POLICE ACCOUNTABILITY: IS REPEALING QUALIFIED IMMUNITY THE RIGHT ANSWER AND IS IT ENOUGH?

By: Mary Haasl, Volume 105 Staff Member

As the trial of Derek Chauvin comes to an end,[1] Minneapolis and the nation brace for what is to come.[2] A viral recording of Chauvin’s actions this past summer,[3] which led to the horrific death of George Floyd, triggered a nationwide outcry against racial injustice and police brutality[4] and calls for Chauvin’s removal and arrest.[5] The story is all too familiar: a Black individual dying at the hands of law enforcement.[6] We saw it with Eric Garner, Tamir Rice and Michael Brown in 2014.[7] We saw it again in 2016 in the death of Alton Sterling.[8] Each of the law enforcement officials in these incidents were not charged.[9] What’s more, many of the officers who committed these acts of violence had numerous disciplinary complaints previously filed against them.[10]

Clearly, the criminal justice system in this nation is not working. In the wake of George Floyd’s death, local and national governmental officials have presented numerous proposals to address the systemic racism that pervades the criminal justice system.[11] One such idea that has gained traction, and notably passed in the House of Representatives in early March of 2021, is the elimination of qualified immunity.[12] While ending qualified immunity may be a valid step toward racial justice and holding police officers accountable, its impact may not be truly effective if there is little economic incentive for officers to behave appropriately. This Post explores why this is the case and examines the implications and critiques of one proposed solution: requiring professional liability insurance for law enforcement officials.

I. QUALIFIED IMMUNITY AND IT’S DIRTY SECRET

The Supreme Court introduced the concept of qualified immunity in Harlow v. Fitzgerald, holding that public officials would not be individually liable in civil suits unless they violated a “clearly established” constitutional right.[13] In 2017, the Court made the plaintiff’s burden increasingly difficult, mandating that a “clearly established” law requires a “particularized” set of facts, rather than a violation of “abstract rights.”[14] Support for the elimination of qualified immunity of officers, and its difficult burden, has only grown since George Floyd’s death in May 2020.[15]

While critics advocate for the elimination of qualified immunity, its elimination in and of itself, may not adequately address the entire problem. That is because, whether a police officer has been denied qualified immunity or not, officers are rarely financially liable[16] as they are nearly always indemnified by the city that employs them or covered via a department-wide insurance policy.[17]

An article by Joanna Schwartz underscores the issue.[18] Between 2006 and 2011 in forty-four of the largest seventy law enforcement agencies nationwide, local governments paid approximately 99.98% of the $730 million in monetary damages that plaintiffs received in civil rights violation lawsuits against law enforcement.[19] Further, when qualified immunity was denied to an individual officer, the officer contributed to settlement awards in only 0.41% of these cases.[20] In reality, damage judgments fall on the taxpayers of the individual’s community.[21] Therefore, while ending qualified immunity may encourage officers to act with additional caution given personal liability implications, the financial disincentive is not present. As one law professor aptly noted, “[e]nding qualified immunity without addressing the backdrop or indemnification will not bring more accountability, only balloon the burden on municipalities and their taxpayers.”[22]

II. PROFESSIONAL LIABILITY INSURANCE AS A DISINCENTIVE

So, what can we do? Is there a way we can hold police officers more financially accountable? One idea that has been explored,[23] and has slowly gained traction since George Floyd’s death,[24] is requiring that police officers carry professional liability insurance. Although this recommendation is not new, and takes many forms, [25] the most elucidated explanation of this type of requirement stems from Professor Deborah Ramirez, a law professor at Northeastern University.[26]

Most parallel to an auto-insurance policy, Ramirez suggests that police departments pay the basic premiums for its officers.[27] Then, just like with drivers, the individuals who are higher risk of perpetrating civil rights violations must pay higher premiums.[28] If an officer has a higher premium than average, they pay the difference.[29] Conversely, individuals with lower than average premiums (given, for example, their lack of civilian complaints or participation in risk-reduction trainings), can pocket the difference,[30] thereby incentivizing officers to act appropriately. In calculating risk, insurers consider multiple factors, including “early warning indicators.”[31] As Ramirez suggests, the beauty of this system is that the “bad apple” officers are priced out, and local governments save millions.[32]

