                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3880
                         ___________________________

                                   Arthur Gallagher

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

   City of Clayton; Linda Goldstein, Mayor; Craig Owens, City Manager; Patty
            DeForrest, Parks Director; Thomas J. Byrne, Police Chief

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: September 19, 2012
                            Filed: November 8, 2012
                                 ____________

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       Arthur Gallagher sued the City of Clayton, Missouri (City), and several city
officials (defendants) in their official capacities under 42 U.S.C. §§ 1983 and 1988,
challenging a city ordinance prohibiting outdoor smoking on certain public property.
Gallagher alleged the ordinance violated both the United States and Missouri
Constitutions. After the defendants moved for judgment on the pleadings, the district
court1 dismissed Gallagher’s federal claims as facially implausible and declined to
exercise supplemental jurisdiction over his state law claim. Gallagher appeals the
dismissal of his federal claims. We affirm.

I.    BACKGROUND
      Gallagher is a resident of the City who regularly uses the City’s parks and
“ecstatically enjoys smoking tobacco products while doing so.” On August 24, 2010,
the City’s Board of Aldermen (Board) enacted Ordinance 6118 (Ordinance)
prohibiting the “possession of lighted or heated smoking materials in any form . . . in
or on any property or premises owned or leased for use by the City of Clayton,
including buildings, grounds, parks, [and] playgrounds.” The Ordinance established
several exceptions, including allowing outdoor smoking on “streets, alleys, rights of
way and sidewalks other than sidewalks and pedestrian paths in parks,” but gave the
City Manager discretion to prohibit smoking in these areas during “community
events, fairs, festivals, neighborhood events and similar public gatherings.” The
Board cited public health and safety, litter reduction, and aesthetic rationales for
enacting the Ordinance.

         On March 2, 2011, Gallagher sued the defendants under 42 U.S.C. § 1983,
alleging the Ordinance unconstitutionally prevented him from smoking outdoors in
city parks. Gallagher challenged the constitutionality of the Ordinance on five
grounds under the United States Constitution and on one supplemental ground under
the Missouri Constitution. Specifically, Gallagher asserted the Ordinance (1) failed
rational basis review “because the health threat of secondhand smoke from outdoor
tobacco use is de minim[i]s”; (2) failed strict scrutiny review “because smoking is
. . . a fundamental right, and the Ordinance is not narrowly tailored to protect that
right”; (3) failed intermediate scrutiny review because “smokers are a quasi-suspect


      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.

                                         -2-
class due to discrimination and second class categorization”; (4) failed heightened
rational basis review because “the real purpose of the Ordinance is to express animus
toward smokers”; (5) is unconstitutionally vague because it allows the City Manager
unfettered discretion to “ban outdoor smoking at festivals and events”; and
(6) “[d]enies smokers their Missouri Constitution . . . liberty and pursuit of happiness
rights.”

       On June 1, 2011, the defendants moved for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c). The district court granted the defendants’
motion on December 9, 2011, dismissing Gallagher’s federal constitutional claims as
facially implausible and declining to exercise supplemental jurisdiction over his state
law claim. Gallagher appeals the dismissal of his federal claims, contending the
district court erred on six grounds.

II.    DISCUSSION
       We review de novo a district court’s grant of a motion for judgment on the
pleadings, using the same standard as when we review the grant of a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). See Clemons v. Crawford,
585 F.3d 1119, 1124 (8th Cir. 2009). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. While this court
must “accept as true all facts pleaded by the non-moving party and grant all
reasonable inferences from the pleadings in favor of the non-moving party,” United
States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.
2000), “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).

                                           -3-
       A.     Fundamental Right
       Gallagher first contends the district court erred in dismissing his claim that
smoking outdoors constitutes a fundamental right warranting strict scrutiny of the
Ordinance. The doctrine of substantive due process protects unenumerated
fundamental rights and liberties under the Due Process Clause of the Fourteenth
Amendment. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997). A
fundamental right is one which is, “objectively, ‘deeply rooted in this Nation’s history
and tradition,’” id. at 720-21 (quoting Moore v. City of East Cleveland, Ohio, 431
U.S. 494, 503 (1977) (plurality opinion)), “and ‘implicit in the concept of ordered
liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed,’” id.
at 721 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)). Legislation
infringing a fundamental right must survive strict scrutiny—the law must be
“narrowly tailored to serve a compelling state interest.” Id. (quoting Reno v. Flores,
507 U.S. 292, 302 (1993)) (internal quotation marks omitted).

