I got into a bit of a legal tet-a-tet with my suburban Connecticut, non-smoker mother in law the other day about the recent smoking ban in New York City. My mother in law has come to New York City and visited with my wife and I several times in the past; however she’s much more a country bumpkin than a city slicker.
That said she’s a child of the 70’s and she spent her time being wild and free. However that time has largely passed and she’s maybe reared back as many of us will eventually do to a far more conservative stance.
Still, the issue was the NYC smoking ban and we got to talking about the matter. Her daughter, my wife, is a big asthma sufferer and my lady is very sensitive to second hand smoke. But when her mother started prattling off about the First Amendment right she had to walk down the street and smoke her brains out, if she wanted to, I was taken aback. I listen to a lot of talk radio and I hear that thrown out a lot; “My First Amendment Rights!” So I figured right there I would open up the old government reference and get re-schooled on the Bill of Rights.
The First Amendment does not apply to the Right to Smoke. The First Amendment reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to assemble, and to petition the government for a redress of grievances.”
When I read that to mom, she was sort of stoked. She said, “See! I can peaceably assemble and smoke in the middle of Central Park if I wanted to.” My wife chimed in that she would still be in violation of law; she could though hold up a sign and say she doesn’t like the fact that she can’t smoke, which was a lot more in keeping with how I took the law to mean.
But then I did a little more reading down The Bill of Rights and I saw one Amendment which may apply to the NYC smoking ban. The Eighth Amendment. As everyone who smokes in NYC likely knows the fine for smoking where you’re not supposed to gets pretty steep; $50. There are 20 cigarettes in a standard ‘pack’ of cigarettes. That means if the smoker gets fined for each cigarette they smoke because they are smoking all 20 in public plazas, parks, or beaches, that you’re no longer talking about a $7 dollar pack of cigarettes anymore; you’re talking about a $1007 pack of cigarettes.
The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Even for someone like me who’s opposed to smoking, $1000 bucks per pack seems a tad high. This could be one of the reasons why the smoking ban in NYC has so many loopholes. Yes if you’re walking on the Great Lawn, puffing away in a field full of small children and an officer sees you, you’re likely to get a fine. But I’ve seen numerous people out in Times Square, Herald Square, and Union Square over the last several weeks smoking like nothing is the matter. It were as though the offenders were almost daring the NYPD to come down and write them up. In fact the only person to be fined by this law as of last check was a single photographer who was stoking officers to write him up.
Whatever the case about this new NYC smoking law, the first person to come to a lawyer with a single pack of cigarettes and 20 violations for smoking could say that their Eighth Amendment Rights were violated! Maybe that’s why Bloomberg and the NYPD are so light on enforcement!
A child of a couple of Marine brats from Corona, Jesse Schmitt has New York City deeply rooted in his blood. Having lived in different neighborhoods in Manhattan, the Bronx, Queens, and Brooklyn and tasted every corner of the five boroughs possible, Schmitt has an informed New York voice.