Police Misconduct Reform: Forcing Police Officers to Have ‘Skin in the Game’ by Creating Financial Incentives with Insurance Premiums
by David M. Reutter
While a conversation on police brutality and misconduct can evolve into a heated debate, one thing no one argues about is whether or not it occurs, for there is general acceptance that it does. Scholars have produced literature that contributes to the conversation of whether financial motivation is the most effective way to reduce police brutality and misconduct. This Article takes an in-depth look at the issues surrounding police misconduct before it moves into considering whether financial incentives reduce the incidences of excessive force and other misconduct by police. One scholar argues that the best deterrent lies in ending the public policy of indemnification of officers and require those sworn public servants to obtain personal liability insurance. In other words, make officers put some skin in the game.
“Conservatives, liberals, and independents agree that police officers must at times resort to physical force if they are to carry out fully their official responsibilities,” wrote Noel Otu, an Associate Professor in the Department of Justice at the University of Texas at Brownsville, in an article that appeared in the International Journal of Police Science & Management. “As well, there is no question the lawful use of force by police officers must at times resort to physical force by police officers frequently escalates into unlawful behavior (police brutality), and that this must be controlled.”
“Most recent official and unofficial policies are based on the plausibility of prevention through creation of civilian review boards, retirement tests, counseling, and training and retraining of officers,” wrote Professor Otu. “None of these measures seems to work well in reducing police brutality, although society is answerable to the kind of police force it chooses to have, whether it be by deliberation, power struggle, or total neglect, the fact is police brutality is an issue of great concern to individual officers, police administrators, and more importantly, the victims (society).”
Twenty-four states in 2015 considered bills to address investigatory procedures for officer-involved shootings; measures in 13 states concerned appointing a special prosecutor. Seven states considered bills to collect data and track-statistics in officer-involved deaths. Other measures dealt with chokeholds, body-worn cameras, the public’s right to film police activity, and the acquisition and use of military equipment.
Police activity and misconduct has a history of negatively impacting racial relations in poor communities. Within that history lies the hotbed issue of police brutality that has caused public protests or riots where the cycle of brutality is repeated by a militarized police force. Racial profiling in making routine traffic stops and the subsequent suspicious attitude that is typically displayed by the officer during the stop further clouds the waters of trust. The historical roots for Blacks make them mistrustful of police. In recent times, this mistrust has spilled over into Latino communities.
Civil unrest and violence hit cities during the Civil Rights Era in the 1960s, which evokes images of police dogs attacking Blacks in Alabama. The 1970s saw six unarmed college students shot by the National Guard while protesting the Vietnam War. The Rodney King beating by Los Angeles Police in 1990 was the advent of modern technology capturing police on video. Despite that evidence, the officers were acquitted, which resulted in a deadly riot in Los Angeles.
The death of George Floyd, who died as a result of the excessive use of force applied for about 9.5 minutes by Minneapolis Police Officer Derek Chauvin, triggered nationwide protests that resulted in more police brutality. History demonstrates that police action in the poorest neighborhoods spawns protests and riots. That history, when combined with the heightened police presence, fuels a tension in these neighborhoods that only requires a spark.
Police shootings in Ferguson, Chicago, Charleston, and countless other cities and towns have “brought unprecedented attention to the question of when police should respond to allegations of police misconduct,” said a report on priceonomics.com.
“Minorities are up against the weight of history and tradition in law enforcement. Police involvement in slave patrols, lynchings, race riots, the civil rights movement, and more recent civil unrest are useful historical themes,” wrote Professor Otu. “Minorities have no sufficient representation in law enforcement, especially at the management level.”
The War on Terrorism wrought change to the face of law enforcement by militarization local police. These specially trained SWAT units have become commonplace in small and medium sized municipalities. These units are regularly used to conduct crowd control and execute search warrants.
No knock search warrant execution in minority communities, which are carried out by SWAT units geared with military-grade equipment and trained in full-on military tactics to clear an area of threats. In some instances, police have used charges to blow a door out. These types of incidents negatively impact police relations in the most patrolled areas. [See: May 2021 CLN].
Some jurisdictions, such as New York City, operate under so-called “Broken Windows” policing policies, which focuses resources on poor neighborhoods of color. Professor Evelyn Malavé linked that policing policy to the court system to assert it results in the implementation of social control.
The definition of police brutality varies by one’s station in life. “[C]itizens believe that any practice that degrades their status, restricts their freedom, annoys or harasses them, or that uses physical force is police brutality,” wrote Professor Otu. “More often than not, they are probably right: ‘members of minority groups or those seen as nonconformists, for whatever reason are the most likely targets of status degradation.’”
The International Association of Police Chiefs (“IACP”) defines excessive force as “the application of an amount and/or frequency of force greater than that required to compel compliance from a (willing or unwilling) subject.”
“The baseline level for force required to secure compliance from an unwilling subject is generally defined both administratively and by statute,” wrote Professor Otu. Whether or not force is excessive is determined “by the administrative and/or civil outcomes” of the investigation or complaint. While they disagree on the definition of brutality, “citizens and the police agree that police brutality does occur in our society.”
