around Harlem with recruited teen volunteers, looking for violators, according to an article in The New York Beacon headlined, “Denounce Sale of Loosies in Harlem.”  

Whether through social media outlets, request from media or via press release, you can always find the addition of their two cents on any topic related to tobacco or smoking,  Their relationship with city government is so tight that they are given space for statements in the mayor’s office press releases (sample) on the subject.  Fire-safe cigarettes were about fire, not smoking, yet they were even at the vocal forefront of that push.   

So where are they now when the tobacco control issue is undeniably related to the story of Eric Garner? His death has them hiding behind other’s indignation to suggestions that this tax policy plays any meaningful part in this.  Helpful is that the media appears not to even be looking for them for comment.  That or they’re not having their calls returned.  At least one paper looked for me.   

In that radio interview, Paterson went on to concede high cigarette taxes are built upon something greater than just the revenue benefit: “[A]nd I think unfortunately for smokers the whole industry is to some degree under attack and perhaps it becomes an avenue that public servants know they can get away with because the public doesn't seem to care.”

Under attack by and the control of Big Anti-Smoker.  It’s only that the NYPD has been conscripted into their army to carry out their mission.  

The lifestyle police, not the NYPD, are responsible for the death of Eric Garner.  When will they be made to answer for themselves?

Eric Garner is what the public reaps from their indifference to issues that don’t directly affect them or, conversely, agree with the “attack.”   The “merchants of death” (aka tobacco companies) screamers – aided by the indoctrinated and apathetic -- has caused the death of a merchant, not the industry.

In this most particular instance, the protesters should first look in a mirror and then "regroup" in front of the right door.  So should everyone else.

______________________________________________________________

Epilogue:  Taken to its logical conclusion you can credit the anti-smokers’ account with two more bodies...

Disagreement with Tobacco Control Now Punishable By Law

What century or what country are we living in?

In the 17th century Galileo was found “vehemently suspect of heresy” for holding beliefs that contradicted the church, forced to recant and sentenced to house arrest for the rest of his life.

These days in Russia, you can be fined for exposing children to homosexuality because it promotes social acceptability in defiance of the government’s position.

Surely not the American way, right? 

Yet when the issue is tied to smoking, New York City emulates both in time and place.

Leaning heavily on one of the soviet-style anti-smoker tenets that even the sight of smoking or appearance thereof sends a message that undermines their attempt to relegate it to a “socially unacceptable” and “deviant” behavior, Ex-Mayor Bloomberg, the city council and his health commissioner demonstrated that the truth is only what they say it is when it came to banning the use (vaping) of electronic cigarettes (e-cigs) wherever traditional smoking is banned.

On the local level, government determination of what the truth will be to advance its legislative agenda is bad enough. But when at the same time a U.S. District Court judge, by court order, makes that established truth mandatory of others – dissent punishable by law -- at the urging of the U.S. Department of Justice, the breath of the Inquisition is on our national necks.

In regard to NYC, when former U.S. Surgeon General Richard Carmona writes a formal letter to all council members urging them to reject the proposal to ban e-cigs because there was no valid social or scientific reason to do so, he’s dismissed and suddenly a disagreeing city health commissioner is more the expert than he is.  

Dr. Carmona served as the SG between 2002 and 2006.  It was he who spun gold for the rejoicing anti-smoker movement with the release of his 2006 Surgeon General’s Report, “The Health Effects of Secondhand Smoke,” from which emerged two press conference bullets intended to be the coup de grace to the head of all dissent:  “The debate is over,” and “no safe level.”  He was worshiped. To this day, those (his) words are considered unassailable by many.  

Today Carmona serves on the board of directors for NJOY Inc., a large electronic cigarette company.  

At first blush, it’s understandable that the council could find Carmona’s motive suspect – that he was serving the interests of the company for which he now works. But that suspicion can only be raised if one also entertains the idea that he is a man of questionable character who will say what benefits him at the moment. 

People can change jobs but a person’s nature is innate and achieved intellect fixed.  Carmona’s views can’t, at one’s pleasure, be scholarly gospel, and the next moment unreliable or dishonest. 

No matter.  Whether his press conference words in 2006 were, as many have charged, nothing but political because no support for them can be found in the actual Report or he’s dead right about e-cigs falling short of “unsafe,” he’s a man who was once revered for delivering the goods but who wasn’t even given the time of day now. (Perhaps a victim of his own doing – “no safe level” no matter what -- coming back to bite him in the ass?)  Buck the state dogma and it’s “Carmona who?”

On the federal level, in a racketeering (RICO) case brought against the tobacco industry by the U.S. Dept. of Justice, U.S. District Court Judge Gladys Kessler ruled in 2006 that the industry had lied and ordered “corrective statements” as part of the punishment.  But it took until now for an agreement to be reached on the content and placement (top newspapers and on major TV networks).

No issue is taken with the prescribed statements about primary smoking.  That ship has sailed.  What’s at stake here are the ordered statements about secondhand smoke. 

They begin with the major tobacco companies having to state that they “deliberately deceived the public about the health effects of secondhand smoke,” followed by a “The truth is…” list of effects that end with Carmona Who?’s words, “There is no safe level of exposure to secondhand smoke.”   

That the tobacco companies have filed an appeal over the wording is irrelevant at the moment. Two branches of government acting in concert have just directed that not only will they not hear of disagreement but that one must be forced to speak the government line.  No less than a state religion has been established right under your “smoke-free” noses.  The gospel is only what the government’s Anti-Smoker Church says it is and you have no choice but to adhere to it.

What’s remarkable is the anti-smoker crusaders’ triumphant wave of this decision -- rendered single-handedly -- as the absolute “truth” (the tobacco companies had lied) when seven years later a jury of one’s peers in Charleston, W. Va., decided that five major tobacco companies, in a case brought against them by hundreds of smokers, “didn't intentionally conceal evidence regarding the dangers of smoking.”

Arguing who might be right or wrong is beside the point.  The point is that a bonafide difference of opinion does exist. Though the scales of justice could easily tip further in favor of a diverse collection of eight regular folk versus one possibly biased judge (more on that later).  

Nevertheless, in the world of Judge Kessler and her champions, how soon until these eight people will be ordered to retract their verdict and replace it with a government mandated corrective statement?

Despite the stranglehold our modern day Prohibitionists’ have on the flow of information, effectively blacking or drowning out opposing views in the news, claims of effects on health by so-called secondhand smoke remains controversial. The science is not settled.  In fact, the “undeniable” has crystal clearly been denied.

For instance, it was only a few months ago that an article on a soon-to-be published study was printed. Headlined “No Clear Link Between Passive Smoking and Lung Cancer” in the Journal of the National Cancer Institute, the available abstract says, "A large prospective cohort study of more than 76,000 women... found no link between [lung cancer] and secondhand smoke."  

Buy the full paper and there you’ll find Dr. Gerard Silvestri adding, "We've gotten smoking out of bars and restaurants on the basis of the fact that you don't want to die. The reality is, we probably won't."

So how is holding a position that is apparently supported by contrary material a lie? If anyone is deliberately deceived it’s we the people from whom this latest study was kept.  Find it reported by mainstream news.  I dare you.

There’s more.

In 2003 Drs. James Enstrom and Geoffrey Kabat had their study on secondhand smoke published in the British Medical Journal that concluded there was “no significant relationship between environmental tobacco smoke (ETS) and tobacco-related mortality.”  

Just this past July Dr. Ronald Bayer from NYC’s Columbia University Mailman School of Public Health emerged with his analysis about smoking bans in outdoor spaces like beaches and parks. “Far from definitive and in some cases weak” was what he concluded in response to claims that it causes harm to health, extraordinary litter, and influences young minds (promotes acceptability).

In an extensive NPR interview Dr. Bayer emphasized, “The evidence of harm to non-smokers on the beach or in a park from someone smoking is virtually non-existent.”

Criticism of these papers doesn't absolve any who force a confession of sin from a defendant who can provide tangible reason for honestly believing differently. 

That’s not to say they haven’t tried to essentially airbrush the counter evidence out of existence (the same way the anti-smokers have airbrushed cigarettes out of photos) to create a synthetic “no alibi” environment.

Kessler, in agreement with a DOJ argument as part of the RICO case, goes as far as indicting the Enstrom and Kabat paper as a lie itself.  That tacitly implicates all such studies as fabrications simply for its guilt-by-association subject matter.

Their work and reputations dragged into this case, these researchers’ honesty and integrity were put on co-trial without any representation.  Their part was what the behind-the-scenes leaders in the anti-smoker movement told the DOJ it was and cemented by the testimony of one.

Having already gone to great lengths to defend his paper when it was first released from a vicious attack by those with an “ideological and political agenda,” Dr. Enstrom’s response to this further injustice was to write, “The Judge repeated in her opinion a number of the misleading and inaccurate statements about my study[…] However, the Judge identified no specific errors in the study and identified no scientific misconduct by me. At no time was I ever given an opportunity to challenge or refute the statements made about me and my research in the USDOJ Findings of Fact, in the trial itself, or in the Kessler opinion.” 

The previous charge of bias in and by this court doesn’t appear so far-fetched.

“Deliberately deceived”?  

Considering that the aforementioned evidence to the contrary regarding secondhand smoke is but the tip of the iceberg, that’s as grotesque a charge as if a court ruled (as if it was its place to even do so) believers of human evolution are willful liars rather than leaving them alone to lean on a scientifically based difference of opinion no matter how hotly contested by others.  Would we not be aghast at the very idea that the debate was a matter of permission by a court at the urging of a government agency?

But in light of NYC’s behavior and especially the actions of Judge Kessler and the DOJ  how soon until Silvestri, Enstrom, Kabat, Bayer and the many other researchers who have reached similar conclusions or any one individual will be hauled into court and tried for the act of entertaining unacceptable thoughts, punishable by law?  If the crime is going against government doctrine why stop at industry?

Unless they want to admit persecution (“Big Tobacco is evil”) as the grounds for prosecution, the court is clear; it’s ultimately what was said, not who said it.  Galileo went down for asserting the earth revolved around the sun, not because he was Galileo. 

Let it also be clear none of this is to defend the tobacco companies that are but a red flag exhibit, but to denounce the elimination of dissent.

Despising the tobacco industry is no refuge for what the secondhand smoke portion of those “correctives” portend for everyone’s freedom to dissent when one is refused their honest belief, based on multitudes of material, that something remains genuinely open to debate.  

The NYC Council is Way Out of Bounds on Anti-Smoking Measures

The NYC Council has gone loophole closing crazy. 

Do you know, that if they pass the two latest bills in their relentless war on smokers that everyone in New York City becomes a potential smoker?  Not only that but a potential target of the cigarette police!

They've taken to redefining what constitutes a “cigarette.”  Here it is as it appears in Intro 1021-2013 – Sale of Cigarettes and Tobacco Products:

"Any roll for smoking made wholly or in part of tobacco or any other substance, irrespective of size or shape and whether or not such tobacco or substance is flavored, adulterated or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material but is not made in whole or in part of tobacco."

Anything can be a "cigarette"! 

Anything can be conceivably "smoked." Just look to prison inmates who reportedly roll many things into "cigarettes" such as tea leaves wrapped in bible pages.

So too can anyone try to "light" anything in order to draw from it by mouth.  However, I point out also that "Any roll for smoking..." doesn't necessarily mean it must be lit, only that there be an intention (or consideration) of "smoking."

Whereby even a taco can be a "cigarette."  It's made of "any other substance, irrespective of size or shape," "the wrapper or cover of which is made of... any other substance or material..."

An ice cream cone, a leaf from a tree with bark in it...  all a "cigarette," according to this, if someone says or thinks it "for smoking."  I presume if someone puts a match to the end of it then it really is all over -- no question at all then it's a "cigarette."

(“You with the pixie stick!  I know what you plan to do with that.  Up against the wall!”)

In the council’s over-zealousness to make sure they've got “cigarette” covered (no doubt instructed by the anti-smoker organizations that provide them with the language for such proposals) so that no one gets away from their smoker-hating clutches they've proven themselves ridiculous.

And that’s not the end of their non-stop crusade to get every last smoker or anyone who even thinks about it.

In the same proposal there's this (all underscores mine):

"Retail dealer." Any person other than a wholesale dealer engaged in selling cigarettes.  For the purposes of this chapter, the possession or transportation at any one time of more than four hundred cigarettes by any person other than a manufacturer, an agent, a licensed wholesale dealer or a person delivering cigarettes in the regular course of business for a manufacturer, an agent or a licensed wholesale or retail dealer, shall be presumptive evidence that such a person is a retail dealer.
"Person" means any natural person, corporation, partnership, firm, organization or other legal entity.
Whenever a police officer... or a peace officer employed by the department of finance, including but not limited to the sheriff, undersheriff or deputy sheriffs  of the city of New York designated as peace officers..., shall discover (1) any cigarettes subject to any tax provided by chapter thirteen of this title, and upon which the tax has been paid and the stamps affixed as required by such chapter, but such cigarettes are sold, offered for sale or possessed by a person in violation of section 11-1303, 17-703 or 20-202 [all license related] of this code,... he or she is hereby authorized and empowered forthwith to seize and take possession of such cigarettes...

Got that? "More than four hundred cigarettes."  Four hundred cigarettes are equal to a measly two cartons.  So if you’re going to stay with friends for a while or heading out of town and want to bring enough cigarettes to cover the time you’ll be away, you cannot carry two cartons plus one more cigarette or more lest you find yourself presumptively guilty of being a dealer (thus needing a license) and your personal smokes confiscated and subjected to a fine. Note that the language is for otherwise perfectly legal (tax stamp and taxes paid) cigarettes.

Finally there’s their smoking gun (wait, that’s a “cigarette” now) – a tacit confession that all along smoking bans weren’t about the alleged need to protect nonsmokers from cigarette smoke.  It’s in this new legislative intent’s language.

All bills open with the sponsor(s) rationale for the proposal.  All three current anti-smoker proposals (one having been dropped just this week) contain the following:

"In 2002, the City launched a comprehensive program to reduce and prevent tobacco use.  By implementing multiple strategies -- including legislation restricting the use and sale of cigarettes and tobacco products..."  (emphasis mine)

As you recall, it was during 2002 that Bloomberg proposed and then signed into law the indoor smoking ban law that ended all exemptions and added bars, pool and bingo halls, etc.  This is what they refer to when said "In 2002..."

Go back to the city documents from that time (specifically from the Dept. of Health) and what they advanced as the rationale then was "protection from secondhand smoke."  For instance see these:

http://www.nyc.gov/html/doh//downloads/pdf/smoke/shsmoke.pdf

http://www.nyc.gov/html/doh//downloads/pdf/smoke/sfaa-brief-book.pdf

From those, it wasn't about a way to coerce smokers themselves.

From the DOH's FAQ sheet on the matter: 

Q: This is America. Don’t citizens have a right to smoke, even if it hurts them? 

A: Yes, smokers are free to continue to smoke—as long as they don’t expose others involuntarily to cancer-causing chemicals. American democracy has always created laws to protect society from threats to our health and safety. Sometimes limits must be imposed on the right of one individual to engage in behavior that, while acceptable if it affects the individual only, is harmful to others. (emphasis mine)

Only as a "by the way" do you find a stray mention about "also helping smokers to quit" in those documents.  Over 99% of their documents' texts are dedicated to "secondhand smoke" reasoning. By and large it was sold, and all we ever heard, as a "protection" law for non-smokers.

Yet in today's bills the "secondhand smoke" ruse is dropped and the intent of the smoking ban is described the way opponents always countered its intent really was:  "[T]o reduce and prevent tobacco use...[by]... restricting the use... of cigarettes..."   There is absolutely no mention of "secondhand smoke" in any of them.

Just like you’ll find no mention (as of this writing just one day prior) of what exactly is on the agenda for this Wednesday’s full council meeting on their web site’s calendar.  The meeting is noted, the details section is blank. Dirty deeds never get advertised and the perpetrators hide like cowards.