III. PROFESSIONAL LIABILITY INSURANCE: THE WAY FORWARD?

Although this type of system shows promise, there are additional factors to consider. Is it fair for private insurance companies to essentially govern public sector employees?[33] What about an officer’s need to make split-second decisions, muddying the oft-cited comparison between police officers and doctors and attorneys?[34] Further, until federal legislation is passed, some state laws may preempt local governments from mandating professional liability insurance.[35]

Whether the solution is through a professional liability insurance requirement for police officers, or through some other financial disincentive, such as required financial officer sanctions as part of settlements,[36] I am not sure. Consideration of the preceding factors, as well as an empirical validation of an insurance policy’s deterrent effects[37] are both needed. One thing is certain, however: Congress must consider creative solutions, such as a professional liability insurance requirement, to address the economic incentive problem of enforcement officials. The current system does not work.

 

[1] Paul Walsh, Rochelle Olson, and Chai Xiong, Jury now has Derek Chauvin case for deliberations in killing of George Floyd, Star Trib. (Apr. 19, 2021), https://www.startribune.com/jury-now-has-derek-chauvin-case-for-deliberations-in-killing-of-george-floyd/600047627/ [https://perma.cc/6GG7-PBVT].

[2] Katie Galioto, As Chauvin verdict looms, military presence in Twin Cities unsettles some, reassures others, Star Trib. (Apr. 19, 2021), https://www.startribune.com/as-chauvin-verdict-looms-military-presence-in-twin-cities-unsettles-some-reassures-others/600047529/ [https://perma.cc/2K9B-2CRG] (noting the increased military presence in the Twin Cities in preparation for a jury verdict).

[3] Walsh, Olsen, & Xiong, supra note 1 (noting that during the events leading to Floyd’s death, Chauvin knelt on Floyd’s neck for over nine minutes).

[4] Id.; see Adrian Florido, Minneapolis on Edge as Chauvin Trial Is Set To Open, Nat’l Pub. Radio: All Things Considered (Mar. 7, 2021, 5:14 PM), npr.org/2021/03/07/974617783/minneapolis-on-edge-as-chauvin-trial-is-set-to-open [https://perma.cc/C6MD-EQ8V].

[5] Cf. Michelle Mark, The Minneapolis Police Officer Who Knelt on George Floyd’s Neck Has Been Arrested. Experts Say Prosecutors Have a Long Road Ahead, Bus. Insider (May 29, 2020), https://www.businessinsider.nl/legal-experts-explain-challenges-in-derek-chauvin-charges-prosecution-2020-5/ [https://perma.cc/AA6R-AVUC] (interviewing a legal expert that noted the arrest should have happened more quickly than it did).

[6] Breonna Taylor: Timeline of Black Deaths Caused by Police, BBC (Jan. 6, 2021), https://www.bbc.com/news/world-us-canada-52905408 [https://perma.cc/E5Q4-U4YY].

[7] Id.

[8] Id.

[9] Id.

[10] See Deborah Ramirez & Marcus Wraight, The Dirty Secret Behind Qualified Immunity for Police: We Should Stop Indemnifying Police Officers with Taxpayer Money and Instead Require Them to Carry Mandatory Individual Liability Insurance, Boston Globe: Opinion, (June 10, 2020, 10:42 AM) https://www.bostonglobe.com/2020/06/10/opinion/dirty-secret-behind-qualified-immunity-police/  [https://perma.cc/5T9F-9AFY] (“[T]he officer who put Garner in a chokehold, had more sustained civilian complaints than 98 percent of the NYPD . . . Van Dyke, the Chicago officer convicted of . . . the on-duty shooting of Laquan McDonald in 2014, had 20 civilian complaints.”).

