Private Enforcement:

Creating a Private Cause of Action for Those Exposed to

Illegal Secondhand Smoke

Kendra Anne Nielsam[1] & Michael D. Gilbert[2]

March 31, 2005

Abstract

Although many states and localities have enacted laws to prohibit smoking in certain public places, many of these laws are not enforced. The lack of enforcement is sensible insofar as enforcement agencies have limited resources, and their time is better spent addressing crimes that present a more immediate danger. But this strategy is not without costs: those exposed to secondhand smoke are left without a remedy, and—because it will often be ignored—the legitimacy of the law suffers.

We propose to create a private cause of action for those exposed to illegal secondhand smoke. Private citizens who observe illegal smoking could effectively issue a fine—they could sue the perpetrator and recover monetary damages. This method of enforcement would allow agencies to pursue more serious crimes while permitting individuals who feel strongly about secondhand smoke bans to use their own resources to enforce them. Governments could include the right of private enforcement in their laws against secondhand smoke.

Implementing a private cause of action would raise a number of issues, including the scope of the right. The action should only apply when an individual is exposed to secondhand smoke in an area where smoking is illegal. For instance, the municipal code of Berkeley, California, prohibits smoking within twenty feet of a bus stop.[3] Our private cause of action would allow a person waiting at a bus stop to enforce the law against anyone smoking within twenty feet of her. It would not allow her to enforce the law against smokers who she passed on her way to the bus stop. This limitation would ensure that lawmaking authority remains in the hands of representative government. Private citizens could enforce the law but not expand it.

The private cause of action would be more effective if citizens—especially those who are largely indifferent to secondhand smoke—had an incentive to use it. To that end, the monetary damages that enforcers could recover should be substantial but not unfairly so. Private enforcers could choose between recovering actual damages or a fixed amount—we propose $300. Actual damages would be difficult to prove and presumably would not be used often, but they should be available to citizens who can establish genuine harm in excess of $300 from an exposure to secondhand smoke.[4] A fixed damages amount would be useful because it would spare courts from having to calculate damages and would establish concrete expectations for smokers and citizens more generally.

Citizens could also be motivated to use the private cause of action by allowing them to sell their claim. A busy citizen who catches someone smoking illegally may not have time to bring the case herself, but enforcement could still be achieved if she could sell her right to sue to a third party.

On the subject of courts, governments could mandate that these private actions be litigated in small claims court. Since smoking bans are (or should be) strict liability offenses, proving mens rea would not be an issue, and, as discussed, courts generally would not have to calculate damages. Thus, lawsuits stemming from the private cause of action would be relatively simple to litigate.

By using a small claims court and, in most cases, sparing plaintiffs from proving actual damages, the parties would not usually have to employ lawyers. If, however, the parties did hire lawyers, and if attorney fees would outweigh damage awards and eliminate the incentive to sue in the first place, courts should adopt a fee-shifting rule. The loser in the litigation would have to pay the victorious party's attorney fees. This would encourage private citizens to use the right. It would also encourage smokers to fight an allegation if the accuser lacked proof and was trying to force a settlement.

Regarding settlements, violations of no-smoking laws would be relatively easy to prove, and accessing small claims court would be easy. These factors coupled with a fixed damages award should encourage settlements. Rational, guilty defendants would be willing to settle with a private citizen for up to $300, and citizens who value their time would often accept. Settlements would permit enforcement of the law without any burden on the government.

Over time, our proposal could eliminate illegal secondhand smoke without any legal action or social tension. The private cause of action would make it more common and less awkward to complain about secondhand smoke. In a self-reinforcing way, more citizens would then feel comfortable voicing their disdain for secondhand smoke because the social stigma from doing so would be less severe. Eventually, social pressure could enforce smoking bans without any need for the law.

Introduction

Secondhand smoke has long been recognized as a health hazard, and many states and localities have enacted laws to prohibit smoking in certain public places in order to mitigate the risk. However, many of these laws are under-enforced or not enforced at all. While the lack of enforcement is reasonable insofar as enforcement agencies have limited resources, and their time is better spent addressing more serious crimes. But this strategy is not without costs. Those exposed to secondhand smoke are left without a remedy, and, because the smoking violations will often be ignored, the legitimacy of the law suffers. 

We propose to create a private cause of action for those exposed to secondhand smoke. Private enforcement would allow agencies to pursue more pressing crimes while individuals who feel strongly about secondhand smoke bans could use their own resources to enforce them.  Governments could include the right of private enforcement in their laws restricting secondhand smoke.

