Who Should Pay for Police Misconduct?

Who Should Pay for Police Misconduct?

Joanna Schwartz–

George Floyd’s family will almost certainly bring a lawsuit against Minneapolis Police Officer Derek Chauvin, the three officers on the scene who stood by, and the City as a whole. Assuming Floyd’s family prevails, who will foot the bill? And who should?

In this transformative moment—during this nationwide conversation about what we empower the police to do and whether law enforcement agencies as we currently know them should continue to exist at all—sorting out who should pay the bills when the police misbehave may appear an overly technocratic fix for a fundamentally broken system.

But I believe, as Christy Lopez recently wrote, that we must “work on parallel tracks.” Even if we reduce police departments’ footprints and budgets, those changes will take time. Even if we abolish police forces as we currently know them, there will almost certainly be people authorized by the government in some form to protect public safety. There will almost certainly be instances in which those people—and other government officials—violate people’s constitutional rights. And current budgeting systems fail to achieve the paired goals of compensating people whose rights have been violated and deterring future misconduct.

Today, when police officers are sued, they virtually never pay anything from their own pockets to resolve the claims. When I studied payouts in police misconduct cases in 81 jurisdictions across the country, over a six-year period, I found that officers paid just 0.02% of the more than $735 million awarded to plaintiffs.

Officers’ financial insulation from the consequences of their actions is due to widespread indemnification. Cities and counties across the country have indemnification policies—agreements to pay defense attorney costs and any settlement or judgment that arises from officers’ actions on the job. These agreements often include some exceptions for willful or egregious misbehavior, but local officials almost always agree to indemnify their officers, even when these exceptions give them a reasonable basis to decline to do so.

When officers are indemnified, I have found, cities and counties end up picking up the tab. Small jurisdictions usually have liability insurance, and larger jurisdictions are usually self-insured. Some jurisdictions pay insurance premiums and lawsuit payouts from central government funds, and others require their law enforcement agencies to contribute to the payouts or premiums in some manner. But even when money to pay for lawsuits is “taken” from police department budgets as an accounting matter, there is not necessarily a tangible financial impact on departments’ operating budgets. Minneapolis, for example, pays settlements and judgments in police misconduct cases from a central “self-insurance” fund. City agencies—including  the Police Department—contribute to this central fund. But the Department appears not to have to cut back on other expenses to make these contributions, since the City allocates this money to the Department during the annual budgeting process and covers any overages from central funds.

The current arrangement fails to achieve lawsuits’ deterrence goals because lawsuit payouts come from such a large pot. Plaintiffs recovered $45 million in police misconduct suits against the Minneapolis Police Department and its officers from 2003-2019. Forty-five million sounds like a lot of money, and a lot of deterrence. But $45 million dollars over sixteen years amounts to $2.81 million annually, just 0.14% of Minneapolis’s $1.97 billion budget for 2020. That’s less than what the City of Minneapolis plans to pay to repair its sidewalks this year. Of course, cities are cash-strapped, particularly during this unprecedented time. And lawsuits—particularly in high-profile cases—can have powerful political consequences. But police misconduct lawsuit payouts are a relative drop in the fiscal bucket.

Some have argued that officers should be held personally liable for settlements and judgments in police misconduct cases. But a personal liability model would frustrate the compensation goals of those whose rights have been violated at the hands of police. Minnesota police officers earn $72,000 per year, on average. Officer Chauvin—who has been fired, is in custody, and has been charged with second-degree murder—could not begin to pay whatever award the family of George Floyd will presumably receive.

One might expect that a personal liability model would increase the deterrent effect of suits on officers. But few plaintiffs’ attorneys will agree to bring a lawsuit against an officer who will not be indemnified by his employer. Civil rights attorneys are generally paid from a portion of their client’s recovery. If a plaintiff wins their claim against a judgment-proof officer, the plaintiff—and their attorney—will get nothing. It’s simply not worth the risk for most attorneys. So placing financial liability directly on officers may mean less accountability, not more.

