Incentivizing Appropriate Police Behavior

Many years ago, I spent three years heading up Indianapolis’ legal department. It was–among other things–my introduction to the way municipalities defended against (and far more often, settled) claims of police misconduct and/or brutality. I’d venture to say that very few taxpayers have any idea how costly those claims can be.

A recent post to Lawfare considered not only the dollars, but the sense.

On March 12, the City of Minneapolis agreed to pay George Floyd’s family $27 million for his wrongful death via the knee of a police officer. Despite being the largest pretrial civil rights settlement, it is only a fraction of the taxpayer money spent on settling police brutality. From 2015 to 2019, more than $2 billion, mostly taxpayer money, was used on civilian payouts for police misconduct in only the 20 largest police departments.

As the article points out, the way in which we currently address payouts for police misconduct operates to absolve officers from any financial culpability, no matter how egregious the behavior that triggered the settlement. This is mostly due to qualified immunity, which I have discussed previously. Qualified immunity is a court-invented doctrine that was originally intended to protect officers when they were acting in good faith, but actually ends up allowing police officers to escape civil liability for virtually any behavior, good faith or not.

While qualified immunity often shields government officials broadly from personal liability, it is particularly used with law enforcement. And though it is applicable only to civil proceedings, prosecutors, defense attorneys, judges and even jurors are often swayed during grand juries and criminal proceedings by the protection of qualified immunity.

Depending on the state, officers accused of misconduct might even keep their police pension and even be able to sue the municipality for back pay if they are fired and then found criminally not guilty. The money for civilian payouts for police misconduct does not come from police department budgets. Rather, civilian payouts overwhelmingly come from general funds, though some come from bonds and even insurance policies, particularly in smaller areas.

Between expansive doctrines like qualified immunity and a widespread social willingness to accord police officers–who have an admittedly difficult and dangerous job–the benefit of any doubt, holding an officer personally responsible for misconduct is an exceedingly rare event.

The Lawfare article suggests structural changes that would begin to redress the current imbalance. A number of legal scholars recommend abolishing qualified immunity, and there are other changes that would provide incentives for better monitoring of officer behaviors (and arguably, better training protocols) by police departments. They include moving payouts from city budgets to police department insurance policies and having individual officers carry liability insurance.

The costs of the current system are considerable, and it would be a mistake to shrug off the Chauvin settlement as an anomaly.

Besides the settlement for Floyd’s death, a series of notable civil settlements for police misconduct include $38 million in Baltimore County, Maryland, for the wrongful death of Korryn Gaines and the accidental shooting of her four-year-old son, Kodi; $20 million in Prince George’s County, Maryland, for the wrongful death of William Green; $12 million for the wrongful death of Breonna Taylor of Louisville, Kentucky; and $6 million in Cleveland, Ohio, for the wrongful death of 12-year old Tamir Rice, who was killed while playing with a toy gun in a park. All the people mentioned above are Black. These cases are not cherry-picked but, rather, are part of a much larger systemic problem in policing and municipal government. Black people are roughly 2.5 times as likely as whites to be killed by police. Blacks are 3.5 times more likely to be killed by police when they are not attacking or do not have a weapon relative to whites, like Floyd, Green and Rice. Black women are disproportionately more likely to be killed in their homes by police, like Taylor and Gaines.

There are also many incidents that do not end in death but will probably result in civilian payouts for police misconduct. Some of the most recent incidents include a five-year-old who was arrested and yelled at by police after leaving school in Montgomery County, Maryland, as well as Marion Humphrey Jr., a 32-year-old law student who was detained for more than two hours as state troopers in Arkansas searched his U-Haul. Humphrey, the son of a retired judge, has already sued the Arkansas State Police.

Reforming the way these settlements are funded would not only incentivize improved training, oversight and behavior, it would save taxpayer dollars that could be put to far more productive use.

