By Carla Murphy, The Chicago Reporter
As an advocate for victims of police brutality and their families, Michelle Gross has alternately worked with and needled Minneapolis city officials. During 30 years of activism, Gross has pursued many, if not most, ways for residents to improve police accountability, from designing civilian oversight to compiling hard-to-get complaint data.
Then six years ago she got a different idea: professional liability insurance. Doctors and lawyers carry malpractice insurance. Why not require police officers to purchase coverage and make them, not just the city, pick up the tab in misconduct settlements?
Gross didn’t know it, but she was about to shake the dust off an old idea that had disappeared from practice more than 50 years ago. The idea upsets modern norms, divides policing experts and potentially recalibrates the balance of power between community, police and city government.
“I thought it was flipping brilliant,” Gross said.
At the time, a string of police misconduct suits and six-figure settlements under then-police chief Tim Dolan had grabbed local headlines. Gross saw a chance to attack a two-pronged problem: officer discipline and runaway payouts. “I’m a homeowner and taxpayer, and I don’t like that our city is budgeting for police misconduct,” she said.
‘It’s using market forces to motivate individual cops to change police culture’ – Michelle Gross, Committee for Professional Policing co-founder
After a few setbacks, Gross in 2012 helped create the Committee for Professional Policing (CfPP), which proposed a city charter amendment that would require Minneapolis police officers to carry a type of malpractice insurance. Initial canvassing yielded almost 3,000 signatures, less than half the number needed to place the amendment on the general election ballot.
Then, in August 2014, Michael Brown was killed by a police officer in Ferguson, Mo. Last November, Jamar Clark was killed by a Minneapolis police officer.
Witnesses testified that Clark, a 24-year-old African-American, was unarmed and handcuffed when Officer Dustin Schwarze fatally shot him. The next day, more than 100 protesters shut down part of a major interstate freeway in the city, and a demonstration outside the 4th Precinct grew into a nearly three-week encampment. During “the occupation,” as activists describe it, white men using racist epithets shot into the crowd, injuring five black men.
As events in a city known for its liberal politics escalated toward a Ferguson-level racial crisis, the momentum for the amendment grew. By June, the CfPP had collected more than 14,000 signatures. According to the Star Tribune, a city review last Thursday validated 6,360 but the group has until July 5 to gather another 509 signatures and make up the difference. Dave Bicking is not worried about getting on the November ballot.
“In the time that we’ve canvassed for this amendment, the climate has changed dramatically,” said Bicking, a former civilian review board member and candidate for City Council who co-founded the CfPP with Gross. “People are not happy with policing, and they’re ready for something to happen.
“It’s possible, now, to try something new and untested.”
Small number, ‘much mayhem’
Since Ferguson, police violence has topped the list of national conversations. News reports have revealed that police officers rarely face criminal charges following custodial killings or assaults, and few are convicted. In nonfatal cases for excessive force, false arrest or lying, experts say police union contracts and arbitration rulings can trump the power of civilian review boards, police chiefs or the courts.
Minneapolis, which has a population of more than 410,000, appears to fit the pattern. A 2013 Star Tribune investigation found that from 2006 to 2012 the city paid nearly $14 million to settle cases of alleged police misconduct. Of those 95 payouts, eight resulted in disciplinary action for the officers involved. From 2013 to 2015 alone, 67 cases cost Minneapolis almost $6.5 million, according to data released to The Chicago Reporter.
Currently, external review of Minneapolis Police Department officers lies with the Office of Police Conduct Review, a four-year-old body of which Gross is a vocal critic. And while City Council this February approved a $4 million contract to outfit all officers with body cameras by year’s end, Gross believes cameras are overhyped.
Experience makes Gross wary — and experimental. “I’ve seen people try really hard to implement [accountability] recommendations and there’s no follow-through by the city, no political will to push them through,” she said.
In her view, the police insurance amendment bypasses politics.
The CfPP expects that the city will continue to insure all police officers. But the proposed amendment adds a financial penalty for officers with an excessive number of complaints or claims. Beyond the base rate, the amendment states, “[individual] officers must be responsible for any additional costs due to [their] personal or claims history.”
“It’s using market forces to motivate individual cops to change police culture,” Gross said. She reasons that, “If you have to pay for the coverage you might be less inclined to engage in misconduct.”
The amendment doesn’t specify how many or what types of complaints will trigger an increase in premiums. Triggers are for the insurance company or companies to decide after assessing risk and setting their premiums, Bicking explained in an email.