[11] See, e.g., Deanna Weniger, Changing Sheriff to an Appointed Position from Elective May Not Be Easy for Ramsey County Board, Twin Cities Pioneer Press (July 7, 2020, 4:29 PM), https://www.twincities.com/2020/07/07/changing-sheriff-to-an-appointed-position-from-elective-may-not-be-easy-for-ramsey-county-board/ [https://perma.cc/7HGM-PVK3] (describing county board’s interest in changing the sheriff’s position from elected to appointed); Sam Levin, These US Cities Defunded the Police: ‘We’re Transferring Money to the Community’, Guardian (Mar. 7, 2021, 6:00 AM), https://www.theguardian.com/us-news/2021/mar/07/us-cities-defund-police-transferring-money-community [https://perma.cc/KE7K-985E].

[12] Nicholas Fandos, Catie Edmondson & Karen Zraick, The House Passes a Policing Overhaul Bill Named for George Floyd, Whose Death Spurred Nationwide Protests, N.Y. Times (Mar. 4, 2021), https://www.nytimes.com/2021/03/04/us/george-floyd-act.html [https://perma.cc/57MJ-LP6J]; House Passes National Police Reform Bill Eliminating Qualified Immunity for Law Enforcement, NBC: Philadelphia (Mar. 5, 2021, 12:43 AM), https://www.nbcphiladelphia.com/news/politics/house-passes-national-police-reform-bill-eliminating-qualified-immunity-for-law-enforcement/2729344/ [https://perma.cc/7FST-82BB].

[13] Harlow v. Fitzgerald, 457 US 800 (1982); see Bruce Praet, Should Cops Buy Liability Insurance, Police1 By Lexipol (Sept. 8, 2020), https://www.police1.com/police-products/financial-services/articles/should-cops-buy-liability-insurance-qVvzG9feh48ErVup/ [https://perma.cc/2TWP-8CGV].

[14] White v. Pauly, 137 S.Ct. 548, 552 (2017) (per curiam).

[15] Brett Kittredge, Reforms Could Bring Accountability, Restore Trust in Law Enforcement: Column, Clarion Ledger (June 3, 2020, 6:30 AM), https://www.clarionledger.com/story/opinion/columnists/2020/06/03/reform-law-enforcement-end-qualified-immunity-brett-kittredge-opinion/3128809001/ [https://perma.cc/YNG4-PFYB] (noting that as of June 2020, there were thirteen different petitions in front of the Supreme Court to reconsider qualified immunity).

[16] Teressa E. Ravnelli, The Blurred Blue Line: Municipal Liability, Police Indemnification, and Financial Accountability in Section 1983 Litigation, 62 Vill. L. Rev. 839, 840–41 (2017) (citing Joanna Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 890 (2014)) (“Police officers are virtually always indemnified.”); Ramirez & Wraight, supra note 10 (“As it stands now, the most egregiously violent officers will likely pay nothing. The dirty secret lurking beyond qualified immunity is that we, as taxpayers, pay for police misconduct.”).

[17] Deborah Ramirez, Marcus Wraight, Lauren Kilmister, & Carly Perkins, Policing the Police: Could Mandatory Professional Liability Insurance for Officers Provide a New Accountability Model?, 45 Am. J. Crim. L. 407, 436 (2019).

[18] Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014).

[19] Id. at 885, 890.

[20] Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1805 (2018).

[21] Ramirez et al., supra note 17, at 436; see also Yoav Gonen, Julia Marsh & Bruce Golding, NYC Has Shelled Out $384M in 5 Years to Settle NYPD Suits, N.Y. Post (Sept. 4, 2018, 12:22 AM), https://nypost.com/2018/09/04/nyc-has-shelled-out-384m-in-5-years-to-settle-nypd-suits/ [https://perma.cc/2SUY-NYFF] (noting that New York City paid more than $384 million in taxpayer funds in police misconduct settlements over the past five years).

[22] Ramirez & Wraight, supra note 10.

[23] See generally Ramirez et al., supra note 17.