Our proposal would allow for a simple cause of action based on strict liability. Private enforcers could either take individuals who smoke illegally to small claims court or settle the cases on their own. The private enforcers would be able to recover either actual damages, upon proof, or a predetermined statutory award—we suggest three hundred dollars—with no proof of harm required. Economically rational actors would likely settle since the facts of the cases would be easily determined and the statutory damages amount would make it easy for parties to assess whether litigation would be worthwhile.

This paper is organized into three Parts. Part I provides background information on the public health problems associated with secondhand smoke. It explains that there is no right to smoke and describes the types of secondhand smoke restrictions that some states and localities have enacted. Part II addresses the problem of under-enforcement of tobacco control laws. It provides evidence of under-enforcement and provides some possible explanations for it. We frequently use California as an example in both Parts I and II, as California is on the cutting edge of non-smokers’ rights legislation. There is no reason to suppose that the observations and principles from the California experience will not apply elsewhere as other jurisdictions enact similar laws.

Part III describes our proposed private cause of action. It explains the usefulness of the private enforcement provision, the scope of the private enforcement right, and the incentives to use it. This Part also explains the different types of damages private enforcers could seek and the methods they could use to pursue a claim—including settling, litigating, or even selling a claim. Furthermore, this Part addresses some practical issues, such as how one might go about privately enforcing a no-smoking law against a stubborn smoker. Finally, this Part examines the potential for private enforcement provisions to change social norms. In the long run, our proposal could largely eliminate illegal secondhand smoke and decrease the consumption of cigarettes without further legislation or litigation.

I. The Problem of Secondhand Smoke

A. Cold Facts

The health problems associated with secondhand smoke have been well-documented by a raft of researchers. We will not retrace most of their steps here, but we will provide a brief sketch of their recent results. The 11th Report on Carcinogens reconfirms the earlier findings by the Department of Health and Human Services that environmental tobacco smoke is known to be a human carcinogen.[5] Non-smokers who are exposed to secondhand smoke in occupational or home settings have an increased risk of lung cancer as compared with non-smokers who have very little exposure to environmental smoke.[6] Secondhand smoke causes over thirty-eight thousand deaths of non-smokers in the United States each year.[7] Of those, the American Lung Association attributes over three thousand deaths to lung cancer and over thirty-five thousand deaths to heart disease.[8] The risks for children are even higher, and exposure to secondhand smoke has begun to be taken into consideration in custody battles.[9]

Secondhand smoke is dangerous. It raises the risk of lung cancer and heart disease, and leads to thousands of deaths each year. In light of these sober facts, government at all levels has begun to address the risk, at least symbolically.

B. Government Attempts to Eliminate Secondhand Smoke

As a preliminary matter, the government does have the right to restrict smoking. Courts have held that smoking is not a fundamental right.[10] Furthermore, since smokers are not a protected group of people, laws limiting smoking must only have a rational relationship to a legitimate government purpose.[11] This is a low legal threshold for the government to satisfy. Laws that restrict secondhand smoke have been upheld as a “valid exercise of the state’s police power.”[12] In short, there is no constitutional right to smoke,[13] and smoking bans are legal and legitimate.

On the federal level, Executive Order 13058 established smoke-free environments for federal employees by prohibiting smoking inside “in all interior space owned, rented, or leased by the executive branch of the Federal Government, and in any outdoor areas under executive branch control in front of air intake ducts.”[14] The Clinton Administration took other steps to limit environmental smoke, but under the current Bush Administration, the Occupational Safety and Health Administration (OSHA) withdrew a proposal that, among other things, would have restricted indoor smoking.[15]

There is no federal rule or statute that preempts local control of secondhand smoke, and many states and localities have taken advantage of this legal freedom. According to the American Nonsmokers’ Rights Foundation, at least nineteen hundred municipalities in the United States have ordinances restricting smoking.[16] Thirty states have laws requiring one hundred percent smoke free workplaces.[17]

Currently in California, smoking is not allowed in any workplace, including bars and restaurants. In some cities, there are no-smoking laws in effect outdoors as well, such as near bus stops, near the entryways of public buildings, and on beaches.[18]

As illustrated, most government action with respect to secondhand smoke has been taken at the state and local level. States such as California have taken a relatively aggressive stance, banning smoking not just in government buildings but in all workplaces, including bars. In principle, such laws offer protection to non-smokers. In practice, they are only effective if they are enforced.