Police face a daunting task in the face of an armed society that is experiencing terrorism threats, racism, social change, and an epidemic of mass shootings. Several officers have been ambushed and killed or seriously injured when responding to domestic violence calls. Police are confronted with gangs, criminals, drug addicts, and the mentally ill. In the face of all this, they must utilize their training and experience to make judgment calls, often in a split-second. One of the problems, scholars say, is that institutional cultural or personal beliefs and burnout can taint the decision-making process. Training and institutional culture also have a serious impact upon the mentality of officers.
Professor Otu notes that scholars have found that police brutality falls into one or more of three categories. First, it occurs in situations where “emotions of both the police and the participants are high, such as riot or mass demonstrations. Tempers flare on both sides, and police are often difficult to control. Direct orders are often disregarded at these times, and police discipline collapses.”
An example of this was illustrated when officers with the New York City (“NYC”) Police Department (“NYPD”) violently responded to protests at the 2004 Republican National Convention (“RNC”). Officers wrapped protesters in orange mesh netting and moved them to a dirty pier to be fingerprinted and confined. Some were held longer than 24 hours. Protesters sued. In 2014, NYC paid $18 million to resolve the claims of about 1,800 people. The New York Civil Liberties Union (“NYCLU”) called it the “largest protest settlement in history.”
“[W]e hope and expect that this enormous settlement will help assure that what happened in 2004 will not happen again,” said Christopher Dunn, lead counsel in the NYCLU cases.
NYPD’s response to June 2020 mass demonstrations in the wake of the killing of George Floyd proved that the historic payout had zero impact upon the treatment of persons in protest zone. Officers organized to box in, which is called “kettling,” about 300 protesters in the Bronx. Police arrested and used excessive force on area residents and non-protestors who were kettled with protesters into an intersection that became a use of force and arrest box. In yet another “historic” settlement, each protestor received $21,500 in a class action lawsuit. As of July 2022, there were 565 claims filed relating to Floyd protests. NYPD settled 220 of them cumulatively, many prelitigation, for nearly $7 million.
In the NYC scenarios, the police entered with a plan to control those whom they deemed were dangerous. While there was institutional planning, the evidence in that lawsuit showed a breakdown in police discipline when using force to arrest protesters and residents who were corralled into the arrest box.
The second category of police brutality occurs in situations where “a police group or organizations systematically, and in regular pattern, inflicts excessive force or brutality on citizens. This is most common in areas where there is racial hostility between the police and citizens,” according to Professor Otu.
Examples of these are the costly federal oversight several large cities have faced due to a systematic culture of racism and/or brutality. Los Angeles faced 12 years of oversight before a federal court in 2013 released it from the terms of a consent decree. The Detroit Police was freed after 13 years of oversight in 2013. In May 2022, California’s Oakland Police Department completed a one-year probationary period that ended 20 years of oversight. The Cleveland Police Department remains under the strictures of a consent decree that settled a lawsuit by the U.S. Department of Justice (“DOJ”).
Since 2015, Cleveland has spent over $60 million to reform its police force as the federal government looks over its shoulder. The goal of that oversight is to transform the culture within the police department with training.
Changing a culture comes with consequences, and crime can increase when the change is occurring. In Cleveland, police say they have been losing the crime war since it agreed to the federal consent decree.
“It has failed miserably in making our community safer,” said Cleveland City Council President Blaine Griffin. He noted that both homicides and felonious assaults were up a little more than 70% between 2015 and 2021. The consent decree has not led to more confidence in the police department.
The third category of brutality is in situations where “the police, during their day-to-day activities, use force beyond that which is necessary to control the situation, or make an arrest.” These are seen in events such as the killing of 12-year-old Tamir Rice as he held a toy gun in a Cleveland park in 2014, which resulted in a $6 million settlement.
Some say it’s as simple as a racial profile stop that results in rude comments from a small town cop. In some instances, unruly remarks from the citizen can escalate the situation from an officer whose pride is injured. Brutality “occurs when well-meaning officers prove incapable of dealing with the situations they encounter without needless force, or too hastily resort to force,” noted J.J. Fyfe in an article titled, The Split-Second Syndrome and Other Determinants of Police Violence.
Then, there are instances where “police brutality is a conscious act rather than the result of an unintended mistake resulting from stress or burnout,” said Professor Otu. “This is part of what is referred to as ‘hate crime police brutality.’”
“According to some police officers there are times when brutality is necessary, or at least to be expected and overlooked,” wrote Professor Otu. “Also, most police officers admit that at some time in their career they lost control of a situation and used excessive force or more force than necessary, either to control a situation or make an arrest.”
Brutality Flatlines as Awareness Increases Claim Costs
One would be wrong if they thought that there has been a rise in police brutality in recent times. The data reveal that police brutality has mostly flatlined over a 20-year period. The peaks occurred in 1995, 1996, 1997, 2009, and 2011. Yet, since 2014, the number of monthly Google searches for “police brutality” remain double or more above the peaks of prior years.
That interest is spawned by the ready availability of technology. As the public has been confronted with irrefutable proof of misconduct, it has become more skeptical and outraged at the brutality. Where it had once been rare for police officers to be charged or convicted for using excessive force, there have been several indictments and convictions of officers in recent years.
