Yes, that’s insuring, and not, ensuring, although I believe one can lead to the other.

And I didn’t use any hashtag in the title here because, although I know about the #BlackLivesMatter vs. #AllLivesMatter controversy, I’m not weighing in on that.

Rather, I’m going to accept, without arguing, that it’s not a bad thing for every person involved when police encounter ordinary citizens that both the officers and the citizen make it home alive. If you want to argue it, head on over to Twitter, and hashtag your heart out. (Or you could comment below, and I’ll razz you, or maybe just ignore you.)

I’m also going to recognize the fact that real police reform imposed by concerned citizens like myself is probably not going to be possible, where by “reform,” we mean “let’s try to convince police officers to quit killing us.” They’re not going to stop just because we ask them, whether nicely, or with more of our own force, and that’s that. As far as they’re concerned, we just need to STFU.

Today’s police officers too often see themselves as the final solution to all problems, whether legal, illegal, social, or anti-social. In their minds, there is nothing wrong with them taking on the duties of judge, jury, and executioner based on whatever information they’re able to garner in, say, under 18 seconds.

We’re not going to be able to change that just because it’s wrong.

We might be able to effect a much smaller change, though, which could ultimately have a butterfly effect on law enforcement’s tendency to shoot first, and ask questions later. And because the change is not even remotely unreasonable, I not only propose it here, but I encourage you to take this post, spread it far and wide, and act upon it by calling your elected representatives to tell them that you support this idea. Better yet, write them a letter, so they have a tangible piece of paper in front of them detailing your desires.

This idea is not something that is original with me. Among numerous places on the Internet where I found articles about it is this blog where a veteran police chief discusses ideas for improving police forces.

The idea? Simple, really.

Let’s make it a requirement – statutorily-backed – that in order to serve as a police officer, the individual putting on the uniform must pay, out of his own pocket, for liability insurance. Let’s additionally have the statute state that if the individual is unable to obtain police liability insurance, then the individual may not be hired to work as a police officer.

So as not to decimate existing police forces, let the statute be applicable on a date-specific for all new hires, and create some kind of “phasing in” period for existing officers maybe with some sort of incentive for those who acquire such insurance sooner, rather than later.

As a criminal defense lawyer, I carry liability insurance – actually, I carry liability insurance on my office, and I carry separate malpractice insurance on myself. This is true even though it is all-but-impossible to win a malpractice lawsuit against a criminal defense attorney. I could quite literally suck at being a criminal defense lawyer (I don’t, but I could), and you’d never win a lawsuit against me for malpractice. The reasons why are not important here. The point is that I have the insurance even though it is pretty much unnecessary. [1]Incidentally, it is not – not yet, anyway – a legal requirement that I carry the insurance in California. I do it because I consider it one more sign that I’m a professional.

Oddly enough, my doctor carries insurance. Dietitians carry insurance. Dentists carry insurance. Nurses, occupational therapists, architects, contractors, real estate appraisers, land surveyors – all carry liability insurance. Hell, beauty salon operators, and athletic trainers, carry liability insurance.

So why not law enforcement officers?

Screw departmental policies, training, retraining, counseling, recruitment screening for temperament, civilian review boards, and all that sort of crap. None of it works.

Nor does it make much sense to argue, as I’ve seen some do, that the money should come out of the officers’ pockets. Officers just don’t have the kind of money to pay off the families of their victims.

The most important component of this proposal is that if an individual is unable to obtain the insurance, they are unable to work as a law enforcement officer. Period. No ifs, ands, or buts. No workarounds.

This final part of the proposal provides a beautiful means of weeding people out of the force who should never be on the force in the first place. Let insurance company actuaries help clean things up. Individual insurance companies can develop their own means of deciding who to insure, and who not to insure. After all, assessing and deciding on what is acceptable risk is what they do.

Let’s face it, we need police officers. But we only need police officers so long as the work of police officers is less hazardous to our well-being than the absence of police officers would be.

When innocent people are shot dead without warning because officers are too busy, too lazy, or too ignorant to think before shooting, then we do not need police officers.