15 thoughts on “Incentivizing Appropriate Police Behavior

  1. The most effective incentive for good policing is the reaction to bad policing by officers themselves.

  2. Victims of domestic violence are frequently further victimized by police officers; they don’t seek financial settlements, only protection by police officers. The victims are comprised of all races and all ages, the police are primarily white. Another example of white privilege. I have saved a lengthy E-mail I sent to two Star reporters a few years ago seeking help for white police abuse of power against my white daughter, 3 granddaughters, 2 great-granddaughters and including my daughter’s white German Shepard. The 2 white police officers found a great deal to laugh about during the final confrontation in my daughter’s front yard and included the protection of the abuser who had followed the victim to her mother’s home. My granddaughter who was the abuse victim, bloodied and hysterical, was handcuffed, arrested and jailed when she could not stop crying and begging for their help. When my family got to court the following morning no charges had been filed and the 2 white Indianapolis Police Officers did not appear.

    The problems within all police departments are deeply embedded in the day-to-day public service they are trained and paid to provide to all members of the public. THAT THE ABUSES ARE CONCENTRATED ON BLACKS IS NOT DISPUTED! And cost to all of us financially and in the loss of trust in our public safety officers never comes to light due to the “qualified immunity” they are provided.

    “The costs of the current system are considerable, and it would be a mistake to shrug off the Chauvin settlement as an anomaly.”

    This nation and the world watched the deliberate murder of George Floyd; a wider audience than the public executions used to be carried out; the arrest, trial, conviction and death sentence was televised to witnesses counted in the millions. The ultimate cost of the Chauvin trial should be the national awakening of the public and restructuring of public safety organizations…no matter the cost in dollars to save all victims.

  3. Thanks Prof K. The police have great power over others. A friend once had PRO GAY stickers on his auto. He endured MANY pointless stops by Indiana police. It seemed that the bumper stickers were a magnet for the cops. Learning from his traumas, I NEVER put anything on my car.

  4. the biggest problem with so called immunity is the police unions. the afl-cio is probably the biggest to affiliate the police union memebers.. they have been asked repeatedly by civilians to let go of its affiliated police union and spare the BS. but with union membership at a low 6% in governments , they still decided to side with the police unions. a black eye no doubt. the requirements and schooling of such,are not of public domain and should be,in every aspect.
    the follow up training,some that rogue cops spend out of pocket,like the warrior training,as in Orlando Castile case,trains officers to react without regard,and expect,their superiors to back them up,after the fact. we have rogue truck inspectors on the highway,acting as though we’re all guilty of some infractions when many of us truckers are just minding our buisness. we get pulled over on shoulders of busy highways and make a dangerous situation worse. though not as serious as the cases above,if an officer is hit and killed by a passing motorist,the trucker at times have been charged indirectly for manslaughter,case in point in Virginia a few decades ago. ive crossed a few truck inspectors recently that have the attitude of attila.(these are random stops,not for infractions) the past wasn’t as bad,but today i believe the cops who are disgruntled and have failed,hang onto a badge and go truck inspector, the “attitude”of truck inspectors the last decade, has risen to be just a force of assholes.I never seen it so bad..hey minnesota,ya listening?

  5. patmcc:
    good point, the bumper sticker,i had removed a Bernie for pres off my wifes mustang when trump was dumped,she works at a truck stop in blood red NoDak..i keep mine,with a smile…make my day….

  6. As long as district attorneys can go to a grand jury for an indictment on an officer, we will continue to have a problem. DAs pretty much get whatever they want from grand juries, since they control everything the jury hears. They send these cases to grand juries to cover their rear ends. It’s always the grand jury that failed to indict the officers the DAs didn’t have the nerve to charge. Surprise, surprise! Take police misconduct out of the hands of local officials. Set up a statewide civilian review of misconduct cases and let them decide to proceed to trial or to dismiss.

