With the growing number of bodycam footage on the internet, police violence is under the spotlight and will increasingly be. From my experience on the web, the most common reaction in the comment sections is “End qualified immunity”. Indeed, over the years, qualified immunity has become an increasingly controversial aspect of the legal system. Critics argue that the principle has been applied too broadly, allowing government officials in many cases to escape accountability for their actions.
But what are the limits of this so called immunity and which system of incentives could offer an alternative to it ?
As a french citizen, I decided to dig a bit into this concept, explain what it implies and suggest a way out of it through mandatory private insurance.
I will start by an historical overview leading to the current state of police accountability. In the second part, I will introduce alternatives and make a case for mandatory insurance before criticizing it in the last part of this blog.
Please keep in mind that I am not a lawyer and while I did some research, I may still misunderstand some aspects I’m introducing in this blog.
A bit of history 📖
Qualified immunity is a legal principle that shields government officials from being held personally liable for actions that they take while performing their official duties. The principle was first introduced by the US Supreme Court in 1967 in the case of Pierson v. Ray.
Under qualified immunity, a government official, such as a police officer, can only be held liable for violating an individual’s rights if their actions violated “clearly established” constitutional or statutory rights that a reasonable person would have known. This means that if a government official’s conduct did not violate a “clearly established” right, they cannot be held personally liable, even if their conduct was unlawful. The principle was intended to strike a balance between protecting the rights of individuals and allowing government officials to perform their duties without fear of litigation.
Qualified immunity primarily applies to civil lawsuits, as it protects government officials from personal liability for damages resulting from their official actions. This means that individuals cannot file a lawsuit seeking monetary damages against a government official, such as a police officer, for violating their constitutional rights if the official is protected by qualified immunity.
However, it’s important to note that qualified immunity does not protect government officials from criminal liability. If a government official, such as a police officer, engages in criminal behavior while performing their official duties, they can still be held criminally liable and prosecuted for their actions. The main issue being that the one actor having the exclusive authority to conduct a criminal proceeding is the government.
The thought exercise today is to suggest another possibility through a mandatory insurance for law enforcement officers. An insurance contract would be required in order to get the job. Civil as well as criminal proceedings (even though criminal prosecution does not usually involve monetary settlements) would be settled through this insurance. The direct consequences would be higher salaries for officers because of this cost freshly induced. On the other hand, the governement would not have to pay for its officers settlements.
Now let’s evaluate the pros and cons of this solution and assess how the insurance rates would react and evolve.
In Favor 🟢
- Accountability
Mandatory insurance would offer an additional layer of accountability for police officers that could lead to better policing and fewer cases of misconduct. If an officer knows that their actions will have financial consequences, they may be more likely to think twice before using excessive force or engaging in other forms of misconduct. The so-called bad apples would naturally be driven out of the police workforce by higher insurance prices.
- Higher Salaries
Furthermore, mandatory insurance would reward police officers who maintain a clean career with lower premiums and, therefore, effectively increase their salary with every year without any trouble caused. This would incentivize officers to follow good practices and decrease the likelihood of police misconduct. Additionally, mandatory insurance could potentially push for older agents to continue working on the ground by compensating some physical and riskier attributes of the job with a better salary. This could ensure that experienced officers remain on the force, which is important for maintaining stability and continuity within law enforcement agencies.
- Qualifications and Selections
Applying for a police position with mandatory insurance would require a pre-selection by the insurers, which could, in turn, allow for a private company-led background check. Private insurance companies could also create and deploy courses and certifications that would allow for some skill attribution and constant renewal. As a result, a lower premium would effectively mean getting a better salary. This would incentivize respectful individuals to enlist comparatively to troublemakers. Moreover, some older individuals may be considered a bigger liability as they may engage in self-defense with a gun instead of a physical altercation. However, with the right training and certification, these older individuals could be included in the force and provide valuable experience in the field as mentionned above.
- Compensation for Victims
Mandatory insurance would provide a means for victims of police misconduct to seek compensation for damages they have suffered. Currently, it can be very difficult for victims to sue law enforcement officers and departments, and even more difficult to obtain damages if they win their case. By mandating insurance, victims of police misconduct could have an easier time seeking monetary damages for the damages they suffer through these insurance policies.
- Reduced Public Costs
In theory, mandatory insurance could reduce the burden on taxpayers for covering the costs of settlements and judgments against officers and departments. Instead of relying solely on taxpayer-funded settlements, victims could potentially receive compensation from the officer’s insurance policy.
Against 🔴
- Higher Premiums
One of the biggest arguments against mandatory insurance is that it could raise premiums for law enforcement officers, making it more difficult to attract qualified candidates to the profession. Additionally, departments may be required to pay a portion or all of the premiums, which could add to their already-strained budgets.
- Potential for Unfairness
There is also a potential for mandatory insurance to be unfair to officers who work in high-risk areas or other circumstances that make them more likely to be sued or face legal action. Police officers may end up paying higher premiums even if they don’t engage in misconduct simply because of the nature of their job. Any insurance policy needs to take into account the unique working environments of officers and adapt to account for higher risk conditions.
- Difficulty in Obtaining Insurance
Officers who have a history of misconduct or are deemed high-risk by insurance companies may have difficulty obtaining insurance, which could effectively prevent them from working in law enforcement. This could create staffing shortages and make it more difficult for departments to hire and retain officers. On the other hand, such a situation would force the public to offer higher salaries in order to pay for higher insurance, leading to attracting new people who would profit from the increase as they would not have such high premiums. Effectively
- Potential for Insurance to Shield Misconduct
Another concern with mandatory insurance is that it could create a situation where officers engage in misconduct with the knowledge that they are covered by insurance. This could encourage officers to be more reckless or to engage in behavior they would otherwise avoid. Insurance companies need to have appropriate controls in place to discourage misconduct and investigate any suspicious claims.
- Inaction from Officers
If government officials are constantly under the threat of being sued, they may become overly cautious in their actions, leading them to refrain from taking necessary actions to perform their duties effectively. However, this risk can be mitigated by yearly evaluations of performance for every officer, which could provide a clearer picture of why an officer failed to act appropriately in a certain situation.
Conclusion
Even though qualified immunity is far from a license to kill, it allows for some protection and, most importantly, it does not keep out the bad cops by pushing them out of the system. There is no perfect solution when it comes to building an effective law enforcement incentives system, but I believe mandatory insurance is not the worst. We discussed it briefly, but it comes in different forms; we could think of aggregated premiums by police station. It may dilute the responsibility but enforces knowledge management from the elders, as well as pushing out the bad elements early in the process. However, there are some adverse effects, as such a policy would increase police crime dissimulation drastically, as the only way to avoid losing money for a cop would be to hide the crime, especially if the insurance premium is the same for the whole squad.
Anyway, I won’t dwell on a lengthy conclusion. Please let me know what your thoughts are about private mandatory insurance for law enforcement. As always, feel free to reach out in order to share pro/con ideas as well as alternative or ressources you’d suggest.