Gallagher v. City of Clayton

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation699 F.3d 1013
Docket NumberNo. 11–3880.,11–3880.
PartiesArthur GALLAGHER, Plaintiff–Appellant v. CITY OF CLAYTON; Linda Goldstein, Mayor; Craig Owens, City Manager; Patty DeForrest, Parks Director; Thomas J. Byrne, Police Chief, Defendants–Appellees.
Decision Date17 December 2012


W. Bevis Schock, argued, Hugh Athelstan Eastwood, on the brief, St. Louis, MO, appellant.

Thomas Michael Ward, argued, Kevin M. O'Keefe, Mitchell A. Margo, Samuel John Vincent, III, on the brief, St. Louis, MO, for appellees.

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.

RILEY, Chief Judge.

Arthur Gallagher sued the City of Clayton, Missouri (City), and several city officials (defendants) in their official capacities under 42 U.S.C. §§ 1983 and 1988, challenging a city ordinance prohibiting outdoor smoking on certain public property. Gallagher alleged the ordinance violated both the United States and Missouri Constitutions. After the defendants moved for judgment on the pleadings, the district court 1 dismissed Gallagher's federal claims as facially implausible and declined to exercise supplemental jurisdiction over his state law claim. Gallagher appeals the dismissal of his federal claims. We affirm.


Gallagher is a resident of the City who regularly uses the City's parks and “ecstatically enjoys smoking tobacco products while doing so.” On August 24, 2010, the City's Board of Aldermen (Board) enacted Ordinance 6118 (Ordinance) prohibiting the “possession of lighted or heated smoking materials in any form ... in or on any property or premises owned or leased for use by the City of Clayton, including buildings, grounds, parks, [and] playgrounds.” The Ordinance established several exceptions, including allowing outdoor smoking on “streets, alleys, rights of way and sidewalks other than sidewalks and pedestrian paths in parks,” but gave the City Manager discretion to prohibit smoking in these areas during “community events, fairs, festivals, neighborhood events and similar public gatherings.” The Board cited public health and safety, litter reduction, and aesthetic rationales for enacting the Ordinance.

On March 2, 2011, Gallagher sued the defendants under 42 U.S.C. § 1983, alleging the Ordinance unconstitutionally prevented him from smoking outdoors in city parks. Gallagher challenged the constitutionality of the Ordinance on five grounds under the United States Constitution and on one supplemental ground under the Missouri Constitution. Specifically, Gallagher asserted the Ordinance (1) failed rational basis review “because the health threat of secondhand smoke from outdoor tobacco use is de minim[i]s”; (2) failed strict scrutiny review “because smoking is ... a fundamental right, and the Ordinance is not narrowly tailored to protect that right”; (3) failed intermediate scrutiny review because “smokers are a quasi-suspect class due to discrimination and second class categorization”; (4) failed heightened rational basis review because “the real purpose of the Ordinance is to express animus toward smokers”; (5) is unconstitutionally vague because it allows the City Manager unfettered discretion to “ban outdoor smoking at festivals and events”; and (6) [d]enies smokers their Missouri Constitution ... liberty and pursuit of happiness rights.”

On June 1, 2011, the defendants moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The district court granted the defendants' motion on December 9, 2011, dismissing Gallagher's federal constitutional claims as facially implausible and declining to exercise supplemental jurisdiction over his state law claim. Gallagher appeals the dismissal of his federal claims, contending the district court erred on six grounds.


We review de novo a district court's grant of a motion for judgment on the pleadings, using the same standard as when we review the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir.2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While this court must “accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party,” United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.2000), [a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

A. Fundamental Right

Gallagher first contends the district court erred in dismissing his claim that smoking outdoors constitutes a fundamental right warranting strict scrutiny of the Ordinance. The doctrine of substantive due process protects unenumerated fundamental rights and liberties under the Due Process Clause of the Fourteenth Amendment. See Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). A fundamental right is one which is, “objectively, ‘deeply rooted in this Nation's history and tradition,’ id. at 720–21, 117 S.Ct. 2258 (quoting Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion)), “and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed,’ id. at 721, 117 S.Ct. 2258 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). Legislation infringing a fundamental right must survive strict scrutiny—the law must be “narrowly tailored to serve a compelling state interest.” Id. (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)) (internal quotation marks omitted).

Gallagher proposes we declare smoking (1) a new fundamental right “because of tobacco's ancient traditions in American history” or (2) a part of an established fundamental right to bodily integrity. He concedes, however, that “no court has adopted his position.” Turning to Gallagher's first proposition, we have previously addressed a legislature's ability to regulate smoking. In Steele v. County of Beltrami, Minn., 238 Fed.Appx. 180 (8th Cir.2007) (unpublished per curiam), we affirmed the district court's dismissal of claims brought by plaintiffs alleging a county ordinance prohibiting smoking in indoor public places and places of work violated their rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments. See id. at 181–82. We noted the plaintiffs “fail[ed] to provide any sound legal argument or authorities supporting their claimed constitutional rights to smoke” and “no relevant authority support[ed] these rights under any theory.” Id. at 181. We concluded regulation of smoking was “better left to the people acting through legislative processes” than creating a “judicial remed[y] in the United States Constitution. Id. (quoting Gasper v. La. Stadium & Exposition Dist., 418 F.Supp. 716, 722 (E.D.La.1976)) (internal quotation marks omitted).

Gallagher attempts to distinguish his case from Steele, contending he has offered “sound legal arguments” for his proposition, unlike the plaintiffs in that case, by identifying many examples of smoking's prevalence throughout American history. Despite this distinction, we decline Gallagher's invitation to declare smoking a fundamental right. “The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field” (substantive due process), because “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Even were we to assume the right to smoke outdoors on public property is “deeply rooted in this Nation's history and tradition,” Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (quoting Moore, 431 U.S. at 503, 97 S.Ct. 1932) (internal quotation marks omitted), we do not believe the right is “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed,” id. (quoting Palko, 302 U.S. at 325, 326, 58 S.Ct. 149) (internal quotation marks omitted). Gallagher has failed adequately to demonstrate how the Ordinance would so threaten liberty or justice as to trigger strict scrutiny under the Due Process Clause of the Fourteenth Amendment. “The doctrine of judicial self-restraint [thus] requires us to hold that outdoor smoking on public property does not constitute a fundamental right. Collins, 503 U.S. at 125, 112 S.Ct. 1061.

Nor do we accept Gallagher's proposition that smoking constitutes part of an existing fundamental right to bodily integrity. Gallagher suggests smoking in public is an “intimate part of life” akin to the right to engage in consensual, private sexual activity, see Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and to a woman's “bodily integrity right to have an abortion,” seePlanned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Lawrence, however, did not expressly recognize a “fundamental right.” The Supreme Court held the Texas statute at issue “further[ed] no legitimate state interest which c[ould] justify its intrusion into the personal and private life of the...

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