As hashtags and protest chants calling for the abolition or defunding of law enforcement agencies proliferate with each case of police misconduct brought to light, a blog post published by the Law and Political Economy website argues that the U.S. must first sort out who will pay the police misconduct bills in a “fundamentally broken system.”
And more importantly, the author adds, authorities need to address the question of who should pay?
“Even if we abolish police forces as we currently know them, there will almost certainly be people authorized by the government in some form to protect public safety,” writes the essay’s author, Joanna C. Schwartz, a law professor at UCLA School of Law.
“There will almost certainly be instances in which those people—and other government officials—violate people’s constitutional rights,” she writes.
To begin with, police departments and cities around the country have money essentially baked into their budget to account for misconduct lawsuit settlements.
Minneapolis, which Schwartz uses as an example, pays settlements to victims’ families from a central “self-insurance” fund. City agencies—including the police department—contribute to this central fund, as part of their annual budgeting process.
In essence, taxpayer dollars will pay for police misconduct settlements.
“But even when money to pay for lawsuits is ‘taken’ from police department budgets as an accounting matter, there is not necessarily a tangible financial impact on departments’ operating budgets,” Schwartz found.
Minneapolis settles $2.81 million worth of misconduct cases annually, which is just 0.14 percent of the city’s $1.97 billion budget for 2020.
Schwartz sums it up this way: “Police misconduct lawsuit payouts are a relative drop in the fiscal bucket.”
Make the Officer Pay?
Others argue that if police officers were required to pay damages out of their own pockets, it would act as a deterrent. However, this idea has one fatal flaw, observes Schwartz, using the case of George Floyd as a vivid example.
The Floyd family is expected to file a lawsuit against the city of Minneapolis as a whole, and against all four of the officers who were on the scene the day that he was killed by Officer Derek Chauvin.
But in the event that Floyd’s relatives are successful, Chauvin cannot begin to pay the damages. A study published by the National Criminal Justice Reference Service found that the average police misconduct money recovery was in excess of $650,000, with some of the more egregious cases resulting in awards over $5 million.
Minnesota police officers earn an average $72,000 per year. Put simply, Schwartz says, if it were up to the officers to pay, many of the victim’s families would never receive money.
“I studied payouts in police misconduct cases in 81 jurisdictions across the country, over a six-year period, I found that officers paid just 0.02 percent of the more than $735 million awarded to plaintiffs,” Schwartz wrote.
This is by design, Schwartz said, adding that officers are monetarily “insulated from the consequences of their actions” because of “widespread indemnification.”
Indemnification policies—agreements by departments or local officials to pay defense attorney costs and any settlement or judgment that arises from officers’ actions on the job—are common in cities and counties across the country.
In other words, Schwartz writes, “cities and counties end up picking up the tab.”
End Qualified Immunity?
Some reformers advocate for eliminating “qualified immunity,” granted under a 2009 Supreme Court ruling that shields officers from damages if their actions were taken in the course of their legitimate duties.
In a paper Schwartz recently published in the Columbia Law Review, she argued that ending qualified immunity will not necessarily produce the results reformers hope for.
It would, she argues, “often still fail to hold government officials accountable when they exercise power irresponsibly.”
In any case, that remedy appears to be closed for the time being. On Monday, the Supreme Court opted not to hear a case on qualified immunity.
But Schwartz says if the goal is to include both fair compensation for victims’ families and deterrence against future police misbehavior, the responsible agencies should bear the economic consequences of their actions.
Budgeting and liability rules should therefore be structured in a way to prevent strategic undermining of those goals by the government.
Other recommendations that Schwartz offers include “adopting a broader vision of what accountability means,” which she says could include “meaningful and effective civilian oversight, and more reliance on restorative justice and community mediation.”
But, Schwartz warns, “there will still be constitutional violations by government officials, and there will still be the need to compensate and structure those payments in ways that pressure departments and officers to do better.”
The full paper can be downloaded here.