Right now in America, you are more likely to be killed by a police officer than by a terrorist. Yet you’ll stand in line to have your balls, or breasts, or both groped; you’ll allow strangers to fondle your children; you’ll not even complain (Edit 3/21/2017: Link broken/removed.) to your congressional representatives (whose calls were “probably” also monitored) about having all your conversations collected, and archived – all this, just to feel safe.

How about we do something that will not just make us feel safe, but will actually make us safe?

If Justice Scalia’s modern police are really as professional as he thinks, then it’s well-past time to require law enforcement officers to carry professional liability insurance.

 

References   [ + ]

1. Incidentally, it is not – not yet, anyway – a legal requirement that I carry the insurance in California. I do it because I consider it one more sign that I’m a professional.

12 comments

  1. I certainly agree with you that training and retraining are all for naught, if you’ve hired wolves and are now asking them to become vegetarians.

    To get around the objections of police unions in forcing their officer to pay the costs of insurance, the state or municipality may have to pay a base rate, with the individual officers assuming responsibility for increases due to lawsuits filed against them. Otherwise, this otherwise excellent idea may never take off.

  2. Cops are already indemnified by their employers, at least where I come from. But for immunity doctrines, it seems to me that would function just like personal insurance paid for by the officer.

    The problem, then, is not that cops don’t have insurance; it’s that because of the immunity doctrine there is little chance they are going to be found liable for anything.

    And it’s not entirely “because” of the immunity doctrine, either. With judges, at least, cops and their employers are heavily favored litigants to begin with. It might be more accurate to say that the immunity doctrine is the product of that bias, not the producer of it.

    I certainly agree with the point that when it begins to cost the powers that be, the excesses of the police will be largely checked, because the institutions will start checking themselves. Because they will have the financial incentive to do so.

    Still, if “the people” got up enough gumption to persuade their legislators to abolish the immunity doctrines (which the SCOTUS read into a statute, not the constitution), I think the powers that be would probably see the handwriting on the wall and the change would begin.

    In any case, I’m not holding my breath either for your idea to take hold or mine.

    Regards.

    1. It’s hard to “lift” something from someone else before you’ve even heard about it.

      I was/am aware, however, that there already is law enforcement liability insurance out there. It’s just not a requirement that officers carry it.

      I am fairly certain that neither Jay Syrmopoulos, nor myself, are the only people to have ever thought of this, particularly since I’ve discussed it off and on for more than a few years with other attorneys.

      Nevertheless, thank you for the nasty comment.

      1. NOOOOO!!!!!!!!!!!!!!!!!!!!! It wasn’t a nasty comment toward you! I was suggesting he was lifting it from you, and his post so risibly follows yours that I think it pretty unlikely that it’s anything but a direct copy.

        Sorry it came off as dickish, though.

        1. Oh, okay. It sounded like you were saying somehow I copied from him. I didn’t bother to read through the article, although I skimmed it.

          Thanks for clarifying, and I apologize for misunderstanding.

  3. I think police unions could probably game this a bit by offering liability insurance to all their members — thus making it less likely that misbehaving officers could lose their insurance. On the other hand, if members didn’t have to buy from the union, the union might have to face some harsh economic realities about the cost of out-of-control cops.

    I’m not sure how we get there from here, but I like the idea.

    1. You may be right, but ultimately the insurance has to be backed by someone with the money to pay claims.

      If it is a traditional insurance company, they’re going to be reluctant to back policies that are going to cause them to lose money. If it is the police union itself, then that seems to me even more of an argument in favor of my proposal: let the police unions pay.

      Police unions also represent the ephemeral, potentially-mythological, “Good Cops.” When the amount of money that vanishes due to Bad Cops starts to hit home, maybe the Good Cops will finally stop standing by while Bad Cops do what Bad Cops do.