II. Lack of Public Enforcement

Each locality has its own approach to enforcing secondhand smoke laws, and as a result, people have encountered different levels of compliance in different cities, even for statewide bans. Sometimes lack of compliance is due to ignorance of the law, but sometimes it is because there is no enforcement and thus no deterrent. Indeed, while some municipalities take no-smoking laws seriously, many such laws are not enforced. Many secondhand smoke violations are considered only nuisances with a low prioritization for enforcement, meaning that compliance must be voluntary.[19] In such circumstances, compliance rates are low, undermining the effectiveness and legitimacy of the laws.

When no-smoking laws are not enforced, non-smokers sense the absence of legal protection and perceive indifference from the government. In the words of one non-smoker, “Are we to be banned from going to these places because we dislike the smell of smoke and don't wish to subject our lungs to those pollutants? What are we to do when the law no longer protects us?”[20]

A. Evidence of Non-Enforcement and Non-Compliance

California’s experience provides insights into enforcement of and compliance with no-smoking laws. A Los Angeles Times article reported survey results finding that two years after California first banned smoking in bars, approximately forty percent of free-standing bars were not complying with the ban.[21] The study found that bars in Orange County were at eighty percent compliance.[22] This was attributed to earlier and more aggressive enforcement in Orange County than other areas.[23]

The same Los Angeles Times study explained that more compliant bars were in areas where law enforcement had a more strict approach as opposed to an educational approach. Los Angeles city officials delegated enforcement to fire officials rather than law enforcement and “favored a softer, educational approach rather than issuing fines.”[24] San Diego, on the other hand, had undercover police officers make sweeps of bars and issue fines. Another city discovered that forming special enforcement units early resulted in ninety-six percent fewer citations per month a year later.[25] It seems that six years since the statewide ban was enacted, many bars and restaurants comply with the indoor smoking bans. Once the laws were enforced, compliance eventually followed.

While California’s indoor smoking bans may be effective, restrictions on smoking in public outdoor areas still lack compliance. A report evaluating findings in Marin County, California, found that secondhand smoke remained a problem near playgrounds even after laws restricting smoking within twenty-five feet of playgrounds were enacted.[26] A survey of residents using playgrounds revealed that few people knew about the smoking restrictions, although most supported them.[27] The report viewed lack of knowledge as the major obstacle to compliance; it did not address whether local police officers would actually enforce the law once signs were posted.[28]

Notwithstanding the material we just reviewed, hard evidence of compliance with and enforcement of no-smoking laws is difficult to find. However, anecdotal evidence is widespread. We personally observe an average of four violations a day in socially conscious Berkeley, California.[29] In commentary, secondhand smoke laws have been compared to littering statutes—they receive a low priority and are hard to enforce.[30] They are not enforced very often, and when they are, warnings rather than citations are given.[31] In support of this assertion, one Berkeley police officer explained to us that when he encounters violations, he asks the person to stop smoking and only issues a citation if the smoker refuses to comply.

To summarize, formal and anecdotal evidence reveals that compliance with smoke bans, especially outdoor smoke bans, is spotty, and enforcement efforts can be lax. Relatively stringent enforcement has a positive impact on compliance, and thus smoke bans would be more effective if they were enforced more strictly. All of our evidence is from California, but there is no reason to suppose that the experience in other locales differs significantly. If anything, enforcement and compliance may be worse in other areas, since California is on the vanguard of non-smoker protection.

B. Reasons for Non-Enforcement

Having argued that no-smoking laws are often under-enforced, we will now provide some explanations for why this is so. There are a number of possible reasons,[32] the first of which relates to politics. The political will to vigorously enforce no-smoking laws is often absent. Second, there are more imminently dangerous crimes for enforcement agencies to deal with. No-smoking offenses are generally viewed as minor infractions deserving only low priority. Third, and on a related note, law enforcement departments have limited resources. Both funding and staffing shortages lead them to under-enforce tobacco control laws. Finally, we provide some theoretical explanations for why enforcement of outdoor smoking bans is especially difficult.

1. Absence of Political Will

Passing a no-smoking law is not the same as lending it full support. Politicians may please a significant block of constituents—non-smokers—by passing no-smoking laws, and please a second block—smokers, and the corporate interests that supply them—by ensuring that those laws go unenforced. In this way, they achieve the symbolic effect of tackling a public health problem without burning any political bridges. This is a cynical view of politicians and their motivations, but it may be realistic. At the federal level, OSHA’s decision to abandon its indoor air quality rule may have been motivated in part by political concerns and the influence of pro-tobacco interest groups.[33] More locally, the lack of political will is evidenced by the fact that many no-smoking laws do not prescribe enforcement mechanisms or penalty structures.

