An Insurance-Based Typology of Police Misconduct
38 Pages Posted: 12 Jul 2016 Last revised: 25 Feb 2018
Date Written: July 8, 2016
Not all police misconduct is the same, and different institutional regimes might manage different sorts of misconduct most effectively. This Article surveys the universe of police malfeasance from the perspective of an important but underappreciated regulatory regime: liability insurance. Nearly all but the very largest municipalities buy insurance that covers claims alleging police misconduct. In assuming the financial risk of bad police behavior, the insurers become motivated to prevent it. Criminal procedure scholarship almost entirely overlooks the salutary regulatory influence these insurers may have on police activity. Yet insurance is no panacea. Indeed, a principal aim of this Article is to probe the limits of the insurance mechanism — the places where the effects of insurance on policing are likely weak or even perverse. This exercise points us toward a typology of misconduct, along with a corresponding set of plausible approaches for reducing the occurrence of each of the types identified. In particular, the Article distinguishes varieties of police misconduct based on (1) the dollar-value of the legal claims to which they give rise and (2) the length of the delay between when the misconduct occurs and when a legal claim is typically filed. The typology suggests, among other things, that the insurance regime is a plausible surrogate for some governmental regulation of police violence but not, at present, of the sorts of misconduct that lead to wrongful convictions.
Keywords: police, insurance, liability, wrongful conviction, racial profiling
JEL Classification: K14
Suggested Citation: Suggested Citation