Since 2005, only 11 nonfederal police officers have been convicted of murder. Leniency is the usual course at sentencing. The average punishment for the nine who have been sentenced is 21.7 years, said Philip Stinson, a justice professor at Bowling Green State University in Ohio. The shortest sentence was 81 months, and life in prison the longest. According to the Bureau of Justice Statistics, civilians convicted of murder in 2018 received an average sentence of 48.8 years.
The IACP’s National Police Use of Force Database was “the first substantial aggregation of state, county, and local law enforcement use of force data.” Reporting is made on a voluntary and anonymous basis.
“Between 1994 and 2000 there were 150,026 police use of force incidents reported to the National Police Database Project,” according to the IACP. “Of these, 750 incidents resulted in citizen or department originated complaints of excessive force that were subsequently sustained as alleged, … [which] calculates to a rate of 42 instances of excessive force per 10,000 incidents.”
A study that appeared in The Journal of Legal Studies by authors Aurélie Ouss, an assistant professor of criminology at the University of Pennsylvania, and John Rappaport, a law professor at the University of Chicago, collected data from “roughly 350 small and midsized police agencies in a midsized state (by population), compiled by a single insurer whose identity we agreed to conceal.”
Once they winnowed the claims, they were left with “2,858 claims over 23 years and 2,590 closed claims for which we can see claim outcomes across 21 years,” stated Ouss and Rappaport in their report. “Of the 2,590 closed claims, 32 percent involve a lawsuit, and 30 percent lead to some payout being made, though those figures vary greatly across claim type.”
They concluded that the data from 1995 to 2017 failed to show an “apparent increase in recent years to explain the heightened interest in police behavior. In fact, the number of claims decreased over time, from an average of 135 claims per year in the 1990s to 127 claims per year in the 2000s to 106 claims per year in the 2010s.” They noted that during the review period, “the population was steadily rising while claims declined.”
Over the last decade, “the number of claims brought against law enforcement agencies has been relatively flat,” reported Nicholas Frankel on benchmarkanalytics.com. Yet, the cost of misconduct settlements has increased dramatically.
With the U.S. Supreme Court ruling in Monroe v. Pape, 365 U.S. 167 (1961), the face of risk management for police brutality changed forever. The Monroe Court allowed citizens to sue state law enforcement officers for damages caused by the deprivation of constitutional rights under 42 U.S.C. § 1983. It created a new area of liability for police departments and municipalities.
That liability and the public’s new awareness of the issue has pinched taxpayers and local budgets in every corner of the country. The big cities pay out the most, with NYC holding the unwanted distinction of paying out the most.
Smaller jurisdictions have faced multimillion settlements. What follows is a sampling of recent agreements to resolve police brutality claims. In December 2021, there were at least seven reported settlements.
Two of those settlements were in Chicago. A $2.9 million settlement resolved the claim of Anjanette Young, who was forced to stand handcuffed and naked in February 2019 as 13 police officers searched her home. They were acting on a bad tip that a man with an illegal firearm lived in her home. A $5 million settlement was reached in the March 2019 death of 40-year-old Javier Amber. During a routine traffic stop for failing to dim his lights, Amber was tased and later died. As officers tased him, Amber claimed he was sick and could not breathe.
The San Francisco paid $2.5 million in the December 1, 2017, shooting death of Keita O’Neil, who was shot by former officer Chris Samayoa during pursuit for an unarmed carjacking.
The City of Santa Clara was found liable for $500,000 by a federal jury. It found officer Jordan Fachko was in no way threatened when he shot and wounded Omar Gomez during a traffic stop. The situation escalated when Fachko allegedly thought Gomez was trying to run him over.
The City of Clovis paid $720,000 to settle a claim alleging police used excessive force when searching the home of Byron Espisona. During the January 2019 search, Espinosa was taken to the ground while handcuffed by officer Timothy Dronek, causing a dislocated right hip and other fractures in his leg.
When police officers with the City of Austin, California, responded in December 2018 to a report that Michael Yeager and his girlfriend were robbed, Yeager was slammed to the ground, tased, and falsely arrested. That incident resulted in a $99,000 settlement to compensate Yeager for a concussion, broken nose, and separated shoulder.
The City of Pasadena paid $7.5 million to resolve a lawsuit involving the fatal shooting of Anthony McClain, a Black man and father of three, as he fled a traffic stop for not having a front license plate. Officers claimed McClain reached for a weapon, but no weapon was found on McClain. One was found across the street.
In addition to settlement payouts, lawsuits result in attorney fees and other costs. Some cities, such as Chicago, has its own legal department. City records, however, show that in recent years, it has spent nearly $40 million annually to defend itself against mostly police misconduct claims by hiring outside attorneys.
An analysis by the I-Team with WLS found Chicago spent nearly $1 million on attorney fees in reaching a $1.9 million settlement with the family of José Nieves. In 2017, off-duty police officer Lowell Howell, shot and killed the unarmed 38-year-old Nieves. Howell was convicted of second-degree murder and sentenced to 10 years in prison. Five years after the incident, Nieves’ family reached the settlement. The City’s attorney’s fees were not announced with statements about the settlement.
“What hasn’t been revealed publicly, what sort of has been, you know, in the shadows, is what it’s costing the City to defend these lawsuits,” said Sheila Bedi, Northwestern Law Professor and Director of Community Justice Center. “So, the fact that when we see these headlines, we’re only getting a fraction of the story.”
