Police Liability Insurance after Repeal of Qualified Immunity, and Before

Abstract

Recently there have been calls for and legislation proposed to repeal or modify the defense of qualified immunity in suits against police for deprivation of individuals' civil rights under Section 1983. These reforms would expand the liability of police by closing off a defense that limits such liability. An issue that naturally arises in connection with these possible reforms is the impact they could have on the availability and affordability of insurance against liability imposed under Section 1983. The market for insurance against such liability is already tight. Municipalities and law enforcement organizations are paying higher premiums for less coverage, because liability has been expanding, and because the scope of future expansion is uncertain.

This Article discusses the current state of the insurance market and predicts that repeal of qualified immunity under Section 1983 would likely aggravate a market that is already in turmoil. Most of the devices that insurers sometimes use in other lines of liability insurance to manage the challenges they face are not suited for addressing the underlying causes of market turmoil. Consequently, we can expect that repeal of qualified immunity would generate more of what is already occurring – coverage would become even less available, and the coverage that municipalities are able to buy would provide less insurance for even higher premiums.

Keywords: police liability, Section 1983, police liability insurance