2. Low Prioritization

It is difficult to argue that police officers should patrol for secondhand smoke violations while other more serious crimes are being committed. Many municipalities have embraced this view and made enforcement of smoking bans a low priority. When the City of Newport Beach was determining whether to approve a no-smoking ordinance for public beaches, it specifically noted that “police calls for service and enforcement responsibilities directly impacting public safety will always have a priority over non-emergency enforcement activities such as the enforcement of a no smoking ordinance.”[34] Police would only enforce the law as part of their regular patrol; they would not be specially dispatched for that purpose.[35] Similarly, the Fresno City Council voted to ban smoking in city parks by a vote of six to one even though violations carried no penalties and the law would not be enforced.[36]

While the logic behind low prioritization seems sound, it is not unassailable. Most municipalities have employees who, for example, monitor parking meters and other parking laws, when violations of such laws are surely less of a societal problem than secondhand smoke. Parking violations may inconvenience drivers, but smoking violations can cause serious physical harm. Given that parking enforcement is a specific occupation, dedicating an arm of the local police force to the enforcement of smoking laws may not be unreasonable.[37]

3. Limited Resources

Public enforcement is expensive, so even if municipalities wanted to make no-smoking laws a higher priority, they may not have the resources to do so. Indeed, resource constraints almost certainly help explain the decision to make enforcement a low priority in the first place.

Cities have invented clever methods for working around resource constraints. For example, when California first banned smoking in bars, the city of Los Angeles delegated enforcement responsibility to an eight-person fire department team that also did building inspections for fire code violations.[38] Monitoring compliance with the smoking ban became an additional component of the team’s inspections. This approach was inexpensive. But it was impossible for the team, which worked regular business hours, to enforce the laws in bars all over the city when most of the violations occurred at night.

Some cities have established mechanisms for citizens to report violations of secondhand smoke laws, including toll-free phone numbers[39] and websites.[40] For example, both Tempe, Arizona, and Berkeley, California include smoking violations among a number of other infractions that people can report online.[41] When the City of Berkeley receives these reports, it often forwards them to the Division of Environmental Health.[42] The Division of Environmental Heath will either send an inspector to the area where the violation allegedly occurred, or the Tobacco Control Division will write a letter to the appropriate person or entity requesting compliance. Citizen reporting is inexpensive. But as indicated by Berkeley’s slow and toothless response to reports of smoking violations, it is also an ineffective method of enforcement.

Public enforcement of law is always costly. Municipalities have devised different ways to achieve compliance at low cost, but in general, when few resources are devoted to enforcement efforts, those efforts come up short.

4. The Trouble with Outdoor Smoking Bans

As discussed, anecdotal evidence and intuition suggest that bans on smoking in public outdoor places are especially difficult to enforce. One reason for this may be that public areas are neither easily substitutable nor profit oriented. If they allow non-compliance with indoor smoking bans, restaurant and bar owners may see a drop in their patronage. Many non-smoker customers will simply go elsewhere, and owners may respond by enforcing no-smoking laws themselves. In contrast, most people will not avoid parks or stop taking the bus if they find someone smoking in these places. There are fewer substitutes for these public areas, and there is no profit-maximizing manager on hand with an incentive to enforce the law.

Additionally, most smoking bans for indoor areas are quite explicit, and non-compliance is easy to determine. In contrast, outdoor smoking bans are usually described in terms of distance from a certain location. For instance, a ban might prohibit smoking within twenty feet of any university building.[43] Most outdoor smoke-free areas do not have the relevant distance marked in any way, so compliance is hard to determine. Unless one carries a measuring tape, the line between compliance and non-compliance is hazy.

III. The Private Cause of Action as a Solution to Under-Enforcement

Secondhand smoke presents a health hazard, and many states and localities have responded by banning smoking in both indoor and outdoor areas. For a variety of reasons, these laws are not vigorously enforced, leaving non-smokers without a remedy. To resolve this dilemma, states and localities should include a private cause of action provision in their laws restricting smoking. Allowing private individuals to enforce secondhand smoke laws would be an efficient and effective way to improve compliance. Before describing our proposal in depth, we will address some preliminary concerns.

Arguably, private citizens should not have to enforce tobacco control laws. Citizens pay taxes in part so that public officials will enforce the law, not vigilantes. Under a utopian theory of government, this proposition is sound. Unfortunately, in the real world, it does not hold. For a variety of reasons, it is infeasible for law enforcement to pursue smokers for committing seemingly minor infractions that do not cause imminent harm. Private enforcement can pick up the slack. Even in areas where secondhand smoke laws are publicly enforced, private enforcement would complement the efforts of local enforcement agencies.

