Commentary

Make Cops Carry Liability Insurance: The Private Sector Knows How to Spread Risks, and Costs

Earlier this month, Brooklyn resident Oliver Wiggins received a $1 million settlement after NYPD officers crashed into his car and then tried to blame him for the accident by falsely accusing him of driving while intoxicated.

In 2015, the family of Eric Garner reached a settlement for $5.9 million after police applied a banned chokehold while arresting him for selling loose cigarettes outside a convenience store on Staten Island. That same year, families of victims of murders committed long ago by “Mafia Cops” Louis Eppolito and Stephen Caracappa settled their cases, bringing the total paid out to more than $18 million.

Those sums might be anomalies, but the trend is clear. The total payout for injuries caused by NYPD officers in 2017 was an unprecedented $308.2 million (up from a “mere” $92.4 million in 2007, and $152 million in 2012). That money didn’t come out of the pockets of the officers responsible for the misconduct; the bills were covered by you, the taxpayer.

That’s because police departments nearly always pick up the tab for damages caused by the officers they employ. Indeed, a 2014 study found that 99.98% of all dollars received by plaintiffs in civil rights cases against police officers were paid not by the officers themselves, but by their departments.

Fortunately, there is a better policy that is more fair to taxpayers — and has the substantial side benefit of creating strong incentives for police to avoid hurting innocent people.

Like police, doctors have a difficult and stressful job that sometimes involves making life-or-death decisions under conditions of uncertainty. But unlike police, doctors don’t expect the rest of us to pay for their mistakes. Instead, doctors carry professional liability insurance, which pays to defend them against malpractice claims and protects them from financial ruin by paying out damage awards to successful plaintiffs.

If cops had to carry insurance, the worst offenders would quickly be identified and charged higher rates. If they failed to clean up their act, they would eventually become uninsurable and thus unemployable.

Insurance companies are exceptionally good at identifying risk. Think about car insurance. The more accidents or speeding tickets a driver has had, the higher their premiums will be. The same is true for teenagers, who tend to get in more wrecks than adults and therefore represent a greater risk to the insurance company.

Instead of spreading those risks among all of their policyholders, insurance companies charge risky drivers more while giving a break to their safest drivers, who pay less.

Consider how that could work with police. Most misconduct is committed by a relatively small fraction of cops. Former NYPD Commissioner Bill Bratton defended “the vast, vast, vast majority, that 99%” who do their work well, while saying “the brutal, the corrupt, the racist, the incompetent” must face consequences.

Unfortunately, police departments have a hard time getting rid of their own bad apples: For example, the officers who tried to frame Wiggins are still employed by the NYPD; no charges have been filed against them.

But insurance companies have powerful incentives to identify the greatest risks — whether drivers, doctors or cops — and charge them accordingly. If cops had to carry insurance, the worst offenders would quickly be identified and charged higher rates. If they failed to clean up their act, they would eventually become uninsurable and thus unemployable.

This is the policy change we need to better align police incentives with public safety and respect for constitutional rights. Police officers are engaged in a profession that, while indispensably crucial, also poses serious risk, and that risk is causing taxpayers to foot an enormous bill when the officers fail to meet the standard of care.

One objection is that police are already doing a difficult and dangerous job for relatively low pay, and it would be unfair to saddle them with the additional cost of insuring themselves.

No problem. We can take that pot of taxpayer money currently being used to pay damage awards for misbehaving cops — $308 million in payouts last year divided by 34,000 uniformed NYPD officers equals nearly $10,000 per cop — and use it to give them an insurance allowance.

When very-high-risk officers see premiums go up, they would have to pay the difference out of their own pockets. That’s fair.

The relationship between police and many of the communities they serve is in a state of crisis. Much of that is due to a perception that police are insufficiently respectful of people’s rights and too quick to use force.

Private liability insurance provides an extremely powerful tool for distinguishing between the best and the worst cops. The time has come to use it.

Clark Neily is vice president for criminal justice at the Cato Institute.