“The insurance companies have a profit motive to reduce risk, which in return can be expected to reduce not just their payouts, but also reduce the risk and harm to the public,” Bicking wrote. “Our approach is to require officers to carry their own professional liability coverage (as opposed to requiring the city to purchase one policy covering all officers). This takes the risk to a more granular level and transfers the cost for increased premiums due to misconduct to the officer who engaged in it.”
Most officers receive few complaints and no lawsuits through their careers, Bicking said by phone. “But much mayhem is committed by a small number,” he said. “If you got a dozen of the worst officers off the street, it would have a dramatic impact on people’s lives.”
So, could police liability insurance improve officer accountability and reduce the city’s settlements tab?
One of the nation’s leading police litigation experts suggests that may be the wrong question.
“People want a silver bullet, but there are none,” said Joanna Schwartz, a professor at the UCLA School of Law and author of perhaps the only national study of police indemnification. “I think we have to be in a stage of experimentation and measurement [with many police accountability measures], because clearly the status quo isn’t working.”
Schwartz found that from 2006 to 2011, officers personally paid approximately .02 percent, or $150,000, of an estimated $735 million. That’s the total sum for civil rights claims paid over that period by 44 of the country’s largest jurisdictions.
She said, “Creating financial incentives should be one of the levers we think about.”
Awards, settlements not working
Civil lawsuits, ubiquitous today, were among the financial levers in response to police violence in the 1960s.
“One of the early civil rights strategies was to sue and raise the dollar cost of misconduct,” said Sam Walker, emeritus professor of criminal justice at the University of Nebraska at Omaha. “But that hasn’t worked.”
‘We have to be in a stage of experimentation and measurement [with many police accountability measures], because clearly the status quo isn’t working.’ – Joanna Schwartz, UCLA law professor
Walker cites cities like Chicago, New York and Baltimore. All have paid multimillion-dollar settlements over the past 20 years, and in that time they have continued to manage repeat, high-profile cases of police misconduct and custodial deaths. Mayors have also fired police chiefs — this year, in Chicago, Baltimore and Oakland — in response to public outcry over such incidents.
Another fiscal approach targets police department budgets. San Francisco voters in 1995 approved a city charter amendment that identified misconduct settlements and awards in a separate line item in the Police Department budget. Police officials have to request additional settlement money from the Board of Supervisors, a joint city-county legislative body that also approves the payouts.
Advocates’ intentions were twofold, according to a 1998 Human Rights Watch report that documented similar patterns of police brutality and lax accountability in 14 large U.S. cities — including Minneapolis — from late 1995 to early 1998. They thought that if the police department tracked dollar amounts, it would focus attention on disciplining problem officers. They also hoped that removing the misconduct monies from a general fund and identifying them in a line item in the police budget would promote transparency and accountability.
Awards and settlements rarely if ever impact police department budgets directly, however, Schwartz said. Self-insured cities, according to research, budget for litigation costs. In practice, as Gross and other taxpayers have noticed, cities do not appear to have a “cap.”
“The problem with making police departments pay out of their own budgets is, say, there’s a $4 million judgment,” said Walker, “they’ll scream that they have to lay off officers. No mayor or city council will let that happen.”
Walker also opposes the Minneapolis amendment. “I feel very strongly that liability insurance is only going to deal with a very small percentage of cases,” he said. “And I don’t think it’s worth our effort to invest in it.”
Police liability insurance may be a tool for financial oversight of police, but decades of research lead Walker to focus on “strategies for preventing abuse,” backed up by regular independent audits. He favors requiring officers to complete use-of-force incident reports, followed by an immediate and careful review by their supervising sergeants for lack of detail, missing information and dishonesty. Walker said sergeants should cite officers for breaching any of the above requirements.
Except for the handful of police departments that have been under federal consent decrees and investigated by the Department of Justice, it’s impossible to know how many of the nation’s 18,000 law enforcement agencies currently meet such accountability requirements.
“These methods cover all officers and raise the overall performance of a department,” he said, adding that early intervention systems also identify officers before they are involved in “some horrendous incident.”
Lt. Bob Kroll, president of the Police Officers Federation of Minneapolis, is a harsh critic of the proposed police insurance amendment.
The vast majority of the Minneapolis Police Department’s 866 officers belong to the federation.
Members currently pay for coverage for legal representation, he said. Under the terms of the union contract, the city is responsible for payouts resulting from misconduct settlements and judgments. Kroll said, “It’s been like that for at least 20 years.”