As we have recently learned, private enforcement is not an entirely novel concept in the context of tobacco control. The Technical Assistance Legal Center (TALC), which is the tobacco control section of California’s Public Health Institute, has created a model ordinance for tobacco control that incorporates a private enforcement provision.[44] TALC encourages the use of this provision in combination with any tobacco control law.[45] Last summer, the City of El Cajon, California, voted to include this private enforcement provision in its tobacco licensing code. El Cajon’s version allows private enforcement of tobacco retailer licensing violations.[46] The provision allows a private enforcer to “act[] for the interest of itself, its members, or the general public”[47] in enforcing this law. TALC’s model provision and the one adopted by El Cajon differ from our proposal.[48]

Finally, “informal” private enforcement is not enough. In our experience, when people privately assert their rights to a smoke-free environment by informing smokers that they are in violation of a law, smokers rarely cease smoking in the area.[49] Citizens need the force of law behind them to make private enforcement effective.

A. Anatomy of the Private Cause of Action

Our proposed private cause of action would effectively allow citizens to issue a fine against individuals who violate no-smoking laws—private citizens could sue smokers under a strict liability standard and recover monetary damages. The logic behind the cause of action is simple. Undercover officers were useful in enforcing California’s smoke-free bar laws because patrons became paranoid about getting cited.[50] Similarly, giving private individuals the ability to enforce secondhand smoke laws would create a strong deterrent, because smokers would never know who might enforce the law against them, and they would not want to pay a monetary award. This system could significantly improve compliance without requiring public enforcement agencies to expend their scarce resource on what they view as low priority laws. In this section, we will present the details of our proposal, beginning with a discussion of the scope of the right. We will also explain the incentives to use the right and methods for enforcing it. We will also cover the short-term drawbacks of the proposal and its possible long-term benefits.

1. Scope of the Right

The private action would only be available to individuals who are exposed to secondhand smoke in an area where smoking is illegal. This limitation would ensure that lawmaking authority remained in the hands of representative government.  Private citizens could enforce secondhand smoke laws but not expand them. To illustrate, the municipal code of Berkeley, California, prohibits smoking within twenty feet of a bus stop.[51] Our private cause of action would allow a person waiting at a bus stop to enforce the law against anyone smoking within twenty feet of her. It would not allow her to enforce the law against smokers whom she passed on her way to the bus stop.

Anyone who witnessed a violation of no-smoking laws would be able to use the private cause of action. One might argue that only someone who is directly harmed by illegal secondhand smoke—for example, someone waiting at a bus stop—should be able to take action. We disagree. Under our approach, whether the private enforcer was actually harmed (through the inhalation of secondhand smoke) would only be relevant if that person wanted to recover actual damages, which we will discuss in greater depth below. Permitting anyone to use the private cause of action would raise the deterrent effect and improve compliance.

In addition to smokers themselves, our proposal would allow a person to sue anyone who aided, abetted, or induced smoking violations. For instance, in California, it is illegal to smoke in restaurants and bars.[52] If a bar owner allowed patrons to smoke indoors, another patron could sue those smokers as well as the bar owner for aiding in the violations. We recognize that allowing enforcement of this kind would raise the prospect of collusion. For example, two people could enter a restaurant, one of them could light a cigarette, and then the second person could quickly assert his enforcement right against both the first patron and the restaurant owner. The second patron would only pursue his claim against the owner, and he would split any damages he recovered with his co-conspirator.

In light of this risk, it may be reasonable to restrict private enforcement to actual smokers, especially since many restaurants and bars would already be liable for smoking violations under other laws.[53] We think, however, that allowing the private cause of action to be used against anyone involved in a smoking violation would create the strongest possible deterrent. To mitigate the risk of collusion, owners could escape liability by showing that the smoker and private enforcer acted in concert. Moreover, the strict liability measure for owners could be relaxed to something akin to the California Labor Code, which only holds employers liable for knowing or intentionally permitting smoking at a workplace.[54] Owners could then avoid or reduce their liability by posting “No Smoking” signs and by “request[ing], when appropriate, that a nonemployee who is smoking refrain from smoking in the enclosed workplace.”[55] Of course, individual localities could tailor the liability standards for aiding and abetting as they see fit.

2. Incentives to Use the Private Cause of Action: Monetary Damages

The private cause of action would be more effective if citizens had an incentive to use it. To that end, our proposed enforcement right would allow citizens to recover monetary damages from those who violate no-smoking laws. Damage awards would help citizens overcome the social discomfort associated with confronting an individual over his smoking behavior. Indeed, the monetary incentive would be especially attractive to citizens who are largely indifferent to secondhand smoke but who often encounter it. The incentive could even make smokers less antagonistic towards private enforcers. With an objective monetary reward at stake, violators should be less surprised when someone enforces the law against them.