       Gallagher proposes we declare smoking (1) a new fundamental right “because
of tobacco’s ancient traditions in American history” or (2) a part of an established
fundamental right to bodily integrity. He concedes, however, that “no court has
adopted his position.” Turning to Gallagher’s first proposition, we have previously
addressed a legislature’s ability to regulate smoking. In Steele v. County of Beltrami,
Minn., 238 F. App’x 180 (8th Cir. 2007) (unpublished per curiam), we affirmed the
district court’s dismissal of claims brought by plaintiffs alleging a county ordinance
prohibiting smoking in indoor public places and places of work violated their rights
under the Fourth, Fifth, Ninth, and Fourteenth Amendments. See id. at 181-82. We
noted the plaintiffs “fail[ed] to provide any sound legal argument or authorities
supporting their claimed constitutional rights to smoke” and “no relevant authority
support[ed] these rights under any theory.” Id. at 181. We concluded regulation of
smoking was “better left to the people acting through legislative processes” than
creating a “judicial remed[y]” in the United States Constitution. Id. (quoting Gasper

                                           -4-
v. La. Stadium & Exposition Dist., 418 F. Supp. 716, 722 (E.D. La. 1976)) (internal
quotation marks omitted).

       Gallagher attempts to distinguish his case from Steele, contending he has
offered “sound legal arguments” for his proposition, unlike the plaintiffs in that case,
by identifying many examples of smoking’s prevalence throughout American history.
Despite this distinction, we decline Gallagher’s invitation to declare smoking a
fundamental right. “The doctrine of judicial self-restraint requires us to exercise the
utmost care whenever we are asked to break new ground in this field” (substantive
due process), because “guideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended.” Collins v. City of Harker Heights, Tex., 503 U.S.
115, 125 (1992). Even were we to assume the right to smoke outdoors on public
property is “deeply rooted in this Nation’s history and tradition,” Glucksberg, 521
U.S. at 721 (quoting Moore, 431 U.S. at 503) (internal quotation marks omitted), we
do not believe the right is “implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if [it] were sacrificed,” id. (quoting Palko, 302 U.S. at
325, 326) (internal quotation marks omitted). Gallagher has failed adequately to
demonstrate how the Ordinance would so threaten liberty or justice as to trigger strict
scrutiny under the Due Process Clause of the Fourteenth Amendment. “The doctrine
of judicial self-restraint [thus] requires us” to hold that outdoor smoking on public
property does not constitute a fundamental right. Collins, 503 U.S. at 125.

       Nor do we accept Gallagher’s proposition that smoking constitutes part of an
existing fundamental right to bodily integrity. Gallagher suggests smoking in public
is an “intimate part of life” akin to the right to engage in consensual, private sexual
activity, see Lawrence v. Texas, 539 U.S. 558 (2003), and to a woman’s “bodily
integrity right to have an abortion,” see Planned Parenthood of S.E. Penn. v. Casey,
505 U.S. 833 (1992). Lawrence, however, did not expressly recognize a
“fundamental right.” The Supreme Court held the Texas statute at issue “further[ed]
no legitimate state interest which c[ould] justify its intrusion into the personal and

                                           -5-
private life of the individual.” Lawrence, 539 U.S. at 578. While the Supreme Court
has recognized a fundamental right to “bodily integrity” and to engage in certain other
“personal activities and decisions,” Glucksberg, 521 U.S. at 720, 727, not “all
important, intimate, and personal decisions are so protected,” id. at 727. The alleged
right to smoke in public is not so deeply rooted in the Nation’s history and tradition,
and it is not implicit in the concept of ordered liberty. As such, it does not fall within
the “liberty” that is specially protected by the Due Process Clause. The district court
did not err in dismissing this claim.