  7. Two billion dollars is a lot of money. Hmmm. Maybe BLM folks have a point: It’s not about defunding the police, it’s about using that money to better train police and direct them more to crime prevention.

    I think it used to be that way. Then police started recruiting much more heavily from ex-military – the more bad ass the better – and didn’t de-program these people before turning them into street police.

  8. There is research to suggest that lawbreaking is reduced more by the surety of getting caught and convicted than by heavy punishment (see white collar crime, tax evasion, etc.). This should be an idea to drive changes in bad policing.

  9. Great article and great suggestions from commenters. Imagine having accountability assigned to the work behaviors. That should be mandatory. Sheila writes:

    “They include moving payouts from city budgets to police department insurance policies and having individual officers carry liability insurance.”

    Yes.

    The problem, as some others have noted, is police unions – the brotherhood. The brotherhood is EXACTLY why there should be negative consequences directly incurred by the police and their departments. If bad-ass Joe keeps beating people because he’s a rageaholic, and it costs me money, guess what? Bad-ass Joe is now a liability to me.

    However, if Bad-ass Joe can do what he does and the City (taxpayers) have to pay the price or receive the negative consequences, I’ll keep looking the other way.

    And yes, BLM had it right and still has it right. Canada is working on zero-policing studies. Defund the police and move the dollars into mental health and social work programs.

    Wherever else you see that negative consequences can be averted, you will always find persistent issues.

    Eliminate qualified immunity and make the police department pay for their own liability insurance. Claims come from their pension and salaries. Watch police brutality decline overnight.

  10. If settlements for police misbehavior were paid from police pension funds, my guess is that there would soon decline. Also, if police officers lived in the communities where they work, they might have different perspectives. In MN, the legislature banned ordinances that either required or incentivized police to live in the community that pays their salary. As a result, police are often viewed as an occupying force with little or no stake in the ongoing stability of the cities where they work. Bob Kroll, who was the former leader of the Minneapolis Police Union was also a very vocal and visible Trump supporter. But in Hennepin County, Trump got only about 27% of the vote.

  11. “The ultimate cost should…,” as JoAnn said, with “should” as the operative word.
    Regarding bumper stickers: My wife has insisted that we have no political ones, and being in Fl., now, I really appreciate it.
    I used to have a Human rights Watch = sign sticker, above a Darwinized “fish” sticker, and am sure that that is why I got pulled over for a speeding ticket. At the end of the little conversation with the polite officer, he suggested that “You have a blessed day,” as his parting gesture. Hey, I could be mistaken, right?

  12. Fewer non-election “political” bumper stickers, yard signs (“We believe..”) would help our culture. What do they accomplish besides more of “ME,ME,ME”…..

    Just sayin’…

  13. Perhaps a start in reform of policing would be to screen applicants for the job better. If, for instance, those in charge of psychological screening of police applicants use a Cartesian means of such effort with the assumption that all such applicants are blank screens when their prior life experiences have been so different, then we may need different testing schemes to conform as nearly as possible to the varying life experiences of applicantsl in order to obtain valid results, i. e., whether they are genuinely in search of a career in policing or want a badge for cover to rough up the citizenry.

    To wax philosophical, and beyond police brutality, police union tactics, the allocation of liability etc., perhaps we need to spend our tax money in going to causes rather than effects by providing an environment for a society to be more peaceful (UBI, single payer, wage equality etc.) in which far fewer policemen would be necessary to keep the peace. Perhaps. Whatever works.

  14. Well, Lester, unlike the thieving greed of the rich and corporate class who never make enough, perhaps ordinary Americans would cut back on their bank jobs and 7-11 holdups if they had a sure check in the mail every month. Perhaps. I recognize that reforming society through an economic lens is only a start. Maybe priests, rabbis and preachers will help if we threaten them with paying taxes or some other unholy and draconian measures. SNL? I’d be delighted to see what they would do with the red meat I have provided. Have a nice weekend.

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