Under our proposal, private enforcers could choose between recovering actual damages or a fixed amount, such as three hundred dollars. We will discuss each of these awards in turn.

a. Actual Damages

Private enforcers would be entitled to recover actual damages from an illegal exposure to secondhand smoke. Actual damages would be difficult to prove, and presumably they would not be used often. But they should be explicitly available to citizens who can establish genuine harm in excess of the fixed award. 

Actual damages may be appropriate when, for example, a server who works in a restaurant that allows illegal smoking suffers from health problems. As demonstrated by many studies, servers in restaurants that permit smoking are highly susceptible to lung cancer.[56] If after smoking was banned by a locality, a restaurant owner still allowed smoking, a server could use the private enforcement provision to recover actual damages for her health. Since individual patrons of the restaurant probably would not cause more than three hundred dollars in damage, the server would presumably bring her action against the restaurant owner.

One problem could arise in this circumstance.[57] The server could essentially recover double damages by collecting actual damages from the restaurant owner and the fixed award from individual patrons. One possibility would be to forbid employees from enforcing the right in their workplace against anyone other than their employer. Another possibility would be to hold employers and patrons jointly and severally liable for the total amount of actual damages. Yet another possibility would be to implement a very short statute of limitations for claims by an employee against a patron. The employment context is complicated, and efforts by employees to enforce the right in their workplaces may require case-by-case determinations.

b. Fixed Damages

In lieu of actual damages, private enforcers could elect to recover an amount fixed by law. We recommend three hundred dollars, perhaps with increasing penalties for repeat offenders. The award could be set at any level so long as it provided an effective deterrent to smoking violations without violating legal standards of fairness and due process.

A fixed damages amount would be useful for a number of reasons. It would spare litigants from having to prove actual damages from exposure to secondhand smoke. This would significantly lower the costs of using the private action for litigants and courts alike. It would also set litigants’ expectations. Private enforcers would know the exact value of a case. They could use the fixed amount as a baseline to determine whether a given violation is worth pursuing. Likewise, smokers would know the precise cost associated with violating a no-smoking law. Based on that figure, they could determine whether informing themselves about local smoking laws is worthwhile, and whether the risk associated with smoking in public is justified.

By accurately setting litigants’ expectations, fixed damages would also facilitate settlements. We will take up this argument in the next section.

3. Enforcement of the Damages Awards

To ensure that private enforcers actually collect their awards, and to ensure that alleged violators of smoking bans have a chance to defend themselves, both parties must have recourse to the courts. We recommend that statutes implementing the private cause of action explicitly assign adjudication to small claims courts. We also support a fee shifting rule to prevent attorney fees from undermining the incentives to use the private right. These measures, combined with the certainty of the fixed award and the right of citizens to sell their private claims, would facilitate settlements.

a. Small Claims Courts

Small claims court would be the best venue for litigating our proposed private enforcement actions. Small claims courts are more accessible than “regular” courts, they issue decisions more quickly,[58] and they can be navigated without legal representation.  Since smoking bans are—or should be—strict liability offenses, proving mens rea would not be an issue, and fixed awards would save judges from having to calculate damages. In short, litigation of private enforcement actions would be straightforward, and small claims courts could easily handle it.

The fixed award of three hundred dollars would easily fall under the jurisdiction of virtually all small claims courts. In California, for example, small claims courts can adjudicate claims worth up to five thousand dollars.[59] In other states, the threshold varies from approximately fifteen hundred dollars to fifteen thousand dollars.[60] Given these figures, many suits for actual damages could also be litigated by small claims courts.

b. Shifting Attorney Fees

If a private enforcer required the assistance of an attorney, perhaps because she sought actual damages beyond the small claims court’s jurisdiction or because she simply required an attorney to present her claim effectively, we propose the implementation of a fee-shifting rule.[61] The rule would also apply if the alleged violator of a smoking law hired an attorney, or if both parties did so. The loser in the litigation would have to pay the victorious party's attorney fees.

The fee-shifting provision would prevent attorney fees from undermining the monetary incentive to use the private action. For example, a situation could arise in which a citizen sought to enforce a claim against a smoker who was also a lawyer. To level the playing field of expertise, the private enforcer may desire to hire her own lawyer. Doing so would almost certainly cost more than three hundred dollars, eliminating her incentive to bring the action in the first place. With the fee shifting rule, the enforcer would still have an incentive to exercise her enforcement right. She would not have to deduct attorney fees from her statutory award.

