Policing the Police: Could Mandatory Professional Liability Insurance for Officers Provide a New Accountability Model?
55 Pages Posted: 10 Sep 2019
Date Written: 2019
When Eric Garner's mother, Gwen Carr, asked a Congressional Black Caucus panel on policing why the officer who killed her son with an illegal chokehold was still employed, the question hung in the air. Article coauthor Professor Deborah Ramirez sat amongst the assembled experts who struggled to answer that day. This paper was born in that silence and in the inadequacies of those responses.
We begin by reviewing the current architecture of police accountability, examining civil litigation, criminal prosecution, civil service hiring practices, arbitrated internal disciplinary action and firings, civilian oversight boards, and body-worn cameras. We conclude that currently each of these mechanisms is substantially flawed and generally ineffective.
In response, we propose an innovative, market-based solution - mandatory professional liability insurance for police officers. Much the way that drivers with terrible records may be forced off the roads by high premiums, officers with the most dangerous histories, tendencies, and indicators might be "priced-out" of policing by premiums that reflect their actual risk of unjustified violence. Potential reductions or increases in premiums would create systemic effects by incentivizing both departments and individual officers to adopt policies, trainings, and procedures that are proven to lower risk. Insurance companies, an outside third-party removed from local politics, would be in an ideal position to assess indicators of risk actuarially and set premiums accordingly.
Empirically rigorous evidence suggests these indicators exist, that the most dangerous officers are identifiable and relatively rare. For example, Daniel Pantaleo, the officer who choked Eric Garner, had more sustained civilian complaints than 98% of the NYPD, and he was named in two civil suits alleging civil rights violations in the year before the incident. If he had paid an insurance premium commensurate with his record, perhaps he would have been forced to find another profession. Perhaps Eric Garner would still be alive.
Keywords: Police, Policing, Professional Liability Insurance, Eric Garner, NYPD, Accountability
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