       B.     Suspect Classification
       Gallagher alternatively seeks intermediate scrutiny of the Ordinance on equal
protection grounds, maintaining that smokers are a suspect or quasi-suspect class due
“to discrimination, animus, stigma and second class characterization.” Under the
Fourteenth Amendment’s Equal Protection Clause, a law that treats a suspect
classification of people differently than similarly situated individuals is subject to
heightened scrutiny. See Gilmore v. Cnty of Douglas, Neb., 406 F.3d 935, 937 (8th
Cir. 2005). A class may be found suspect if the class shares “an immutable
characteristic determined solely by the accident of birth,” Frontiero v. Richardson,
411 U.S. 677, 686 (1973), or is “saddled with such disabilities, or subjected to such
a history of purposeful unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian political
process,” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). Courts
considering claims that smokers constitute a suspect or quasi-suspect class have
rejected them, noting “that smokers as a class lack the[se] typical characteristics that
traditionally have triggered heightened scrutiny when the governmental action targets
a group.” N.Y.C. C.L.A.S.H., Inc. v. City of New York, 315 F. Supp. 2d 461, 482
(S.D.N.Y. 2004); see also Giordano v. Conn. Valley Hosp., 588 F. Supp. 2d 306, 313-
14 (D. Conn. 2008).




                                           -6-
       Unlike the suspect or quasi-suspect classifications of race, alienage, national
origin, or gender, see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
440-41 (1985), we conclude that smokers do not share some immutable characteristic
beyond their control and they do not require special protection by the courts because
of vast discrimination against smokers or their political powerlessness. Nor could we
plausibly find to the contrary based upon this complaint. Gallagher pled only a single
fact in his complaint regarding smokers belonging to a suspect class—a reference to
one advertisement describing smokers as “persecuted.” Because Gallagher did not
plead facts plausibly indicating that smokers constitute a suspect or quasi-suspect
class, the district court did not err in dismissing this claim. See Iqbal, 556 U.S. at
678.

       C.    Rational Basis Review
       Where a law neither implicates a fundamental right nor involves a suspect or
quasi-suspect classification, the law must only be rationally related to a legitimate
government interest. See, e.g., Romer v. Evans, 517 U.S. 620, 631 (1996); Heller v.
Doe, 509 U.S. 312, 319-20 (1993). Such a law is “accorded a strong presumption of
validity,” Heller, 509 U.S. at 319, and is upheld “if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification,”
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). When it enacted the
Ordinance, the Board asserted public health and safety, litter reduction, and aesthetic
rationales.2 Gallagher argues that each asserted rationale fails rational basis review
and that “there is no other real justification” for the Ordinance, rendering the
legislation unconstitutional.

       Turning to the City’s health-based rationale, the Board “found that restrictions
on the smoking of tobacco products in public areas where nonsmokers may be subject


      2
       The Board interestingly did not specifically assert fire protection as a
rationale.

                                         -7-
to the effects of secondhand smoke will preserve and protect the health, safety and
welfare” of the general public. In support of this finding, the Board cited a number
of studies, including a 1999 report by the National Cancer Institute that secondhand
smoke exposure “is responsible for the early deaths of approximately 53,000
Americans annually” and the 2006 report of the U.S. Surgeon General that found
“there is no risk-free level of exposure to secondhand smoke.”

         Gallagher first argues this justification for the Ordinance is underinclusive
because the Ordinance fails to also ban other sources of air pollution that could harm
the public health, such as smoke from barbeques or exhaust from nearby vehicles.
The fact that the City has determined it appropriate to eliminate tobacco smoke from
certain public places, yet not ban other possible air contaminants, does not cause the
Ordinance to fail rational basis review. See Heller, 509 U.S. at 321 (“[C]ourts are
compelled under rational-basis review to accept a legislature’s generalizations even
when there is an imperfect fit between means and ends.”); Vance v. Bradley, 440 U.S.
93, 108 (1979) (“Even if [a] classification . . . is to some extent both underinclusive
and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule
that . . . ‘perfection is by no means required.’”) (quoting Phillips Chem. Co. v. Dumas
Sch. Dist., 361 U.S. 376, 385 (1960)).

