Is Smoking an E-Cigarette in Public Cause for Arrest? You Be the Judge.

In most states, e-cigarettes aren't subject to the same no-smoking laws as cigarettes. Should they be?

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On June 8, 2015, Shawn Randall Thomas was standing on a subway platform at the Flatbush Avenue and Fulton Street station in Brooklyn. While waiting for his train to arrive in a nonsmoking area, he was vaping—smoking an electronic cigarette, or e-cigarette, which neither burns nor contains tobacco. (Many e-cigarettes contain nicotine, do you know how much nicotine is in a cigarette?) Thomas was approached by a plainclothes officer from the New York City Police Department, who displayed a gold police shield hanging from his neck and said to Thomas, “Police. Are you smoking? Let me see your ID, please.”

Thomas, then 49, said, “I’m not giving you any ID.” A second officer, also in plainclothes, joined them, and the confrontation quickly escalated. The officers repeatedly requested ID from Thomas, and he refused, cursing and demanding that the first officer produce his ID.

Although the plainclothes officer gave Thomas his name—Sergeant Eill—Thomas was not assuaged and continued to demand to see that officer’s official ID.

Finally, Thomas was cuffed and arrested by the officers. He was arraigned the following day on a complaint filed by the Kings County district attorney charging him with violating smoking restrictions under the New York State Public Health Law, obstructing governmental administration, and two counts of disorderly conduct.

Thomas represented himself, and on October 30, he filed a motion to dismiss, claiming that the facts presented by the DA as evidence did not reasonably prove that he had committed the offenses with which he had been charged.

Was Thomas wrongfully arrested by the NYPD when he was vaping in a nonsmoking area on a subway platform? You be the judge.

The Verdict
In December 2013, New York City amended its Smoke-Free Air Act to encompass e-cigarettes, making it illegal to use them “in public places and places of employment.” However, in Thomas’s arrest, the police cited him under state law, which does not include e-cigarettes in its smoking ban; it defines smoking as “the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.”

As a result, on February 5, 2016, Judge Laura R. Johnson granted Thomas’s motion to dismiss on the charge of violating state smoking restrictions, as well as the charge of disorderly conduct for violating the New York City Transit Authority’s rules that prohibit smoking in a subway station. She then explained that Thomas did not obstruct justice, because “ignoring a police officer’s request for identification is not a crime.” In addition, his use of obscene language with the officers did not constitute disorderly conduct, since “it is not illegal to yell or curse at a police officer.”

In the absence of federal laws banning vaping, 507 municipalities in America have enacted their own rules, which may conflict with state law, as in this case.

Currently, nine states prohibit vaping everywhere smoking is banned, with some citing the facts that the liquids vaporized by the devices are not regulated by the Food and Drug Administration and that their long-term health consequences are unknown.

One in ten Americans has reported using e-cigarettes at least once, and vaping among teenagers jumped from 1.5 percent in 2011 to 16 percent in 2015, prompting the FDA to step in. In May, the FDA expanded its federal regulation of tobacco products to include e-cigarettes, banning sales to people under 18 and requiring adults to show ID to purchase them.

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Originally Published in Reader's Digest