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OPINION

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.

A rubber bullet is fired over a protester by police hidden by a cloud of tear gas in Minneapolis on May 30.
A rubber bullet is fired over a protester by police hidden by a cloud of tear gas in Minneapolis on May 30.John Minchillo/Associated Press

There comes a moment in every civil rights movement when the righteous anger and grief of street protests must be translated into durable policy change. Representative Ayanna Pressley, joined by other Massachusetts lawmakers of color, knows this is the moment. “We cannot allow these fatal injustices to go unchecked any longer,” she said last week in announcing a resolution condemning police brutality. She and other prominent leaders and organizations have begun laying out a variety of proposals aimed at increasing police accountability. Two stand out as essential: taking police disciplinary measures off the collective bargaining table and ending or limiting qualified immunity.

This question — how to fairly hold police accountable for reckless acts of violence — has occupied us for many years.

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It is not new. In 2016, when Eric Garner’s mother asked a panel of policing experts (including Deborah Ramirez) how New York police officer Daniel Pantaleo could still be employed two years after he killed her son with a banned chokehold, we didn’t have an answer. We do now.

Reform must go beyond legal immunity (the question of when police can be sued), to indemnification (who pays the judgment when police are successfully sued). As it stands now, the most egregiously violent officer will likely pay nothing. The dirty secret lurking beyond qualified immunity is that we, as taxpayers, pay for police misconduct.

We should stop indemnifying police officers with taxpayer money and instead require them to carry mandatory individual liability insurance. Just as drivers with terrible records may be forced off the roads by high premiums, officers with the most dangerous histories and indicators can be “priced-out” of policing by premiums that reflect their actual risk of unjustified violence.

Altering the architecture of police indemnification might not be glamorous work — we’ve never heard anyone call for more actuaries or the involvement of insurance companies at a protest — but it has the power to be incredibly effective. And, without it, abolishing qualified immunity will be meaningless. To understand how insuring police from suits for violent actions might actually bring accountability, one has to understand how broken the current system is.

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Like doctors, lawyers, and professional drivers, police officers are currently subject to civil liability for their actions at work. However, unlike these other professionals, police officers are not required to carry individual professional liability insurance. Instead, they are almost always covered by a department-wide insurance policy or indemnified by the municipality that employs them.

When families file civil suits, it’s taxpayers who bear the burden. For example, Eric Garner’s family received a financial settlement of $5.9 million. George Floyd’s family will probably file a similar suit. However, the officer who killed Garner didn’t pay a penny. New York taxpayers paid the full judgment, along with all others like it, to the tune of $384 million over a recent five-year period. The people of New York received no additional accountability in exchange for that money; a recent academic survey of departments found individual officers nationwide pay nothing toward these judgments 99.6 percent of the time.

Ending qualified immunity without addressing this backdrop of indemnification will not bring more accountability, only balloon the burden on municipalities and their taxpayers. Thus mandatory individual liability insurance is a necessary second step to eliminating qualified immunity or narrowing its scope. It would use the enormous pile of cash that cities already pay out as a lever to alter police behavior, and in so doing restore one of the primary purposes behind the payments of civil judgments: deterring reckless police action.

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How would this work?

The most useful comparison is auto insurance. A driver who causes an accident pays a deductible before insurance kicks in and covers the rest of the judgment, ensuring victims receive compensation. After a claim or a speeding ticket, insurance premiums can go up, based on that particular driver’s history of risky behavior. It should be just so for police.

Under our proposal, a department would pay the basic premium for its officers, calculated as an average for all officers in the department. However, any officer who is subject to sustained civilian complaints in civil lawsuits, or shows other empirical signs of risk will be subject to a higher total premium that reflects that risk. That difference — the amount above the average premium — must be paid by the higher-risk officer.

There are positive incentives to improve behavior too. A police officer could pocket the difference between an average premium and their own if they have an excellent record or take additional training empirically shown to lower risk. Departments, when forced to pay the basic premiums out of their own budget (rather than allowing a city to pay claims, as many do now), would be motivated to avoid dangerous policies and implement better de-escalation training across the board as they try to lower the average officer premium.

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Strong evidence suggests that the most dangerous officers are identifiable and relatively rare. A recent study in Chicago found that “[t]he worst one percent of officers, as measured by civilian allegations, generate almost five times the number of payouts and over four times the total damage payouts in civil rights litigation.” Pantaleo, the officer who put Garner in a chokehold, had more sustained civilian complaints than 98 percent of the NYPD, and he was named in two civil suits alleging civil rights violations in the year before the incident. Jason Van Dyke, the Chicago officer convicted of second-degree murder for the on-duty shooting of Laquan McDonald in 2014, had 20 civilian complaints, placing him in the highest 3 percent of Chicago officers. While we are still learning more about Derek Chauvin, the officer who killed George Floyd, he appears to fit this pattern, with 18 civilian complaints against him and involvement in two shootings.

If a neutral insurance company was setting the professional liability premiums for any one of these officers according to their previous histories of risky behavior, each would probably have been priced out of policing before he killed. Perhaps Garner, McDonald, Floyd, and who knows how many others would still be alive if we had used this tool to push the most reckless cops in the system into another line of work.

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In the heat of this moment, we must forge real change, starting right now with mandatory individual liability insurance for police.

Deborah Ramirez is a professor of law at Northeastern University School of Law. She works with the US House Judiciary Committee on police reform issues and issues related to racial profiling. Marcus Wraight is a graduate of Northeastern University School of Law, a former BBC journalist, and currently a practicing criminal defense attorney in Maine.