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Argument: Right to Freedom from Cruel and Unusual Punishment

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B v. Waitemata District Health Board [New Zealand] [July 08, 2013]

Two psychiatric patients and a nurse brought these proceedings against the Waitemata District Health Board (WDHB) challenging its Smoke-free Environment Policy which prohibited smoking in hospitals and surrounding grounds. The two patients were held in hospital under the Mental Health (Compulsory Assessment and Treatment) Act and were therefore unable to leave the hospital to smoke. The nurse was unable to leave the ward during her shift and was therefore unable to smoke during working hours. The applicants challenged the policy on traditional grounds of judicial review: illegality (including a failure to take into account relevant considerations); irrationality; and a breach of natural justice. They also alleged that the policy breached a number of rights under the Human Rights Act 1993 and New Zealand Bill of Rights Act 1990, including: unlawful discrimination against detained psychiatric patients compared to non-detained psychiatric patients; unlawful discrimination against smokers compared to non-smokers; unlawful discrimination on the ground of disability (because addiction to nicotine is a "disability"); the right not to be subjected to torture or cruel treatment; and the right to respect private life.

The Court rejected all of the applicants' claims and upheld the validity of the Policy. The Court found that, given that smoking is a health hazard and that District Health Boards have a duty pursuant to their governing legislation to prevent or restrict health hazards, it was entirely within the powers vested in the WDHB to have policies to stop smoking. The Court rejected the applicants' claim that the Policy should provide for smoking places because the WDHB was entitled to take into account that such areas would impose additional costs, as well as the risks to passers-by posed by passive smoking. The potential harm to employees from passive smoking was a further justification for the policy given that the Health and Safety in Employment Act 1992 requires employers to provide and maintain a safe working environment for employees.

The Court distinguished this case from the situation in the prison cases (see: Taylor v Attorney General & Ors (3 July 2013)) on the basis that the relevant section of the Smoke-free Environments Act 1990 relating to prisons assumed the existence of smoking within them; whereas, the section relating to hospitals made no such assumption.

The Court further found that there was no discrimination between detained psychiatric patients and non-detained psychiatric patients because all patients were treated alike. Further, there was no discrimination between non-smokers and smokers because nicotine addiction is not an "illness" or an "impairment" or a "disability" - while the applicants suffered some discomfort and distress, nicotine addiction is curable. Likewise, the Policy did not constitute "torture" because the withdrawal symptoms resulting from stopping smoking do not cross the relevant threshold of suffering, and the provision of NRTs to patients was humane and meaningful treatment for symptoms. The Policy also did not breach the right to respect private life contrary to the International Covenant on Civil and Political Rights because it was neither arbitrary nor unlawful, and in a hospital environment those who are in that environment have to accept limitations on their privacy.

Lastly, the Court found that, even if there had been a breach of the applicants' rights (which there had not), then the Policy was nonetheless justified because its purpose (to reduce smoking) was important in light of the damage that smoking does to persons and the community; the Policy was rationally connected to that purpose; and the Policy was proportionate and went no further than necessary to achieve its aims.

Elefteriades v. Romania [Romania] [January 25, 2011]

A prisoner brought an action against the Romanian government under the European Convention on Human Rights, claiming that his exposure to secondhand tobacco smoke while imprisoned violated his right to freedom from inhuman or degrading treatment.  The Court rejected certain of the prisoner's allegations that were not filed in a timely manner or for which domestic legal remedies had not been exhausted.  However, the Court found that the Romanian government violated his right to freedom from inhuman or degrading treatment under the Convention when it held the prisoner in conditions exposing him to tobacco smoke. The Court noted that the government failed to meet its obligation to protect the health of the prisoner by failing to provide the prisoner, who had been diagnosed with pulmonary fibrosis prior to the incidences in dispute, with smoke-free confines.

