Month: February 2014

Los Angeles is poised to join Boston,
New York, and Chicago in treating vaping like smoking, meaning that
electronic cigarettes will be banned everywhere that conventional
cigarettes are. Yesterday a committee
approved an ordinance that would extend the city’s restrictions
on smoking to vaping, and the full city council is expected to
follow suit next week. As in
New York and
Chicago, supporters of the ban, unable to cite any evidence
that vaping poses a biological threat to bystanders, focus instead
on the semiotic threat:

Lawmakers acted after Jonathan Fielding, director of the Los
Angeles County Department of Public Health, said e-cigarettes
threaten to make smoking socially acceptable after years of
advocacy to discourage the habit. Young people who get hooked on
the nicotine in e-cigarettes may then turn to tobacco use, he
said.

“We don’t want to risk e-cigarettes undermining a half century
of successful tobacco control,” he said….

“Even if it were determined later on that the emissions from
e-cigarettes aren’t dangerous to a bystander in an outside
environment, the existence of devices like this…in public places
does threaten to renormalize the behavior of smoking,” [City
Attorney Mike Feuer] said.

Fielding and Feuer worry that vaping, the whole point of which
is to avoid the nuisance and hazards of dirty, disgusting,
dangerous cigarettes. somehow will make smoking popular again.
Although there is
no evidence to support that rather implausible fear, there is
evidence that vaping helps many smokers give up a habit that
otherwise would impair their health and threaten their lives, as
former Surgeon General Richard Carmona
pointed out in the Los Angeles Daily News last
week:

Published research suggests that e-cigarettes can play a
significant role in tobacco harm reduction strategies, since they
avoid the toxic byproducts of combustion while providing smokers
with the nicotine they crave and the smoking rituals to which they
have grown accustomed. Financial analysts opine that, within a
decade, e-cigarette sales could overtake tobacco sales.

I recently joined the board of NJOY, the leading independent
e-cigarette company, because its ambitions are even higher—to make
obsolete the tobacco cigarette entirely.

A well-intentioned but scientifically unsupported effort like
the current proposal could greatly impede the effort to defeat
tobacco smoking. This regulation, if passed, would disincentivize
smokers from switching to e-cigarettes, since many initially switch
for reasons of convenience. It would also send the unintended
message to smokers that e-cigarettes are as dangerous as tobacco
smoking, with the result that many will simply continue to smoke
their current toxic products.

Fielding
acknowledges that “some say [e-cigarettes] help them quit
smoking” but insists “the strength of scientific evidence to get
smokers to quit is not there.” Former smokers may think they’ve
switched to vaping, in other words, but but what do they know? They
probably have not even heard of the
precautionary principle.

The Fourth Amendment generally requires the police to obtain a
warrant before searching a home, though that requirement may be
avoided if the homeowner consents to the search. But happens when
two (or more) people reside in the same home, and only one of them
consents to the search while the other refuses? Do the police have
sufficient consent to conduct a warrentless search in that
instance?

The Supreme Court addressed this question in the 2006 case of
Georgia
v. Randolph and came down against the police. At issue was
a domestic violence investigation where the male suspect refused to
let the police search his home while his wife welcomed the search.
The police went in. Yet according to the Supreme Court, the man’s
refusal should have stopped the cops in their tracks. “A physically
present inhabitant’s express refusal of consent to a police search
[of his home] is dispositive as to him, regardless of the consent
of a fellow occupant,” the Court ruled.

Today, the Supreme Court returned to this subject with a new
ruling in favor of law enforcement. At issue in
Fernandez v. California was a 2009 search by the Los
Angeles Police Department of the home of a robbery suspect. When
the officers first arrived, suspect Walter Fernandez denied them
entry, but because his girlfriend Roxanne Rojas exhibited signs of
recent injury, Fernandez was arrested on separate charges of
domestic violence. While Fernandez was being booked, one of the
officers returned to the apartment and gained Rojas’ permission to
conduct a search, which soon turned up evidence linking Fernandez
to the robbery.

Writing for a 6-3 majority, Justice Samuel Alito upheld the
LAPD’s actions. “A warrantless consent search is reasonable and
thus consistent with the Fourth Amendment irrespective of the
availability of a warrant,” Alito wrote. Moreover, he added,
“Denying someone in Rojas’ position the right to allow the police
to enter her home would also show disrespect for her
independence.”

Writing in dissent, Justice Ruth Bader Ginsburg, joined by
Justices Sonia Sotomayor and Elena Kagan, accused the majority of
weakening the Fourth Amendment and granting the police too much
latitude. “Instead of adhering to the warrant requirement,”
Ginsburg wrote, “today’s decision tells the police they may dodge
it, nevermind ample time to secure the approval of a neutral
magistrate.” This ruling, she charged, “shrinks to petite size our
holding in Georgia v. Randolph.”