Indianapolis-based attorney Mark Small filed a motion Wednesday in federal court to combine several lawsuits filed against the ban. Small is representing 43 plaintiffs, including 10 bars, one bar customer and one bar employee.
The smoking ban that took effect June 1 strengthened the city’s previous ban to also include bars. Several bar owners say the ban is nothing more than an attempt by the government to take away their rights.
Historically, courts have upheld challenges against smoking bans. However, Small is taking a new approach. He’s arguing under the Ninth Amendment, which addresses the rights of people who are not specifically defined in the U.S. Constitution.
“The right of an owner of a private business on private property to allow patrons and customers to engage in otherwise legal conduct is among those rights not specifically enumerated in the Constitution or the Bill of Rights,” Small said, “but would have been a right the framers would have believed unnecessary to specially protect as they convened, over mugs of ale and pipes of tobacco, during that summer of 1787 in Philadelphia.”
Although that’s a new take on the issue, David Orentlicher, a professor at the Indiana University School of Law-Indianapolis, said it’s not likely to be upheld in court.
The Ninth Amendment was an attempt by the Founding Fathers, he said, to assure people their liberties extended beyond those specifically listed in the Bill of Rights. It’s not likely to be used effectively in court, he said, to strike down a local law.
“The reality is you have to do something more than invoke the Ninth Amendment,” he said.
Small is naming Indianapolis Mayor Greg Ballard and the City-County Council as defendants in the lawsuit.
Marc Lotter, spokesman for Ballard, said the smoking ban was a progressive step for the city. Nationally, 493 cities and towns have passed smoke-free laws covering all workplaces, restaurants and bars. Those are among nearly 1,000 cities and counties that have adopted smoking bans of any kind.
“I think we’re seeing a very positive response in many parts from people who are enjoying being out in the smoke-free bars,” Lotter said. “It’s definitely moving the city forward in being welcoming to visitors and guests.”
Small thinks he has a case to make.
“I believe that what we are arguing is valid under the Constitution of the United States and under the constitution of the state of Indiana,” Small said.
Several of Small’s plaintiffs stood by his side — smokes in hand — during a news conference Tuesday outside the federal courthouse.
Rhoda Walker owns Casino, an Eastside bar. She says business has dropped off since the ban was enacted, with many patrons buying a single drink before heading outside to smoke — and then leaving.
“I’ve run this bar for 17 years successfully, and now I hardly have any business,” she said. “And I don’t need someone to tell me if I want to smoke or not. If they don’t want to be around smoke, don’t come in.”
Becky Hicks says it’s the same at Pit Stop Bar and Grill, the Southside bar she owns. In fact, she says, soldiers fought wars to preserve the freedom Americans enjoy. Her son, she said, is a Marine.
“It is our right,” she said, “to choose whether we smoke or not.”