Kroll, who spent 15 years as a SWAT member, believes that efforts like the police insurance amendment will deter people from going into policing at a time when the city needs “upwards of 1,000 officers” to keep pace with its growing population. He said the amendment will also deter good policing.
Kroll said, “I want my officers to rush to the scene of a burglary in progress and use force if necessary without a concern for what will happen down the line in legal [financial] ramifications.”
High court once ruled on liability
Though it is extremely rare for a police officer to pay out of pocket for settlements and judgments, the idea that officers are financially responsible is actually an old one.
In Monroe v. Pape in 1961, the U.S. Supreme Court ruled that police officers are individually liable for civil rights violations. The case originated in the events of 1958 in Chicago. A detective squad led by Frank Pape arrested James Monroe, an African-American, without a warrant. Pape’s unit forced Monroe and his wife to stand naked with their children while the officers ransacked their home. Monroe was a suspect in the fatal shooting of a white insurance sales agent. He was taken to the police station and detained on “open” charges for 10 hours, while he was interrogated about the murder.
Pape’s illegal arrest soon fell apart, and Monroe sued the officers for $200,000 in damages. After the case went to the Supreme Court, Monroe won an $11,000 judgment from the lower court; the amount was later lowered to $8,000 on appeal.
At some point after the case, the practice of holding police officers — like other municipal employees — financially liable for misconduct suits disappeared. In the 1960s and 1970s, vanguard civil rights groups like the NAACP Legal Defense and Educational Fund chipped away at the Monroe ruling because it shielded municipalities from federal lawsuits.
Walker also notes that during the same time, police unions organized in response to protests against police. They won special protections, referred to as “police rights,” through state legislation or collective bargaining. These changes made it more difficult to bring charges against police.
A police officer’s job is different from that of a doctor or lawyer, Kroll said, and the equivalent of personal malpractice insurance should not apply. “Doctors, with the exception of those in the ER, have the luxury of analysis before, during and after their decisions. Lawyers have the opportunity to research, review and consult before they decide,” he said. “Comparing them to police officers who make split-second decisions is like a whole other realm.”
Kroll’s solution for lowering the number and amount of misconduct settlements? Fight every claim. “Talk to any officer, they want every single suit fought. Let it be thoroughly investigated [through the courts]. Do that for five to 10 years and you’ll see a fraction of these lawsuits being brought,” he said.
Kroll highlighted the Jamar Clark case as proof that reviews hold police officers accountable. Early this May, after declining to call a grand jury, the Hennepin County attorney released in detail the findings of a four-month investigation that found no evidence to charge either officer in the fatal shooting. The U.S. attorney also exonerated the officers, saying there was insufficient evidence to pursue a federal case.
A Minneapolis Police Department internal affairs investigation is ongoing, according to a news release from Mayor Betsy Hodge’s office.
Kroll asked, “In what other job do you have triple jeopardy?”
After a man was shot by Minneapolis police early on November 15, 2015, Black Lives Matters and others protested by marching from the Minneapolis Police 4th Precinct station to I-94, shutting down westbound traffic on the freeway on the evening of November 16.
City Council member Blong Yang represents Ward 5, where Jamar Clark was killed. “The police insurance amendment is a bad idea,” he said.
State law requires Minneapolis to indemnify city employees—though with exceptions. Plus, Yang said, the cost of private insurance would be prohibitively expensive for the city, likely costing significantly more than the $2 million that it currently pays annually to settle suits.
Yang anticipates less misconduct and more accountability when the city rolls out its body camera program and increases the police force.
“More officers will allow for a better response to 911 calls, to take the time to get out of their cars to talk to people instead of jumping from call to call,” Yang said.
Anthony Newby, executive director of Neighborhoods Organizing for Change, helped lead the 4th Precinct encampment along with Black Lives Matter and the NAACP. Newby’s group is a key organizer and signatory to Minnesota’s first-ever ‘United Black Legislative Agenda,’ which attacks longstanding racial disparities in the state and gauges priorities within its black communities.
Police liability insurance doesn’t appear on the agenda, but Newby supports the idea.
“I think the officer equivalent of malpractice insurance is an accountability lever that deserves to be tested at the very least,” he said.
But Newby acknowledges that it’s “a very heavy lift.”
“In this country, unlike other public servants, police have been allowed to create their own culture and narrative around what’s owed to them in terms of public money,” he said. “ I think that needs to be challenged. And ideas like liability insurance really challenge that.”
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