       Gallagher next contends the City’s health-based rationale is plainly false
because the dangers to the public from secondhand smoke in outdoor areas are
minimal due to dissipation of smoke through the air that no member of the public
could possibly be harmed. He also contends the studies relied upon by the Board are
incorrect and distinguishable because the studies address indoor smoke exposure, not
outdoor smoke exposure. Gallagher concedes rational basis review is deferential to
the legislature, but maintains the standard of review is not “toothless” and “must find
some footing in the realties of the subject addressed by the legislation.” Heller, 509
U.S. at 321; Mathews v. Lucas, 427 U.S. 495, 510 (1976). However, “a legislative
choice is not subject to courtroom fact-finding and may be based on rational

                                          -8-
speculation unsupported by evidence or empirical data.” Beach Commc’ns, Inc., 508
U.S. at 315. Even “if the rationale for [the law] seems tenuous,” Romer, 517 U.S. at
632, the law survives rational basis review so long as “the legislative facts on which
the [law] is apparently based could . . . reasonably be conceived to be true by the
governmental decisionmaker.” Vance, 440 U.S. at 111.

       Gallagher’s contention that the City’s health-based justification fails rational
basis review does not overcome the Ordinance’s “strong presumption of validity.”
Heller, 509 U.S. at 319. The Board relied on a number of studies in enacting the
Ordinance, including a report of the U.S. Surgeon General indicating “there is no
risk-free level of exposure to secondhand smoke.” Although the Board could have
engaged in “rational speculation unsupported by evidence or empirical data” that
outdoor secondhand smoke exposure harms health, the Board went further and relied
on reports that “could . . . reasonably be conceived to be true.” Beach Commc’ns,
Inc., 508 U.S. at 315; Vance, 440 U.S. at 111. We need not determine whether
outdoor secondhand smoke exposure actually causes harm. Because the City
reasonably could believe this to be true, the Ordinance survives rational basis review.

       We further note the City was not “require[d] . . . to articulate its reasons for
enacting” the Ordinance. Beach Commc’n, Inc., 508 U.S. at 315. Even if the City’s
asserted rationales were to fail rational basis review, Gallagher still would have the
burden “to negative every conceivable basis which might support” the Ordinance.
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). Because the
City’s health-based justification is sufficient, we will not analyze other conceivable
rationales for the Ordinance. Gallagher’s claim that the law fails rational basis review
was properly dismissed by the district court.

      D.    Heightened Rational Basis Review
      Gallagher next argues the district court erred in dismissing his claim that the
Ordinance fails a more exacting form of rational basis review. Gallagher contends

                                          -9-
the Supreme Court established a “rational basis with bite” test in Romer, 517 U.S. at
632, invalidating legislation having animus toward a particular class of persons as its
sole purpose. Because the City’s asserted rationales for the Ordinance are
“pretextual,” Gallagher asserts, the Ordinance is “actually an arbitrary and
discriminatory treatment of smokers based on animus” that fails this heightened
standard of review and violates the Equal Protection Clause of the Fourteenth
Amendment. See id. at 634 (stating “a bare . . . desire to harm a politically unpopular
group cannot constitute a legitimate governmental interest”) (quoting Dep’t of Agric.
v. Moreno, 413 U.S. 528, 534 (1973)) (internal quotation marks omitted).

        Even assuming the Supreme Court established some form of heightened
rational basis review in Romer, Gallagher’s assertion must fail. As Gallagher has
acknowledged, a Romer-type analysis only applies where there is no other legitimate
state interest for the legislation that survives scrutiny. See id. at 634-35. Because we
have already determined the City’s health-based justification is adequate, the
Ordinance is not the product solely of animus so as to fall within the Romer ambit.