  4. You had to play the Scalia-card, didn’t you? Yea, he is our most favorite/unfavorite whipping-boy on SCOTUS. (Personally, we like Ruth Bader,.. head-and-shoulders above the rest. Anthony Kennedy, the “switch-hitter”, is bipolar par excellence.) Enough already!
    Now as to liability of uniformed police officers, it’s a great Idea: But DOA. The PBAs of Amerika are not going to go for any such–shall we say?–sh!t or silly idea, as the case may be. It is just not the way things are done in 21st C. Amerika,… period,… end of story. I mean, what crazy lunatic would think of such a thing? (Not you, R.H.; we the loyal readers are onboard!) We have one quarter of the world’s prisoners incarcerated right here,… here in the good ol’ U.S. of A., the land of the freeloaders and home of the Brave New
    World Order.
    I can see NYC PBA President Patrick Lynch going ballistic as we speak!?! “The Public does not understand Police Work!” (Well, no kidding?)

    We fight wars of “foreign intervention”. We fly armed drones over foreign sovereign nations without approval or permission in order to “take out” alleged extremists, whether U.S. citizens or not. Those considerations are irrelevant to the argument: Without warrant, probable cause, judicial review or any of the other “Constitutional” protections we were taught in school, and hold so dear?!? Ha.

    So asking humdrum, run-of-the-mill, Constitutionally ignorant, mediocre–occasionally illiterate–trigger-happy police officers to pay for their own liability is not going to fly any time soon. Sorry to say! However, it is a great idea, and possibly “brilliant”. Kudos for a great, thoughtful essay addressing a problem which will not likely be resolved in our lifetimes.

  5. Rick,

    While I applaud the sentiment, I think a key feature is missing from your argument. A law enforcement officer can carry liability insurance all day long and, under the current system, the city, county, state would still flip the bill for their misdeeds. We need to cut that tie.

    If the first step were to make an officer personally liable for his criminal actions, then there would be less need for the second step of carrying liability. The law could be changed in order to put pensions and benefits in jeopardy, as well. There are, of course, situations where fault could be found with this argument, but this is the dialogue that needs to be opened.

    I see it as a progressive ladder. If we could get this far, we could move into real grand jury systems, where grand juries have investigative powers, and private prosecutions. Maybe this isn’t the way, but opening the dialogue is the first step.

    In reality, I think the real issue is that Americans, as a corporate entity, have given up their own power. WE THE PEOPLE are the source of power, or are supposed to be, but it’s not true. A democratic mindset became prevalent in our collective thinking and we started referring to these people as “authorities”. They aren’t the authorities. WE THE PEOPLE are the authorities and we agreed to a covenant with our government, which they break on a daily basis.

    I don’t mean to move into the diatribe of “they violated my constitutional rights”, but its a mindset. There are no such thing as constitutional rights. They are God Given rights outlined in the constitution, which arent up for debate. We have been bamboozled into this idea that if the majority or government would vote away our rights, then they dont matter. The founders believed that God was the source of our rights, not government, and they weren’t up for debate or to be bartered with.

    When we talk about the American dream, it has nothing to do with making it rich. The american dream was that idea that even if I own the smallest shack in my state, no man can cross that line and take it from me or defile it. They cant tax it. They cant force me to change it.

    This is obviously a larger discussion, but let me wrap it up with this: The problem is not with government. The problem is with our own apathy. I’ve talked about this before, in other writings. John Adams once said “I must study politics and war that my sons may have liberty to study mathematics and philosophy. My sons ought to study mathematics and philosophy, geography, natural history, naval architecture, navigation, commerce, and agriculture, in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry, and porcelain.” The founding fathers did the hard stuff. We benefited from that and became comfy and apathetic, more interested in sports and sports cars than the men robbing us blind, locally and nationally. No one ever went back and studied politics and war.

    The bigger problem is that 200 million people have not walked up to the White house and dropped a copy of the declaration of independence on the lawn. We have been duped by a system that believes what it hears and goes along to get along. That’s why this doesn’t change. Let them write me a law that says that I can stand up for my neighbor in the face of tyranny and Ill know we are on the right track.

    1. Maybe before you write another blog post here, you might want to read the one you’re ostensibly responding to first. The “key feature” you seem to think I’m missing isn’t missing.

      But thanks for putting in your $10,000 worth.

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