The current system is clearly broken. And the most commonly offered solution—personal liability for officers—does not actually advance lawsuits’ compensation and deterrence goals. As we are engaged in wide-ranging discussions about how to reimagine policing, we should also reimagine the ways we compensate victims of police misconduct. Three principles should guide us moving forward: 1) plaintiffs must be fully compensated for the harms they have suffered; 2) officers and police departments should suffer economic or other consequences of these suits; and 3) budgeting and liability rules should be structured in a way to prevent strategic undermining of the first two goals by government.

To achieve the first goal, plaintiffs should continue to be compensated from city budgets or insurance, not individual officers. This is the only way to make sure that people whose rights have been violated can receive just compensation. We could accomplish this goal if the law changed such that cities would be held vicariously liable for the constitutional violations of their officers. Absent that change, we will still need to rely on officer indemnification.

In fact, indemnification should become even more certain than it currently is. As I mentioned, most indemnification provisions include exceptions if the officer has behaved recklessly, maliciously, or outside the scope of his employment. But I have found that defense counsel sometimes use these limits strategically, threatening to deny officers indemnification as a way of pressuring plaintiffs into accepting lower settlements. Defense counsel have also told juries that officers will be personally responsible for any punitive damages, driving down the dollar amount the jury ultimately awards, only to have the city satisfy the entirety of the award—including the punitive damages award—after trial. And defense counsel have convinced judges to reduce jury verdicts after trial because of the financial burden on the officers—only to indemnify the officers after the verdict is reduced. Cleveland recently denied indemnification to officers after multi-million verdicts were entered against them, then hired bankruptcy attorneys for these officers so that they could avoid financial responsibility. These types of tactics frustrate the goal of compensation and cannot not be allowed.

But if officers are not going to be held financially responsible for payouts, they must suffer other meaningful consequences. Minneapolis previously considered one promising path forward. In 2016, a group called the Committee for Professional Policing pushed (unsuccessfully) for a ballot measure that would have required police officers to carry professional liability insurance.  The city would have paid the basic insurance premium. But if an officer’s premium rose—presumably due to lawsuits or other risky behavior—the officer would have been responsible for paying the difference. This approach would have allowed plaintiffs to recover damages (from the insurer) when their rights were violated, and those payouts would have had financial consequences for the officer (in the form of increased premiums) moving forward. There is an added benefit of this approach—union contracts and other political pressures can make it very difficult to fire officers. Minnesota’s insurance proposal would have created financial pressures for poorly performing officers to choose a different line of work.

We also need to find ways of increasing the impact of lawsuit payouts on cities and their police departments. It may be too difficult to transform budgeting process such that lawsuit payouts create real pressures on police departments’ bottom lines. But municipal liability insurers can—and some already do—condition continued coverage and reduced premiums on police departments adopting practices to reduce police misconduct. Self-insured cities could place similar pressures on their departments by conditioning indemnification of officers on police departments’ commitment to  closely review the information revealed in those suits—something I have found most departments don’t do—and use that information to inform training, policy, supervision, and disciplinary decisions. In fact, a city’s commitment to indemnify officers could be conditioned on its police department adopting any number of reforms, including reforms not directly tied to the lawsuits themselves.

Although I have focused here on litigation, it is clear that accountability and deterrence for police misconduct cannot come only in the form of lawsuit payouts. Part of our work moving forward must include adopting a broader vision of what accountability means, which could include meaningful and effective civilian oversight, and more reliance on restorative justice and community mediation, among other approaches. But there will still be constitutional violations by government officials and there will still be the need to compensate and structure those payments in ways that pressure departments and officers to do better. We must get the litigation budgeting piece right regardless of the ultimate reach of reforms.

Joanna Schwartz (@JCSchwartzProf) is Professor of Law at UCLA School of Law.