“It’s just general spending of the City. They play with the city budget, and they play with the Law Department budget, and they’re able to say the Law Department budget is low, but they don’t have to account for the outside counsel fees,” said Mark Flessner, former Chicago Corporate Counsel. “The City Council is not aware of what the city pays.”
The Marshall Project issued a report in February 2021 that used public report data from “31 of the 50 cities with the highest police-to-civilian ratios in the country. Our analysis shows the cities have spent more than $3 billion to settle misconduct lawsuits over the past 10 years.”
Ossu and Rappaport found that between “2013 and 2015 alone, total annual payouts rose almost 10-fold, from $400,000 to $3.97 million.” Additionally, “claimants are winning more often and taking home more dollars per successful claim.” Their data found the number of successful claims increased “from an average of 33 per year in the 1990s to 37 per year in the 2000s to 39 per year in the 2010s.”
“This could be an optimistic story about the power of protest and public influence campaigns if rising payouts are leading agencies to pursue productive reforms,” wrote Ossu and Rappaport. “But it also points to the critical role of the insurer, which, by converting payouts to premiums, mediates the relationship between payouts and incentives for reform.”
Determining the scope of payouts is often wrought with red tape, resisted, or unavailable. “There’s no rule or law about what [municipalities] have to collect,” said Professor Rappaport about obtaining factual information on police brutality payouts. “It relies on the assumption that the data exists, it just needs to be collected. And that’s often just not the case.”
The Mixed Bag of Liability Protection
When police reform is talked about, usually left out of the conversation is the impact of insurance. Without liability coverage, municipalities are at risk of bankruptcy for a single police-related incident. This transforms insurance companies into “surrogate regulators,” said Professor Rappaport.
Commercial insurance companies swiftly jumped into the municipal liability game following the Monroe decision. They were the first to offer policies to help municipalities and law enforcement mitigate their exposure to liability for constitutional violations. As Nicholas Frankel pointed out in his report, those “policies worked on the basic principles of commercial insurance: grouping and limiting risk factors.” In the late 1970s and early 1980s, insurance market disruptions led some municipalities and agencies to join risk pools or self-insure.
Prior to Monroe, most municipalities prevented their police departments from purchasing liability insurance. Those policies were based on the concept of “moral hazard.” By not being insulated from the consequences, conventional wisdom holds that police would take steps to reduce wrongful arrests, illegal use-of-force, or sexual harassment. Faced with a potential wave of lawsuits, municipalities sought insurance because they couldn’t afford not to.
While there is no one “right” strategy for a municipality, the majority of the market is composed of at least one of three strategies. The same goal is shared by municipal risk pools, commercial insurance companies, and self-insurance: manage the risk in law enforcement. Each of these strategies has critical points to meet that goal.
Municipal Risk Pools are the most common kind of risk protection in the law enforcement arena. Small and medium sized communities participate in these organizations, which specialize in “‘non-profit, mission driven’ entities that, optimally, mean cost savings for municipalities compared to the fees and need for profit in commercial insurance,” Frankel reported. These organizations typically “employ retired police officers and administrators as consultants to help guide member municipalities’ risk management policies.”
While the recommendations of a risk pool are not always binding, the agreements with risk pools are usually imbued with language that can require a municipality to act or have its coverage cancelled.
The town council of Sorrento, Louisiana, learned that lesson the hard way. In 2013, it unanimously voted to abolish its own police department. That vote followed a series of events that demonstrated the department was an unmanageable liability risk.
In the Spring of 2012, the department fired an assistant chief, for undisclosed reasons, and an officer who improperly used his Taser on a college student. That scandal came on the heels of three lawsuits filed by former officers against the chief, alleging sexual harassment and racial discrimination.
Just two months before the town council’s vote, a cop who was the most zealous issuer of speeding tickets, hundreds of which were later thrown out of court, was involved in a 100-mph car wreck on a highway.
The council’s vote came after Sorrento’s insurer, Risk Management, Inc., pulled the plug on future coverage. “We just didn’t feel like the supervision was adequate to protect our risk,” said Jerry Cronin, the general manager of Risk Management, which provides liability to two-thirds of Louisiana’s police departments. “They basically ignored underwriting regulations – the things we required them to do, they didn’t do.”
Commercial insurance is most often used by midsized cities of around 100,000 citizens. This is a purely business relationship: the insurer seeks a profit as the municipality gains financial protection.
Insurance companies collect data on eight categories to assess the risk a department poses: “(1) general information, such as the municipality’s population and any significant operations, like a college or amusement park; (2) policies and procedures on high-risk issues like use of force … ; (3) education and training requirements, as well as accreditation; (4) 911 dispatch protocols; (5) jail operations … ; (6) personnel, including whether the department employs part-time auxiliary officers or police dogs; (7) prior insurance information; and (8) claims history, typically extending back years.”
Insurers reward municipalities for obtaining accreditation with national associations that provide procedural guidelines and inspect for compliance. They also make efforts “that likely affect the frequency and severity of use-of-force events.”
This, according to Professor Rappaport, provides insurers with the “potential [to act] as surrogate regulators of the police policy because their preferences substantially align with the public’s: less misconduct is generally a good thing.” Professor Rappaport said there are “at least three responses” to the concern “that insurers may overregulate the police.”