[24] See, e.g., Elise Schmezler, Insurance? Union Plans? Colorado’s Cops Weight Liability Coverage Under New Police Accountability Law, Denver Post (Sept. 4, 2020, 4:59 PM), https://www.denverpost.com/2020/09/04/colorado-police-union-liability-insurance-sb217/ [https://perma.cc/TN9E-82HA] (describing a new law in Colorado where an officer could be required to pay for five percent of any settlement or judgment up to $25,000); Julian Mark, Mandatory Professional Liability Insurance for California Police? Lawmakers are Interested, Mission Local: Covering the Police (Dec. 18, 2020), https://missionlocal.org/2020/12/mandatory-professional-liability-insurance-for-california-police-lawmakers-are-interested/ [https://perma.cc/67U8-MNBB] (noting California Assembly’s consideration of using liability insurance to make officers personally liable in misconduct suits); Ivan Pereira, New York Legislators Introduce Bill to Require Liability Insurance for Police, ABC News (July 13, 2020, 3:16 PM), https://abcnews.go.com/US/york-legislators-introduce-bill-require-liability-insurance-police/story?id=71750394 [https://perma.cc/3XN9-V2DH] (describing a bill by New York Legislators that requires professional liability insurance for officers).

[25] See, e.g., Ramirez, supra note 17, at 439 (attributing the idea’s initial introduction to Professor Noel Otu’s 2006 criminal justice article); see also Martin Kaste, To Change Police Practices a Push for Liability Insurance in Minneapolis, Nat’l Pub. Radio: All Things Considered (June 27, 2016, 6:11 PM), https://www.npr.org/2016/06/27/483420607/to-stop-police-lawsuits-reformers-want-officers-to-get-insurance [https://perma.cc/9AY2-FRAK] (highlighting Minnesota’s since-disbanded Committee for Professional Policing that worked to get the requirement of professional liability insurance on the ballot in 2016).

[26] Ramirez et al., supra note 17; see also Ramirez & Wraight, supra note 10; Sarah McCammon interview with Deborah Ramirez, Liability Insurance Could Hold ‘Reckless’ Police Officers Accountable, Nat’l Pub. Radio: All Things Considered (June 7, 2020, 5:57 PM), https://www.npr.org/2020/06/07/871751070/liability-insurance-could-hold-reckless-police-officers-accountable#:~:text=Law%20professor%20Deborah%20Ramirez%20of,as%20it%20does%20for%20drivers.&text=And%20you%20would%20be%20priced%20out%20of%20driving [https://perma.cc/H73B-BJ7J].

[27] Ramirez et al., supra note 17, at 436–37.

[28] Id.

[29] Ramirez & Wraight, supra note 10.

[30] Id.

[31] Id. (including DUI convictions, domestic violence restraining orders, or other criminal convictions).

[32] McCammon, supra note 26; see also Ramirez et al., supra note 17, at 437 (citing Kyle Rozema & Max Schanzenbach, Good Cop, Bad Cop: Using Civilian Allegations to Predict Police Misconduct, 11 Amer. Econ. J.: Econ. Pol’y 225, 225 (2019)) (“The worst 1 percent of officers, as measured by civilian allegations generate almost 5 times the number of payouts and over 4 times the total damage payouts in civil rights litigation.”).

[33] McCammon, supra note 26.

[34] Mark, supra note 24 (“[P]olicing and the medical field are completely different and should not have the same requirements. ‘It is not comparable . . . to doctors who have time to plan and make a surgical plan, examine a patient multiple times before their face to make a life or death situation.’”).

[35] Bicking v. City of Minneapolis, 891 N.W.2d 304 (2017) (finding a ballot measure requiring professional liability insurance for police officers unconstitutional and preempted by Minnesota state law); see also Emma Nelson, Minnesota Supreme Court Upholds Minneapolis Decision on Police Insurance Ballot Measure, Star Trib. (Mar. 15, 2017, 10:08 PM), https://www.startribune.com/minnesota-supreme-court-upholds-minneapolis-decision-on-police-insurance-ballot-measure/416277194/ [https://perma.cc/DJK6-LC27].

[36] Schwartz, supra note 18, at 954.

[37] See, e.g., Andrea Cann Chandrasekher, Empirically Validating the Police Liability Insurance Claim, 130 Harv. L. Rev. F. 233 (2017).