Just as a fee shifting arrangement would encourage private enforcers with good claims to use the cause of action, it would encourage smokers from settling in the face of nuisance suits. Citizens would not sue on false claims in hopes of a settlement; the respondent could recover his attorney fees from the private enforcer and would therefore have an incentive to contest an unfounded claim.[62]

In small claims courts in California, losing defendants can appeal.[63] On appeal, the parties are allowed to use lawyers. So even if the private enforcers file suits in small claims courts, disputes may ultimately involve legal professionals. A fee shifting rule would be useful in these circumstances.

c. Settlements and Selling Claims

Violations of no-smoking laws would be relatively easy to prove with, for example, photographs, eyewitnesses, and video images. Accessing small claims court would also be easy.  These factors coupled with a fixed damages award should encourage settlements. Rational, guilty defendants would be willing to settle with a private citizen for up to three hundred dollars; citizens who value their time would often accept a settlement for less than three hundred dollars.  Settlements would permit enforcement of the law without any burden on the government.

Initially, settlements would be less effective than lawsuits at inducing widespread compliance with no-smoking laws. If parties settled outside of a public venue, private enforcement would not be publicized, and it would lose some of its deterrent effect. But prior to well-publicized lawsuits that solidified the private enforcement right, settlements would be rare. Guilty smokers would not pay private enforcers unless the outcome of formal litigation was certain. So by the time settlements became common, much of the deterrent effect of the private cause of action would already be in place.

On the subject of settlements, we advocate that citizens receive explicit authorization to sell their private enforcement claims. If, for example, one citizen witnessed a smoking violation but for some reason could not enforce it, she should be entitled to sell her claim to someone who could. This would facilitate private enforcement. Even busy and shy citizens would have an incentive to take note of smoking violations, since doing so would entitle them to a legal claim which they could then sell.[64] Moreover, the right to sell would facilitate settlement. In the absence of a right to sell, a defendant may, despite his guilt, refuse to settle. He may recognize that the opportunity costs to the private enforcer of pursuing her claim in court are too high. With the right to sell, the defendant would have less of an incentive to hold out. He would recognize that failure to settle would simply lead the enforcer to sell her claim to a third party who has the time and resources to bring a suit.

B. Pitfalls of the Private Cause of Action

Notwithstanding its many benefits, our proposed private cause of action could raise a number of policy problems. One issue might arise with respect to the logistics of private enforcement. Private enforcers may be antagonized or even physically confronted by smokers against whom they make a claim. Public officers enforcing no-smoking laws in San Diego have had angry confrontations with smokers.[65] The detectives reported being “yelled at, insulted, and even likened to World War II dictators, with some patrons actually using the word ‘Nazi.’”[66] If people respond to police officers like this, they may be even aggressive towards private enforcers. Intimidation would decrease private enforcement.

Along the same lines, smokers who are unaware of no-smoking laws[67] or the private enforcement provision, or who pretend to be ignorant in these respects, may not cooperate with private enforcers who are trying to obtain the smoker’s name, address, and other information. Private enforcers may have trouble gathering the information necessary to threaten a suit and force a settlement.

Another problem could relate to public support for private enforcement. Many people may support secondhand smoke bans but oppose private enforcement of them. If a locality enacted a secondhand smoke ban with the private enforcement mechanism included, there could be a public backlash against the law in general, undermining the tobacco control effort. “[I]f citizens perceive an enforcement program as unreasonably aggressive, subsequent public disapproval might endanger the program itself.”[68]

Finally, permitting private enforcement may lead governments to devote even fewer resources to the public enforcement effort. Insofar as public enforcement offers a significant benefit, this outcome is undesirable.

We propose a number of solutions to these problems. First, local law enforcement and media should encourage people to comply with the law and cooperate with private enforcers. Punitive damages could be awarded in the case of smokers who harass private enforcers or refuse to cooperate with them.[69] Smokers who are genuinely ignorant of private enforcement provisions could be excused for failing to disclose their information to an enforcer, but only once. As for public support for private enforcement, that should take care of itself. Politicians almost certainly would not enact a private enforcement provision unless they were reasonably certain that their constituents would support it.[70] If public opinion turned against private enforcement, that provision of the relevant statute should be removed without disturbing smoking bans in general.

One final issue bears mentioning. To preclude overly litigious private enforcement and an environment of social distrust, it has been suggested that the private enforcement clause place a limit on the damages a citizen could recover within a calendar year, such as three thousand dollars. This would prevent individuals from becoming “vigilantes” with their sole income coming from private enforcement of smoking bans.