“First, although it is theoretically possible that loss prevention hampers police work, there is little to substantiate this fear. It is possible that loss prevention facilitates police work by reducing the incidence of costly and inconvenient lawsuits that distract from the agency’s core mission,” wrote Professor Rappaport. See: How Private Insurers Regulate Public Police, Harvard Law Review, Vol. 130, No. 6 (April 2017).
“Second, assuming sufficient competition, the market should temper the potential over regulation problem. This may be why we do not see insurers trying to disarm the police, for example. A municipality that wants its police to take more risks than its insurer will allow will, buoyed by public support for crime control (and assuming market alternatives), find a more lenient insurer and pay higher premiums,” continued Professor Rappaport. “And third, loss prevention that reduces the incidence of rights violations may enhance the legitimacy of the police, potentially encouraging voluntary compliance with the law and cooperation with policing efforts.”
An article published by the University of Chicago Legal Forum, titled “A Typology of Police Misconduct,” briefly considered four examples of how insurers reduce risk. “First, insurers educate officers on managing the significant stresses of the job. Officers who handle stress poorly, the evidence suggests, are more likely to act out,” Professor Rappaport. “Second, insurers encourage psychological testing of each job applicant.”
“Third, insurers increasingly tout the harm-reducing potential of body-worn cameras. At a recent conference for the Association of Governmental Risk Pools, for example, one speaker, addressing a group of municipal insurers, discussed studies finding that body-worn cameras had reduced the use of force and citizen complaints about use of force,” continued Professor Rappaport. “And fourth, insurers have begun efforts to reduce the risk of harm from police departments’ use of military equipment.”
Insurers often subsidize “virtual reality” training on use-of-force simulators. They also train police how not to use force. “Another presentation at the Association of Governmental Risk Pools conference focused on using mediation and alternative dispute resolutions on the police beat.”
Both risk pools and commercial insurance wield considerable influence upon law enforcement activity. “These insurers influence law enforcement in various ways,” wrote Professor Rappaport on the University of Chicago Research Matters Blog. “They shape the content of departmental policies on things like high-speed pursuits and the use of force. They have a hand in how officers are trained, and how much training they receive.”
Training, however, does not always play out in practice. “[F]ormal training is instantly and irreparably devalued when sergeants or older officers give those young cops those fabled instructions to ‘forget what they have told you in the police academy kid; you’ll learn how to do it on the street,’” wrote J.J. Fyfe in Training to Reduce Police-Civilian Violence. “Worse yet, when officers see it first hand at the behavioural paradigms in which they were schooled are routinely ignored in practice, formal training is neutralised and the definitions of appropriate behaviour are instead established in the secrecy of officers’ locker rooms.”
The “blue wall of silence” possibly “increases social loss (by reducing the sanction for misconduct, and thus weakening deterrence) yet decreases liability (by depriving complainants of evidence necessary to mount a case). One worries that insurers’ incentives may point in the wrong direction,” wrote Professor Rappaport. While the “‘blue wall’ may reduce expected liability in any particular case, it may increase expected liability in the aggregate by emboldening officers to break the rules.”
When compared to “deep-set cultural and institutional forces,” it is “far from clear” that an insurer’s stance on the “blue wall” has a meaningful effect on “whether a closed-lipped culture predominates,” continued Professor Rappaport.
In 2000, Professor Charles Epp published a study of 838 police departments. He found that police departments were less likely to adopt a host of best practices related to use of force if they carried liability insurance. Yet, there is evidence that insurance companies strongly influence police behavior.
In 2013, the police department in Niota, Tennessee, was threatened with cancellation of its liability insurance if it did not fire two officers. The officers were accused of beating a suspect. They were fired and the town maintained its coverage. When incidents like this result in litigation, premiums increase.
Insurance premiums can act as the canary in the mine, for if they are “priced correctly, [they] tell policymakers about the likelihood of suit. This information should facilitate political oversight of the police,” wrote Professor Rappaport. “Publicizing premiums, and making them readily comparable to similar jurisdictions, would facilitate democratic accountability as well.”
Insurers view and react to misconduct in various ways. “Not all the things we call police misconduct are equal in the eyes of insurers. With use-of-force and vehicle [pursuit] policies, we can expect insurers to be pretty good and pretty proactive on those issues,” said Professor Rappaport. “As big of a problem as it is on a societal level, if you conduct an illegal stop-and-frisk, there’s no [financial] damages.” Insurers, therefore, give little attention to such “low dollar” violations of rights.
While “high dollar” claims such as wrongful imprisonment are concerning to insurers, most take no special action to prevent it. They consider their general underwriting practices to generally cover practices that result in an innocent person being convicted via police misconduct.
The final municipal liability strategy is self-insurance. This is most frequently used by large cities with extensive tax bases and substantial budgets. Rather than having an insurance structure, they assess risk and plan a budget to cover litigation costs.
These self-insurers have the financial muscle to implement risk reduction tools, such as body-worn cameras, used by risk pools and commercial insurers. While they typically employ training and other tools, they have been doing a relatively poor job in managing risk. Professor Carol Archbold surveyed the risk-management programs of the 354 largest municipalities. Only 14 of the 354 – a little under 4% – employed a risk manager. The problem is much larger, as “the vast majority of the over 18,000 law enforcement agencies across the country have no outside reviewers to assist with accountability efforts.”
Instances of police brutality, even when the officer is convicted, do not produce reform. “This case is not going to result in widespread reforms in policing. It’s one criminal case,” said Professor Stinson. “All policing is local, and it’s very difficult to legislate reforms.”
One of the problems with self-insurers is that they become insular absent some external accountability mechanism. One insurance expert interviewed by Professor Rappaport said that self-insured municipalities do not tend to participate in risk management conferences, potentially missing out on valuable information exchange.
Another problem is that liability has already been figured into the budget and distracts from other matters. “It is usually the case,” argued Professor Carol Heimer, “that the [municipality] will have mixed reactions to loss-prevention activity only as long as it does not divert too much time and energy from other, more rewarding activities.”
Self-insurance has serious risks if not properly managed, for it can create uncertainty in taxing of local citizens. For instance, the City of Inkster, Michigan, was forced to raise property taxes by about $179 per household to pay a $1.4 million settlement.
“[S]elf-insurance controls police misconduct poorly when compared to market insurance,” wrote Professor Rappaport, and “self-insurance imposes costly externalities on the rest of society, which market insurance would reduce.”
Large police departments are complex organizations that make change a more difficult challenge. “I pity the insurance adjuster who has to penetrate the bureaucracy of the City of Chicago to get things done,” said Professor Rappaport.
Playing Legal Hardball
Whether a municipality seeks protection in a risk pool or commercial insurance or builds its own risk management and legal war chest to self-insure, the purpose is the same: reduce liability expenses.
Once a lawsuit is filed, many jurisdictions take the gloves off. NYC’s Special Federal Litigation Division fights tooth and nail against misconduct, “employing a litigation strategy that challenged disclosures and claims at every turn – an approach that critics say can prolong cases and actually drive up costs,” reported Jake Pearson in an article that was posted on propublica.org.
NYC has been sanctioned by the judge in the Floyd protest case for failing to turn over records in a timely manner. “Former attorneys described a culture within Special Fed that prizes winning, even if it means drawing out cases with merit and negotiating them down to the smallest possible payout,” Pearson reported. Public awareness and media reports on the issue prompted “some lawmakers to question not just the NYPD’s actions but whether the city effectively enables expensive payouts by aggressively defending against charges of police misconduct instead of leveraging its legal might to pressure the NYPD to change its behaviors and practices.”
“[C]ity attorneys can play a constructive role in preventing future violations of constitutional rights, and they should,” said Mandela Jones, spokesperson for NYC Council speaker Adrienne Adams, D-Queens. “It is a disservice to our city and its taxpayers when an agency tasked with protecting them not only violates their rights, but also passes the cost back on to them. It’s equally bad when that agency is enabled to continue engaging in this problematic conduct that repeats this cycle.”
Hardball litigation is played in many jurisdictions, and Chicago is a player in that game. “[T]here’s got to be a better way to resolve these cases other than wasting taxpayer money and making these families go through years of unnecessary and wasteful litigation,” said attorney Andrew Stroth, who represented the Nieves family. “There is a way that this litigation can be streamlined, and it could save taxpayers millions of dollars, but it would really require the political will to prioritize making survivors whole and to conserve taxpayer dollars.”
It is often just a few bad apples that make a police department a liability risk. A Washington Post analysis of settlement data found that between 2010 and 2020, more than 5,000 NYPD officers were named in two or more claims, which accounted for 45% of NYC’s payouts in misconduct cases. The full scope of the problem of brutality and misconduct cannot be fully measured by payout amounts. Over a 10-year period, Boston and Indianapolis police departments each spent about $13 million on settlements. Indianapolis, however, had about five times the number of settlements as Boston.
UCLA law professor Joanna Schwartz did a comparison of police departments in the similarly sized cities of Philadelphia and Houston. She found that Philadelphia had 10 times as many civil suits as Houston over the same two-year study period.
The Marshall Project said Schwartz gave several “difficult-to-quantify factors as to why that might be.
Some states have laws that are particularly protective of police officers, which raises the likelihood that lawsuits will be dismissed with no payout.
One place – like, say, New York City – might have more civil rights lawyers who are willing to take on police misconduct cases.
There might be formal or informal calls on how much a city will pay in a settlement.
It’s possible that juries in some parts of the country are more willing to rule in favor of police misconduct victims, giving cities more of an incentive to settle lawsuits before they go to trial.
The process of filing a lawsuit may be so expensive and complicated that people are only willing to wade into the legal system when they’re victims of egregious misconduct – allowing other damaging behavior to slip under the radar.
And then, of course, officers might actually use force differently in different cities. But Schwartz thought that was unlikely to be the only (or primary) reason for the variance.”
Chicago-based civil rights attorney Joe Loevy, who has worked on police misconduct cases across the country, agreed that location has an impact on the outcome. “If I go to Texas and litigate, the juries have different attitudes about whether the police should be liable and if so, what the damages should be.”
In recent years, there has been a decrease in the number of claims, but the cost of the settled claims has increased exponentially. For example, in December 2021, a federal jury in Austin, Texas, awarded $67 million to the family of a man who was fatally shot by police officers.
Baltimore has spent more than $22.2 million to resolve nearly 40 cases involving the Gun Trace Task Force. Rather than carry out their mission of getting guns off the street, the task force’s members robbed drug dealers, planted narcotics and firearms on innocent people, and assaulted random civilians.
“This is what happened when we didn’t have the oversight, when we didn’t have the training, when we didn’t go above and beyond to make sure … those people that were sworn to protect and serve hadn’t turned themselves into the biggest gang in Baltimore,” said Baltimore Mayor Brandon Scott.
The article by Professor Rappaport that appeared on a University of Chicago website examined the trend of juries being “more inclined to issue large damage awards on finding liability.” They said the “most compelling” explanation for that trend was “that society grew increasingly intolerant of harmful policing, especially after the spike in public scrutiny and media coverage precipitated by the events of 2014.” The trend may also be attributed to citizens having “grown increasingly willing to believe plaintiffs and disbelieve police officers in close cases or to deny police the benefit of the doubt.”
Such huge payouts should send shock waves into governmental offices. That, however, has not been the result. “I’ve found basically that jurisdictions don’t make much effort at all to learn from these lawsuits,” said Professor Schwartz. “There’s just no pressure for them to learn from them and then there’s no pressure to keep track of the data.”
Insurers are now keenly aware of jury verdict and settlement costs. “They are on alert now. [Insurers] woke up and thought, ‘aw crap, we’ve been pretty lax for awhile,’” observed Professor Rappaport. “If tomorrow some cop shoots someone in Paris, Texas, well, those potential jurors have been watching the TV and seeing what’s happening in Ferguson and Cleveland.”
Police shootings now “lead the conversation” within the insurance industry, said John Chino, a California public entity insurance broker, in 2015. He anticipates that high-profile police shootings will cause litigants to flock to court and prime jurors to distrust officers. As a result, he believes that “law enforcement claims are going to be way more expensive to defend.”
Insurers, however, are using every available legal tool to reduce their financial exposure. It is normal for municipalities to claim sovereign immunity. Defendant officers, in turn, claim qualified immunity. If the suit gets past the dismissal and summary judgment stages, insurers still have their eye on the bottom line: profit. A lawsuit in Georgia illustrates the power of sovereign immunity waivers in state law and how they limit recovery.
In 2016, a man stole a car near the Atlanta International Airport. During a high-speed chase, the man crashed into another vehicle, killing a woman and her two grandchildren. The victims’ estates sued, seeking $5 million. That was the limit on the policy purchased by the City of College Park and underwritten by Atlantic Specialty Insurance Company to cover police misconduct. Atlantic Specialty intervened in the suit and moved to limit liability under sovereign immunity.
Georgia law waives sovereign immunity up to $700,000. The estates argued, and the trial and appellate courts agreed, that state law “waives sovereign immunity to the limit of the insurance purchased for any sort of claim.”
The Georgia Supreme Court on February 15, 2022, reversed the lower courts’ rulings. Atlantic Specialty Ins. Co. v. City of College Park, 869 S.E.2d 492 (Ga. 2022). It held the $700,000 limit is waived only when a city purchases insurance in excess of $700,000 for the type of claim at issue. The Court’s ruling noted that “an insurance policy does not normally provide blanket coverage for any and all claims.”
The language in the policy at bar stated, “We have no duty to pay ‘damages’ on your behalf under this policy unless the defenses of sovereign immunity and governmental immunity are inapplicable to you.”
Another section of the policy said it “does not constitute, nor reflect an intent by [the City], to waive or forego any defenses of sovereign immunity available to any insured, whether based upon statute(s), common law, or otherwise, including Georgia Code § 36-33-1, or any amendments.”
The City’s liability, therefore, was limited to $700,000. The result here calls to mind Professor Schwartz’s experience that police misconduct lawsuits have little shock value within municipal government centers.
Insurers have reacted with higher premiums to push officials to manage risk. “Rates and restrictions are increasing, and ‘there seems to be fewer and fewer markets that are willing to write it,’” said Jose Peralta, the managing director, U.S. public sector and national practice leader, commercial risk, at Aon, PLC, as he noted this is a trend that has continued since 2020. “The reality is, what’s driving underwriters’ perspective seems to be the high level of uncertainty” in the current environment of rising settlements and verdicts.
“The public may not care about the person getting arrested or the cops, but they do care about the money, said NYC Councilmember Gale Brewer, D-Manhattan. “It’s millions and millions of dollars. And there’s always a push – ‘How can you push those settlements to be less?’ Well, that doesn’t answer the question: Why do they keep happening?”
Putting Skin in the Game
“Police brutality occurs in part because some (both normal and emotionally disturbed) officers have opportunities to commit this unlawful behaviour, and in part, because they are not deterred from committing it, and because the judiciary chose to ‘water down’ the doctrine of sovereign immunity,” wrote Professor Otu.
Many police departments, as noted early, have been subject to federal oversight when the institutional culture is so pervasive that there is little to no oversight of what officers do on the street. Such federal action, however, usually occurs after a public outcry, and it often takes years before litigation ensues.