United States v. Philip Morris USA [United States] [August 17, 2006]

In 1999, the United States filed a lawsuit against the major cigarette manufacturers and related trade organizations alleging that defendants fraudulently misled American consumers for decades about the risks and dangers of cigarette smoking and exposure to secondhand smoke in violation of the Racketeer Influenced Corrupt Organizations Act (RICO). In 2006, the court found that defendants violated RICO and that there was a reasonable likelihood that defendants would continue to violate RICO in the future. On appeal, the district court’s findings were upheld, in part, vacated, in part, and remanded, in part, to the district court. After the U.S. Supreme Court declined to hear appeals from both sides in the case in June 2010, the district court began to implement the 2006 final order.

To prevent and restrain future RICO violations, the court provided several forms of injunctive relief including enjoining defendants from (1) committing further acts of racketeering relating to the manufacturing, marketing, promotion, health consequences or sale of cigarettes; (2) making further false, misleading or deceptive statements or representations about cigarettes; and (3) conveying  or using any express or implied health message or health descriptor for any cigarette brand including the terms “light” or “low tar.” The court also required defendants to make court-approved corrective statements about the adverse health effects of smoking, the addictiveness of smoking and nicotine, the lack of any significant health benefit from smoking so-called “low tar” cigarettes, defendants’ manipulation of cigarette design to optimize nicotine delivery, and the adverse health effects of tobacco smoke exposure.  The court required additional transparency measures of defendants including that defendants provide the government with access to disaggregated data on the marketing of cigarettes for ten years and continue to make public their internal corporate documents produced in U.S.-based smoking and health litigation for 15 years. Last, the court disbanded several tobacco industry trade or research associations.  

Atkinson v. Taylor, et al. [United States] [January 21, 2003]

The plaintiff, a blind, diabetic prisoner, who had quit smoking after receiving surgery for a pituitary adenoma, claimed that prison officials and the State of Delaware Department of Corrections violated his right to freedom from cruel and unusual punishment, as guaranteed under the United States Constitution, by exposing him to environmental tobacco smoke (ETS). According to the plaintiff, the exposure created serious medical needs and posed an unreasonable risk of harm to his health and safety. He therefore asserted that he was entitled to damages for present and future injuries. Furthermore, the plaintiff claimed that prison officials retaliated against him by using excessive force, including the use of physical violence, for filing the lawsuit. The defendants claimed that they were entitled to qualified immunity for the ETS claims, as well as for the retaliation and excessive force claims. The district court denied the defendants' motion for summary judgment. On appeal, the United States Court of Appeals for the Third Circuit found that a court could decide that the defendants violated the plaintiff's right to freedom from cruel and unusual punishment by exposing him to an unreasonable risk of present and future harm. Insofar as the defendants potentially violated a clearly established fundamental right, they were not entitled to qualified immunity for either the ETS or retaliation claims. The Court of Appeals did not pass judgment on the actual objective or subjective elements of the plaintiff's ETS claims.

Davis v. State of New York, et al. [United States] [December 13, 2002]

The plaintiff, an inmate at a New York State prison, alleged that New York State and officials of the New York State Department of Correctional Services violated his right to freedom from cruel and unusual punishment and his substantive due process rights protected under the U.S. Constitution, by exposing him to high levels of environmental tobacco smoke. According to the plaintiff, the conditions jeopardized his current and future health, and prison officials acted with intentional indifference, and even physically assaulted him, for raising his constitutional complaints.  In addition to several procedural defenses, the prison officials responded that they did not expose the plaintiff to levels of environmental tobacco smoke high enough to cause him serious injury and that the plaintiff could not establish a retaliation claim against them.  A magistrate judge found that the plaintiff could not substantiate important factual allegations and disposed of the complaint.  On appeal, the United States Court of Appeals for the Second Circuit affirmed the magistrate's dismissal of the claims as against the New York State and prison officials in their official capacities. However, the Court returned the case to the magistrate for further examination of the plaintiff's behavior during a specific, critical time period, as well as examination of the retaliation claim on which the magistrate had not passed judgment. 

Alvarado v. Litscher [United States] [September 28, 2001]

A prisoner in Wisconsin brought a case against prison and state officials, claiming his exposure to second-hand smoke while in prison was a violation of his Eighth Amendment right to be protected from cruel and unusual punishment.  The prisoner had severe chronic asthma which was made worse by exposure to smoke.  He alleged that despite being in a non-smoking section of the prison he was still exposed to tobacco smoke because of lack of enforcement of non-smoking rules and because smoking was permitted in common areas.  The defendants sought preliminary dismissal of the case on the ground of qualified immunity.  The trial court denied the dismissal motion and here the appellate court agrees.  The court held the plaintiff had established a deprivation of an actual constitutional right and that right was clearly established at the time of the violation based on the U.S. Supreme Court case of Helling v. McKinney.

Nwanze v. Philip Morris [United States] [June 07, 2000]

A group of 450 pro se prisoners sued tobacco manufacturers and the Director of the Federal Bureau of Prisons for excessive exposure to environmental tobacco smoke ("ETS") while incarcerated.  The Defendants made a F.R.C.P. 12(b)(6) motion for failure to state a claim, which was granted.  While the Court acknowledged that actions against the State for violations of 8th amendment rights based upon ETS exposure were "relatively familiar and well-settled," citing numerous precedents, the Court noted that this case was targeting the manufacturers of tobacco products as opposed to the prison officials or prison policies.  Instead, the Plaintiffs alleged that the tobacco industry conspired with the Director of the Federal Bureau of Prisons "to sell as many cigarettes as possible to the federal prisoner population."  Calling the allegations "too conclusory and insubstantial to be sustainable," the Court dismissed the case.  Furthermore, the Court noted that it had no jurisdiction over the Director of the Federal Bureau of Prisons, and thus dismissed the case against her.  However, the court did note that "Plaintiffs have presented a compelling portrait that federal prisons are permeated with Tobacco Smoke" and noted that Plaintiffs could re-file a new complaint that met their jurisdiction and pleading requirements.

Warren v. Keane [United States] [November 16, 1999]

The plaintiffs, New York state prison inmates, brought an action against officials of the New York State Department of Correctional Services, claiming that their exposure to environmental tobacco smoke (ETS) caused them long-term health risks in violation of the their freedom from cruel and unusual punishment under the Constitution and that defendants failed to enforce the smoking prohibitions already in place in the facility and to promulgate further tobacco control measures. The defendants claimed immunity from the suit. The Court found that the defendants should have known that exposure to high levels of ETS represented an unreasonable risk to the plaintiffs' health. Finally, the Court found that the defendants' qualified immunity did not apply and affirmed the district court's order denying their motion to dismiss.

Henderson v. Sheahan, et al. [United States] [November 16, 1999]

The plaintiff, a pre-trial detainee, brought action against the sheriff of the jail and the former executive director of the county's department of corrections for personal injury and violation of due process.  The plaintiff claimed that he was exposed to cigarette smoke while detained in jail which caused him various health problems. The Court found that the plaintiff's allegations of present injuries, including breathing problems, chest pains, dizziness, sinus problems, headaches, and loss of energy, allegedly due to his exposure to second-hand smoke, were not sufficiently serious to support his claim of due process violation, absent the allegation that a physician diagnosed him as having medical condition that necessitated smoke-free environment, treated him for any condition or ailment brought about by exposure to second-hand smoke, or recommended or ordered that he be placed in a non-smoking environment.

Nwanze v. Philip Morris [United States] [May 10, 1999]

Plaintiffs, non-smoking inmates located at a correctional insitution in Pennsylvania, filed suit against several major tobacco companies stemming from their involuntary exposure to environmental tobacco smoke ("ETS") while incarcerated, under the theory that the ETS was cause by products marketed and manufactured by Defendants.  In this order, the Court responded to several procedural motions without addressing any factual allegations or any of the merits of the suit.  The Court noted that the Plaintiffs, all pro-se litigants, failed to make essential assertions regarding venue and also noted that it is forbidden for the Court to certify a class of pro-se litigants, the Court dismissed the case as moot and denied class certification without prejudice.

However, the Court also noted that ETS litigation requires many fact-specific determinations, and thus granted the Plaintiff's Motion to File a Second Amended Complaint, and "[held] in abeyance the Plaintiff's Motion to Appoint Council pending the resolution of the venue question," suggesting that it seemed likely that the proper venue would be in the Pennsylvania district where the facility was located

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