The Insurance Path to Reducing Police Violence

If you think that police violence has increased recently, you’re right: between July 17 and August 12, five unarmed black men died at the hands of police in New York, Ohio, Missouri and California,.  The worst one was the killing of Michael Brown in Ferguson, Missouri on August 9.  Brown’s death led to demonstrations, looting, and some of the most extreme examples of police militarization yet seen.  It took a week before Missouri’s Governor and the state police could bring some sort of calm to the outraged community.

The five victims were all black men.  One could argue that the problem is as much racism as police violence.  In each case, the officers involved were white.  In Missouri, African-Americans are 66 percent more likely than whites to be stopped by police.

The police force in Ferguson is only 5% black while the community is 66% black. Whether the victims are white or black, violence by police appears on the rise.

The question here is whether there is a legislative response that might help solve the violence problem.  Legislation these days is difficult, given the sharp conflict between left and right views on most things.  The point here will be to follow the recent suggestion of Ralph Nader and seek to bridge ideological divisions by identifying opportunities for left-right cooperation.  Police violence might be an area for such collaboration.

Although not much attention was previously paid to their position, libertarians have been relatively steadfast in their opposition to police militarization. The Ferguson, Missouri, disaster now has brought liberals to join forces.  So it’s just possible that police violence generally may come under the collective microscope in a search for possible ways to decrease it.

Let’s look at police violence.  When a civilian is wrongly killed or injured by police, this happens: first, there is a cry for investigation; second, the victim’s family seeks justice from the administrative and criminal justice system against the officers responsible; and third, the family seeks compensation for the death or injury.  Here we’ll concentrate on compensation as a means of getting police officers to “self police” themselves and individual cops who stray towards unnecessary violence.

Take Michael Brown’s family.  They will undoubtedly sue the officer (Darren Wilson) who killed him.  But they will also sue the police department and local government, because Wilson is unlikely to have sufficient personal assets to pay for the death.  In the end the taxpayers are those who would probably bear the financial brunt if Wilson were found to have acted improperly in causing the death.  And because a lawsuit for wrongful death is a civil matter, the burden of proof for the family is less than a criminal case against Wilson.  So long as Wilson used excessive force against Brown but was acting as a police officer (and not just going off on a wild tear of his own), the police department (and hence the taxpayers) would have to pay.  Wilson would, too, but we can assume that he has insufficient assets to bear the entire burden.

Suppose that we could devise a system to relieve the financial burden on the taxpaying public?  Suppose, in other words, police departments were required to have liability insurance policies, so if they were sued by injured civilians there would be money available from a source other than taxpayers?  One would think that political conservatives would welcome that result because it would lower the tax burden.  But who should be paying for the insurance policy?

The idea being advanced here is that such policies should be required, and individual policemen should have a deduction from their salaries to pay for the policies.  This would provide financial protection for the policemen (they would all be insured) in the event they did something foolish, but it would also protect the taxpayers and provide an independent fund for the victims.  For instance, the policies could provide for up to several million dollars towards the death or injury of a civilian victim.  It might be recalled that local governments (e.g., Detroit) can go bankrupt, so the policies would provide assurance of compensation where needed.

But here’s the hooker and why progressive thinkers might also like this plan.  If individual policemen were  paying collectively from their salaries for such policies, they would immediately understand that if there is a successful lawsuit for compensation, the rates for the insurance policy will increase.  This means that individual policemen would have an incentive to act prudently and use violence only when it is clearly justifiable within societal and policing parameters. Moreover, it would mean that individual policemen would be likely to “ride herd” on their fellow officers if the latter get out of line.  And this is precisely what the insurance policy is designed to do: to provide a financial incentive for policemen to avoid unnecessary violence that leads to unwarranted deaths and injuries to civilians.

Could such a plan be enacted?  Maybe, if the right and the left get together on it.  Yes, police unions would oppose it, but the chances are they would be able to work out something so that taxpayers might share in the cost of the policies.  Nevertheless, individual policemen would still understand that police violence resulting in death or injury would cost them personally.  And that consciousness would inevitably result in an effort by the police to make sure that the law is strictly followed.

Michael T. Hertz was born in New York City in 1944, and has lived and worked in California, New York, Rhode Island, Maine, Nova Scotia, British Columbia, and France -- mostly as a lawyer and law professor. A graduate of Harvard Law School and Pomona College, he spends his time presently writing fiction, blogging and commenting on the Internet, traveling, doing photography and digital art, making wine and beer, baking bread, doing water and land aerobics, and tending his garden. His writing subjects includes France in the 1960's, post-Civil War America, and present-day California and Canada. He presently lives in San Miguel de Allende, MX. Read other articles by Michael T..