For several reasons, our proposal does not place a cap on the maximum number of enforcements in a given year. One problem is that an individual may be harmed by secondhand smoke so often that her legitimate damages exceed the cap. For instance, if a person regularly takes the bus, she might encounter fifty people a year who are smoking by her bus stop. A cap would only allow her to recover from a fraction of them.

In addition, capping damages would discourage vigilantism, and we are not convinced this would be sensible policy. Vigilantes would lubricate the market for private enforcement claims; they could serve as clearinghouses for busy citizens who lack the time to pursue claims themselves. Moreover, the social distrust stemming from private enforcement would likely be present even with a damages cap (and thus without vigilantes). Smokers could just as easily be suspicious of the motives of the general public as those of a few vigilantes who make their living enforcing smoking bans.

C. Aspirations of the Private Cause of Action

Having discussed the details of the private cause of action and raised some potential drawbacks to it, we will now reiterate and expand on the fundamental purposes of our proposal.

The obvious purpose of the private cause of action is to increase compliance with no-smoking laws. Secondhand smoke is dangerous and has been banned from many public spaces. Various constraints prevent public agencies from enforcing these bans, and our proposal would allow private citizens to pick up the slack. Greater enforcement would lead to greater compliance, and that would reduce the health risk without preventing public agencies from addressing other significant crimes.

As a byproduct of increasing compliance, our proposal may also decrease tobacco consumption. Smoking bans in general lower the number of people who smoke.[71] In Massachusetts, for instance, a comprehensive tobacco control program was introduced in 1993 which included the promotion of local no-smoking ordinances.[72] After the program’s implementation, the annual decline in consumption of cigarettes in Massachusetts was twelve percent, while the nationwide decline was only four percent.[73] These statistics suggest that smoking bans decrease tobacco consumption. Presumably, the decreases would be sharper if the smoking bans at issue were tenaciously enforced.

Finally, our proposal aspires in the long run to significantly reduce illegal secondhand smoke without resort to the legal system.  The private cause of action would make complaining about secondhand smoke more common and less socially awkward. In a self-reinforcing way, more citizens would then feel comfortable voicing their dislike for secondhand smoke because the social stigma from doing so would be less severe.[74]  Eventually, complaining about illegal secondhand smoke could become the norm. This would place substantial social pressure on smokers to refrain from smoking in prohibited areas. Ultimately, this would lead to high levels of compliance without any need for litigation or the contentiousness that comes with it.

Conclusion

A growing number of states and local governments have enacted laws to protect people from secondhand smoke, but public enforcement of these laws is often lax. As a result, non-smokers are left without any real protection. They continue to be exposed to illegal secondhand smoke and its potentially lethal consequences.

Compliance with smoking bans could be improved if private citizens had the right to enforce them. Under our proposal, citizens could effectively issue fines for violations of smoking laws—they could sue violators and recover monetary damages. Strict liability standards, fixed damage awards, use of small claims courts, and the right to sell claims would facilitate settlements, meaning that no-smoking laws could be enforced without costly and contentious litigation.

A private cause of action could have some deleterious effects, including an increase in social tension and confrontation. However, the long term advantages would ultimately outweigh the costs. Private enforcement could reduce tobacco consumption and make compliance with no-smoking laws the social norm.

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[1] Kendra Anne Nielsam is a third-year law student at the University of California, Berkeley (Boalt Hall). She can be reached at tcs@nielsam.com.

[2] Michael D. Gilbert is also a third-year law student at U.C. Berkeley and a PhD. student as well. He can be reached at mgilbert@berkeley.edu.

[3] See Berkeley Municipal Code § 12.70.030(V) (2005).

[4] Of course, an individual who could establish genuine harm would also be free to sue under general tort principles.

[5] Report on Carcinogens, Eleventh Edition; U.S. Department of Health and Human Services, Public Health Service, National Toxicology Program (Jan. 31, 2005) http://ntp-server.niehs.nih.gov/ntp/roc/eleventh/profiles/s176toba.pdf.

[6] See id. (reporting a 20 percent increase in the risk of getting lung cancer for exposure to environmental smoke caused by a spouse who smokes).

[7] Secondhand Smoke and Your Family, American Lung Association (last visited March 6, 2005), available at http://www.lungusa.org/site/pp.asp?c=dvLUK9O0E&b=39858.

[8] See id.

[9] See, e.g., Michael S. Moorby, Comment, Smoking Parents, Their Children, and the Home: Do the Courts Have the Authority to Clear the Air?, 12 Pace Envt’l L. Rev. 827, 834-838 (1995) (describing multiple cases where smoking by one parent was used by the judge in determining which parent’s household would further the best interests of the child).

[10] E.g., City of North Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla.