PRIVACY IN THE HOME LEGAL FUND
Privacy in the home against intrusive government is entitled to an unparalleled level of protection.
" ‘Big Brother’ cannot, in the name of Public health, dictate to anyone what he can eat or drink or smoke in the privacy of his own home.” [emphasis theirs]
-- People v. Sinclair, 387 Mich. 91 (1972)24
The U.S. Supreme Court essentially echoed that when it wrote:
“The Constitution extends special safeguards to the privacy of the home… It is hardly necessary to catalog the myriad activities that may be lawfully conducted within the privacy and confines of the home, but may be prohibited in public.”
-- United States v. Orito, 413 U.S. 139 (U.S. 1973)
One would hope that no American citizen would disagree with this and want to safeguard that at all costs.
This is why our grassroots organization, C.L.A.S.H. (Citizens Lobbying Against Smoker Harassment), is asking for your help to fund its lawsuit against the U.S. Dept. of Housing and Urban Development (HUD) that has finalized a nationwide rule that bans a traditionally legal activity in the privacy of one’s own home, effective July 31, 2018. The suit will be filed in the District of Columbia on or before that date. C.L.A.S.H. is represented by the law firm Joshpe Mooney Paltzik, LLP .
The primary grounds on which C.L.A.S.H. is basing its suit are as follows:
1. The fundamental right to privacy to engage in a legal activity in the confines of one's own home.
2. HUD, as a federal agency, has exceeded its authority. The power to set policy on matters of alleged public health is reserved by the states.
A full briefing of the legal arguments can be viewed here .
It does not matter that the legal activity in question is smoking cigarettes or cigars and, yes, using *electronic cigarettes, or that the home in question are the apartments of public housing residents. What matters is that if one kind of traditionally legal activity in one kind of private home can come under assault by government then it’s open season on any traditionally legal activity in any private home. Let them in one door and they’ll be at your door next.
(*HUD has left the inclusion of e-cigs up to each local public housing authority’s discretion and many are choosing to include them in this ban.)
Any apathy toward public housing residents because one believes it’s not their home if they are receiving financial assistance will find themselves wondering what happened when this policy invades your own home.
The proponents of anti-smoking policy are notorious for their carefully crafted incremental incursions and are hoping you have no sympathy for public housing residents and remain silent so they can claim a victory here in order to move into more areas of private residency next.
As a prime example, a law firm that represents a NYC real estate board is lending this advice to privately held building owners:
“Based on the rationale for adopting the HUD Rule [management may consider] screening prospective apartment purchasers and permitted occupants so as to eliminate smokers [altogether].”
Seems not only will you not just be able to engage in a traditionally legal activity in your own home but will be refused a home entirely just because of who you are.
Additionally, from a legal standpoint, the courts have determined that public housing residents are entitled to the same constitutional privacy protections afforded to any private home so assertions to the contrary are misguided.
Importantly, many public housing residents are disabled veterans and the elderly. Do you really want to tell that vet that they don’t deserve a fundamental right to privacy in their home because taxpayers are subsidizing it?
But most of all a lack of sympathy in this situation puts your own home at risk for the same later. Borrowing from another court’s opinion to sum up what your role plays by helping to defeat HUD:
"The public has a powerful interest in the maintenance of constitutional rights, particularly the right to be secure in one's home from unconstitutional invasions by the government… The decision of this Court is guided by several principles: ... all Americans are bound together in law and in fact. The erosion of the rights of people on the other side of town will ultimately undermine the rights of each of us.”
Donations can also be snail mailed (payable to NYC C.L.A.S.H. Inc.) to:
NYC C.L.A.S.H., Inc.
P.O. Box 1036
Brooklyn, NY 11234
Donations are not tax-deductable. NYC C.L.A.S.H., Inc., is a not-for-profit 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. We have never received funding from the tobacco industry (but we'd take it if ever offered).
(Also find us on Facebook )
"NYC Smokers Group Sues Over Ban In Public Housing"
"National Ban on Smoking in Public Housing Is Unconstitutional, Lawsuit Says"
"Our Opinion: Court should strike HUD's public housing smoking ban"
Within the press release you will also find a link to a copy of the filed legal paper (complaint) or view it here:
On Oct. 9, 2018, HUD filed their answer to our complaint.
On November 1, 2018, the following schedule for this case was determined:
Plaintiffs' Summary Judgment motion due by 2/4/2019.
Defendants' Response to Plaintiffs' Motion for Summary Judgment and Cross-Motion due by 3/21/2019.
Plaintiffs' Response to Cross-Motion and Reply to Motion for Summary Judgment due by 4/22/2019.
Defendants' Reply to Cross Motion due by 5/22/2019.
So as you see this case is live. Funding is still desperately needed. Thank you!