Beyond the lawsuits that are covered by an insurance policy, the only deterrent for municipalities is the threat of increased premiums or cancellation of coverage. If the war chest and budget are big enough, the costs of police brutality and violation of citizens’ rights are usually viewed as simply another operating expense. So long as there is not a public outcry, most municipalities just keep carrying out their core mission, as the attorneys and insurers haggle out the details.
“Multivariate results indicate attitudes toward civil liability are weak and inconsistent predictors of behaviour because, as the literature shows, when a suit is filed, the department tends to ignore the entire situation because any settlement/award does not affect the officer or the department,” stated a Human Rights Watch report.
Police brutality and misconduct are never conducted by the municipality; it only creates policies to try to prevent it (or inadvertently allow it to flourish). According to the IACP, data from 100 percent of police departments it studied between 1996 and 1998 had a formal use of force policy.
“All police departments have volumes of written policy, but that does not mean that the policy gets enforced,” noted Professor Otu. New policies aren’t what’s lacking; it’s the consistent enforcement of the ones already in place.
Police officers are the perpetrators of police brutality and misconduct. They, however, have very little skin in the game. Their contracts or municipal policy is to afford indemnification of officers for their acts of brutality or misconduct, so they never personally feel any financial pain due to their misconduct because it’s the taxpayers who ultimately foot the bill for the officers’ abusive behavior. Additionally, officers rarely face prosecution in even the most egregious of cases. Usually, charging an officer comes only after intense public pressure.
Even when charges have been lodged, convictions have historically been rare. The acquittal of officers accused of the beating of Rodney King ignited a tension fueled environment in Los Angeles, sparking days of deadly riots. Even when convicted, judges who impose punishment upon police officer defendants commonly observe a tacit rule of leniency for judges that stands in stark contrast to the sentences of most first time citizen offenders who stand convicted of similar classes of crimes.
In other words, there is effectively a lack of institutional, civil, or criminal accountability mechanisms to combat police misconduct. Professor Otu cited a 2003 study that found that “when knowledge of lack of accountability mechanism gains control of individuals, criminal behaviour flourishes and, in this case, there is almost a direct progress from lack of accountability to police brutality.”
Citizens are compelled by criminal and civil law to respect human rights. Failure to do so can result in loss of liberty and/or property. “It’s time to require all police officers to have personal liability insurance,” Professor Otu proposed in his article. Making “officers pay for their misconduct” places responsibility where it belongs.
Officers’ compensation “should be increased to cover the basic liability insurance premium,” Professor Otu proposed. In addition, “financial liability should be taken away from the employer (government) and placed on the individual officer’s liability insurance.”
“This will give officers the incentive to ‘swallow their pride’ in some situations and behave well in order to maintain low insurance premiums,” wrote Professor Otu. He sees no merit in the argument that officers would be inhibited from performing their duties by being subjected to liability. Other professionals, such as doctors, have worked under intense scrutiny and still performed their discretionary duties to save lives. Judges and juries are well equipped to render verdicts of no liability for a party when the facts merit such a result.
The federal government took a small step towards personal accountability when it passed legislation that requires agencies to reimburse federal law enforcement officers up to half the cost of insurance to cover acts during “a major event, operational event, or one that results (or is alleged to result) in safety concerns, public alarm, injury, death, oversight, or security vulnerability or breach.”
The FEDS Protection federal law enforcement liability policy pays up to $200,000 for the legal defense of “any disciplinary or judicial sanction proceeding or administrative investigations into alleged misconduct from any act, error, or omission arising out of [the] the course and scope of employment.” It also “pays for legal defense up to $100,000 for any criminal proceeding or investigation” from job related prosecutions. The coverage is limited to the costs of defending an action, requiring indemnification, liability coverage, or personal responsibility upon a jury’s finding of wrongdoing.
In the face of recent protests and calls for police reform, only Colorado has acted upon Otu’s proposal – but in a limited way. Colorado law requires police officers to pay 5% of any jury award against them, up to $25,000. Similar measures have failed elsewhere.
Reform faces many challenges because of highly charged rhetoric and priorities on both sides. What we have seen here is that police brutality and misconduct continue to occur and that municipal liability has wrought a circle-the-wagons mentality to lessen costs.
Being a police officer is a socially commendable profession. The question here is whether they should be indemnified by the government for misconduct, or will forcing those officers to have skin in the game by mandating personal liability coverage reduce misconduct.
As Professor Rappaport explained in the Harvard Law Review, “to the extent that civil liability deters police misconduct, it necessarily works through mediating actors who force the police to internalize the costs of the harms they inflict. The question is whether the insurer or, say, the city comptroller is the better mediator of cost-internalization.”
Forcing officers to internalize the costs of their harm should have the same effect as it does on private citizens when faced with the possibility of ruinous financial liability: a pause for reflection upon the personal and financial consequences of an action or inaction. Because law enforcement is locally regulated, Otu stated that it will require an act of Congress to ensure personal liability for police officers becomes a nationwide public safety policy.
Sources: propublica.org; priceonomics.com; fedsprotection.com; chicagounbound.uchicago.edu; benchmarkanalytics.com; journals.uchicago.edu; journals.sagepub.com; themarshallproject.org; nytimes.com; nbcnews.com; policefundingdatabase.org; abcnews.go.com; businessinsurance.com; abc7chicago.com; washingtonpost.com.
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