       E.     Vagueness
       Gallagher next contends the district court erred in dismissing his claim that the
Ordinance is unconstitutionally vague in violation of the First Amendment and the
Due Process Clause of the Fourteenth Amendment. He challenges the delegation of
authority to the City Manager to suspend an exception allowing outdoor smoking on
most “streets, alleys, rights of way and sidewalks” during “community events, fairs,
festivals, neighborhood events and similar public gatherings” without providing
standards to guide the City Manager’s determination. Gallagher reports “the City
Manager has not banned smoking at a festival at which [Gallagher] wanted to
smoke,” so his “challenge is . . . facial, and not as applied.”

     Regarding Gallagher’s First Amendment contention, Gallagher maintains the
City Manager’s unfettered discretion amounts to a content-based restriction on

                                         -10-
speech. See Thomas v. Chi. Park Dist., 534 U.S. 316, 323-25 (2002) (upholding an
ordinance requiring protestors to acquire a permit before demonstrating in public fora,
in part, because “adequate standards” existed that prevented a “licensing official
[from enjoying] unduly broad discretion in determining whether to grant or deny a
permit”). Where legislation regulates conduct, as opposed to speech, the First
Amendment is only implicated when the regulated conduct is “inherently expressive.”
Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 66 (2006).
Examples of inherently expressive conduct that warrant constitutional scrutiny when
burdened by legislation include the burning of the American flag, Texas v. Johnson,
491 U.S. 397, 406 (1989), the burning of draft cards, United States v. O’Brien, 391
U.S. 367, 376 (1968), and marching in a parade, Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Bos., 515 U.S. 557, 568-70 (1995). In this case, the Ordinance
regulates conduct by prohibiting outdoor smoking in certain public places. Gallagher
does “not argue[] that smoking is an expressive act protected by the First
Amendment” because “that argument ha[s] had no legs before the judiciary.”
Consequently, the City Manager’s discretion to suspend the smoking exception for
fairs and festivals does not plausibly implicate the First Amendment.

        Gallagher also argues the Ordinance is void for vagueness on due process
grounds because the lack of standards to guide the City Manager’s discretion will
result in an “arbitrary and discriminatory application” of the Ordinance. See Grayned
v. City of Rockford, 408 U.S. 104, 108-09 (1972). We need not reach the merits of
Gallagher’s due process argument. “It is well established that vagueness challenges
to statutes which do not involve First Amendment freedoms must be examined in the
light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550
(1975). In these cases, “the statute is judged on an as-applied basis.” Maynard v.
Cartwright, 486 U.S. 356, 361 (1988). As already noted, smoking does not implicate
the First Amendment on these alleged facts. Because Gallagher concedes he is only
asserting a facial challenge to the Ordinance, his claim, the City Manager’s discretion



                                         -11-
renders the Ordinance void for vagueness on due process grounds, is not properly
before this court. The district court did not err in dismissing these claims.

       F.     Privileges or Immunities Clause of Fourteenth Amendment
       Gallagher proposes the district court erred by dismissing his federal claims
without addressing his allegation the Ordinance violates the Privileges or Immunities
Clause of the Fourteenth Amendment. Gallagher did not allege this proposition in
his complaint and has never sought leave to amend his complaint to add this
allegation. See Fed. R. Civ. P. 15(a). Gallagher only asserted the proposition in his
reply brief in opposition to the defendants’ motion for judgment on the pleadings, but
contends the issue is preserved for appeal because both parties briefed the merits of
the issue in detail.

       “It is a basic principle that the complaint may not be amended by the briefs in
opposition to a motion to dismiss, nor can it be amended by the briefs on appeal.”
Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989). Gallagher’s privileges
or immunities proposition was thus not properly before the district court. Because the
proposition “was not raised in the district court or considered in the [district court’s]
ruling,” Lourdes High Sch. of Rochester, Inc. v. Sheffield Brick & Tile Co., 870 F.2d
443, 446 (8th Cir. 1989), we do not reach the merits of the allegation. The district
court did not err in dismissing Gallagher’s federal claims without addressing the
privileges or immunities proposition.

III.   CONCLUSION
       We affirm.
                  ______________________________




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