Wednesday, June 13, 2012

Media Advisory: Press Conference Regarding Smoking Ban Lawsuit Against City of Indianapolis




Date:               June 13, 2012

Time:               3:00 pm

Location:         Federal Courthouse (steps on southeast side of building)
                         Indianapolis, Indiana

 Contact Person:        Paul K. Ogden
                                    317-297-9270 office
                                    317-728-6084 cell

Participant:    Mark Small, Attorney for Plaintiffs in Smoking Ban Litigation

             Today, Attorney Mark Small, on behalf of 43 plaintiffs, including Indianapolis bar owners and bar patrons, filed an amended complaint in Federal District Court.  Mr. Small will be holding a press conference on the steps of the Federal Courthouse (southeast side) at approximately 3 pm to answer any questions members of the media may have about the lawsuit.

             The amended complaint names Mayor Greg Ballard, the City of Indianapolis, County of Marion, and the Indianapolis City-County Council as defendants.  The amendment is a step toward consolidating the numerous lawsuits filed in the wake of Mayor Ballard signing the smoking ban ordinance as well as adding additional legal theories.

             The amended complaint alleges the smoking ban infringes on the Plaintiffs' due process rights, violates the equal protection clause by unfairly targeting their businesses while allowing other businesses to permit smoking, amounts to a taking without compensation under the United States and Indiana constitutions, violates the Plaintiffs' free association rights, and infringes on the liberty rights of the Plaintiffs as guaranteed by the Constitution.

             In filing the lawsuit, Attorney Small noted: "The right of an owner of a private business on private property to allow patrons or customers to engage in otherwise legal conduct is among those rights not specifically enumerated in the Constitution or Bill of Rights, but would have been a right the Framers would have believed unnecessary to specifically protect as they convened over mugs of ale and pipes of tobacco during that summer of 1787 in Philadelphia."

             The lawsuit requests that the Federal District Court declare the smoking ban to be unconstitutional and the City be enjoined from enforcing the ordinance.

             Mr. Small has a hearing early this afternoon and will not be available to answer questions before the press conference.  Following the press conference, Mr. Small can be reached at his office at 252-4800.

 **                    **                    **                    **                    **                    **


Unknown said...


artfuggins said...

This will be dismissed so quickly that it will cease to be an issue.

Cato said...

Let it go. The government wants a ban, so they'll say whatever is necessary to make that ban legal. Property rights and freedom to associate, assemble and contract don't mean anything in America. They use dismissal in place of doing actual work or legal reasoning, and if you make it past dismissal, this case will lay down some horrible law.

You know, if you review this country's history, it's never been truly a free place.

patriot paul said...

Citing the Framers' vices is a weak argument. Would anyone argue we should return to the slave days just because the Framers owned slaves?

Ghostwriter Judiciary said...

Patriot Paul,
We amended the constitution to get rid of that vice.

Paul K. Ogden said...

So, Art, you don't think the Plaintiffs will take an appeal if it is "dismissed quickly?" This is a type of an issue that will be decided in the 7th Circuit, maybe even the Supreme Court.

Irishking23 said...

Is Skoal also included in the ban? I swear that my mouth lets off some smoke after chewing a pinch of Skoal.

Cato said...

Paul, the 7th Circuit is an establishment court. A keen observer can accurately predict 99% of their rulings. Further, the 7th Circuit sits in the home of one of the nation's most comprehensive, most-applauded and longest-running smoking bans. The 7th Circuit is effectively "Chicago's Court." They have a horrible record upholding individual liberty against state power. You know you'll lose there.

The Supreme Court won't take the case, especially after reviewing the rough treatment the 7th Circuit will give you. If they do review it, the other side will be giddy, because the court will rule for them so thoroughly the case will appear collusive.

Just accept that this country has become totalitarian, and I don't mean that in a Maoist or Stalinist employment, wherein agents of the state enter homes and abscond with persons. Rather, "totalitarian" simply means that there is no avenue of human action that is beyond the power of the state to control. "Total" government, if you will.

Indeed, I dare you to conceive one facet of your life that the state could not enter, control and regulate, if they desired.

This is not a free country. You'll waste tremendous political capital fighting this case when the outcome is so clearly known.

The great success of a totalitarian state is to control without speaking. In America, all understand that the government is all powerful and will use all of its arms to protect any body part that is attacked. We all know what cases are most likely to win or lose, regardless of whatever a beloved but disregarded and impotent foundational principle might hold to the contrary. Since we already know how cases will be decided, and since the total government can count on the support of the governed to support it religiously, attorneys don't file cases that oppose government will, because those attorneys suffer social insult and become the future target of government attack.

We're not discussing a smoking ban. We lost the right to do as we want with smoking, years ago, when we let them say driving was a privilege and that marijuana was illegal. The ability to ban one thing is the ability to ban all.

Fight for every freedom, or you have none.

Irishking23 said...

It's ironic that people can eat whatever they want and however much they can wolf down leading to widespread obesity, including consequential health problems. The government has not done much, if anything,to try to ban that. However, they are gung ho to ban smoking in bars under the guise that it is a public health threat.

Irishking23 said...

I agree with Cato that the 7th Circuit is an establishment court and it has been that way for a long time. It chews up and spits out claims of violations of civil rights and liberties.

Septly said...

Whether one agrees a smoking ban is good public policy or not is quite different from whether it is an unconstitutional law.

For years, thee have been smoking bans in effect throughout the U.S., and they have never been struck down as unconstitutional.

Driving is a perfectly legal activity, but the government can and does restrict how and when and even if someone can drive.

Smoking is a legal activity, but as it can cause direct harm to others, like any activity that causes pollution, the government is restricting the manner and place in which it may occur around the general public.

It is not the same as telling someone they cannot eat a sundae, etc. Sundaes may not be good for you, but I can sit right next to someone eating a sundae and it has no direct effect on me.

Again, whether it is good public policy or not to have a smoking ban is another matter. Maybe, there are better and less intrusive ways to mitigate the effects of smoking, but public policy is decided by the legislature, not the courts. If the voters are unhappy with how the legislature makes a decision, then they can voice their opinion to their elected officials, or vote them out of office.

marksmall2001 said...

Do you mind if I crib, for the brief(s) in the case, a few passages of what you wrote? I do not wish to debate your pessimism about the chances for our case. But the governmental reach into private lives is at the heart of my argument, especially Count V, paragraph 76.

Pete Boggs said...

? What happened to the right to associate / contract...

Cato said...

Of course, Mark.