Jury still out on Bloomberg's legal legacy

Fordham Law in Reuters, November 29, 2012

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NEW YORK, Nov 29 (Reuters) - From police surveillance of Muslim groups to a controversial stop-and-frisk program to a ban on large sodas, New York Mayor Michael Bloomberg has aggressively challenged the status quo.

While city officials have touted the success of his initiatives in reducing crime and improving health, critics have assailed them as heavy-handed and even illegal.

Experts on both sides fueled a lively debate at a forum hosted by Fordham Law School on Tuesday evening, where they discussed the mayor's legal legacy as he finishes his 11th year in office.

New York City Corporation Counsel Michael Cardozo said the city's Law Department must be attuned to the "difficult balance between the constitutional rights of individuals on the one hand and public safety, particularly in the aftermath of 9/11, on the other."

Ticking off a series of statistics -- an 80 percent drop in robberies since 1990, a record low number of murders -- Andrew Schaffer, the police department's deputy commissioner for legal matters, said that the department's stop-and-frisk practice had paid off with a "dramatic" crime rate reduction.

The police's power to stop suspicious individuals and pat them down derives from the U.S. Supreme Court's 1968 ruling in Terry v. Ohio, when the court said that officers can do so absent probable cause if they have a reasonable suspicion that the person is about to commit, is committing or will commit a crime, Schaffer said.

But Arthur Eisenberg, the legal director of the New York Civil Liberties Union, said many stop-and-frisks appear to go on without any reasonable suspicion on the part of officers.

He also said the policy had a disproportionate impact on minorities, who make up the vast majority of stop-and-frisks.

Schaffer countered that the drop in violent crime rates had benefited minorities more than any other group, since they are typically the victims.

The two also sparred over the police department's controversial surveillance of Muslim mosques, businesses and college groups, which is part of the city's broader anti-terrorism efforts.

The department's ability to monitor political groups is governed by a consent decree that set out certain restrictions, known as the "Handschu" guidelines.

Eisenberg said media reports on the extent of the surveillance suggested police had engaged in the "infiltration" of various groups in the absence of reasonable suspicion.

Schaffer, however, said all surveillance fell within the guidelines and was approved by high-level police officials. Both stop-and-frisk and Muslim surveillance are the subjects of ongoing civil litigation.

SMOKING, SODAS, CALORIES

Bloomberg's ambitious public health programs were also a topic of contention. He has banned smoking in restaurants, bars and public parks; banned restaurants from using trans fats; required chain eateries to post calorie counts; made restaurants post "letter grades" after health inspections; and, most recently, limited the size of sugary soft drinks in many of the city's restaurants.

Thomas Farley, the city's health commissioner, said the mayor had tried to use public policies under the law to effect changes in people's behavior.

"The biggest legacy of the Bloomberg administration is not the specific policies we've put in place but rather the use of laws and policies to promote health in a modern era when we feel our biggest killers are things that people in the past have seen as behavioral choices, smoking and diet particularly," Farley said.

The city's smoking ban, for instance, has had a major impact on the health of residents, he said. The restaurant industry is booming, meanwhile, proving fears from business owners that the ban would hurt profits were unfounded.

Peter Zimroth, the city's former corporation counsel and a lawyer with Arnold & Porter who represented the restaurant industry in its unsuccessful challenge to New York's calorie-count law, said the city needs to be careful not to overreach.

The scientific evidence is still undecided on whether a ban on large-size sodas or the calorie-counting rule -- both Bloomberg initiatives -- will reduce obesity, he said. The restaurant industry has challenged the soda ban in court.

Businesses like restaurants prefer a national standard rather than a fractured set of local regulations, Zimroth said.

"I think there's a really serious cost to be paid ultimately with initiatives if in the long run they don't work," he said. "There's a price to be paid."

The forum continues on Dec. 4 at the city bar association with discussions on Bloomberg's legal legacy in education and economic development.