More than a year after George Floyd’s murder by a police officer in Minneapolis was caught on video and shocked a nation, members of Congress tasked with finding a bipartisan path to policing reform are still stuck. The point of contention, causing lawmakers to miss the deadline President Biden set for Congress? A policy crucial to any meaningful and effective policing reform legislation: ending qualified immunity.
That part should be a no-brainer. The principles of accountability require the elimination of the judicially created defense that has shielded officers and police departments from a federal law, passed 150 years ago, that once gave citizens the right to seek civil damages when their constitutional rights are violated by those acting under color of law.
In the last century, the Supreme Court has stripped that law of its teeth by creating the doctrine of qualified immunity, then raising the legal hurdle plaintiffs must clear to win a judgment. Today, plaintiffs have the nearly impossible task of proving the rights police violated were “clearly established” in order to win a judgment, meaning the same circumstances were found in a previous case to be unconstitutional. Given that facts almost always vary, few victims of police brutality meet that threshold.
The only way to effectuate true change in policing is by ensuring that officers and law enforcement departments know they will have to pay for misconduct that harms citizens or that violates their constitutional rights — and by extension, motivating the taxpayers and insurers who will foot the bill for such civil penalties to also push law enforcement to deescalate, demilitarize, and make communities safer for everyone.
History has taught us that there is no simple one-step solution to overcoming the staunch resistance to policing reform from some local officials, police unions, and lawmakers. But we do know that change can come when those in power have the incentive to make it happen. It begins with ending qualified immunity so that more damages can be successfully sought by victims of police abuses, but it shouldn’t stop there.
There are fewer surefire ways to drive change than the prospect of having to explain to taxpayers why they must pay more for the misconduct of officers using excessive force or taking other recklessly dangerous actions, be it through civil judgment awards that are passed onto taxpayers or higher liability insurance premiums that are also taxpayer funded.
Consider the case of a motorist who entered into a nearly $1.4 million settlement with the city of Inkster, Mich., after being repeatedly punched and placed in a choke hold by an officer there. That amount worked out to an average $178.67 property tax bill hike to each Inkster household, because the city didn’t have that kind of money in its coffers. The prospect of many more such tax bills, in many more towns and cities, should ramp up the pressure for reform.
It’s not just taxpayers who would have a direct financial interest in limiting such payouts. Many municipalities carry liability insurance that covers civil judgments. Liability coverage not only ensures that those who are wronged by violent policing are made whole, an important part of accountability, but it also creates the financial incentive for insurers to press police departments to clean up — or pay up in the form of rising premiums. In tandem with lowering the bar for establishing a violation of constitutional rights, this could be a force for change in policing practices.
“The insurers’ point of view is, ‘Look — either your premiums go up, or you make changes to drive your liability exposure down,” said John Rappaport, a professor at the University of Chicago Law School and author of the Harvard Law Review article How Private Insurers Regulate Public Police. “It’s like how, if your car insurance rates start going up, you might say, ‘OK, it’s time to buy a safer car.’ ”
If Congress can’t reach a compromise on ending qualified immunity altogether, there is hope that it might converge on reforms that make marginal improvements. Republican Senator Tim Scott of South Carolina, a member of the bipartisan team working on crafting a compromise policing bill following GOP opposition to the House-passed George Floyd Justice in Policing Act, said he was open to ending qualified immunity for police departments, but not individual officers.
“We do that with doctors. We do that with lawyers,” he said in a Face the Nation interview. “We do that in most all of our industries. If we do that in law enforcement, the employer will change the culture.”
The ideal policy would end qualified immunity for both departments and officers, however. Most doctors, lawyers, and other professionals carry individual liability insurance. Those who face repeated claims of malpractice usually have short-lived careers, either because disciplinary boards that govern them take action or because their insurance premiums become too expensive or insurers drop them altogether.
The same principles should apply to police. The alternative is too costly for everyone.
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