During a California Assembly select committee hearing on Friday, state lawmakers asked expert after expert how the state can better hold police accountable.
The lawmakers’ heads turned for one idea in particular: making police officers personally liable for their misconduct lawsuits, and requiring them, by law, to carry professional liability insurance — just like doctors and truck drivers. This way, said Deborah Ramirez, a professor at the Northeastern University School of Law, bad police officers could be “priced out of policing.”
“Why can’t we ensure police officers are like other professionals and require them to carry mandatory professional liability insurance?” she said.
She said that doctors carry liability insurance, and if they started drinking or using drugs on the job — or started operating on the wrong body parts — their insurance premiums would go up. And if they continued a pattern of malpractice, they would be “priced out of medicine.”
A neighbor of hers, who is a doctor, asked her: “I don’t understand why police officers with dangerous histories and indicators aren’t priced out of policing” as well.
In most cities, like San Francisco, police officers are indemnified by the city government if they are sued. That means if a civilian sues a police officer for on-duty misconduct and wins a settlement or a judgment in court, the city pays everything. These civil awards can total tens or hundreds of thousands of dollars, even millions.
Ramirez explained how her idea would work. First, she said, the state should prohibit municipalities from using taxpayer money to cover 100 percent of the costs of police misconduct lawsuits. Second, she said, the state should require police officers to carry professional liability insurance. The base premiums, she said, would be covered by the police department.
“But any increases due to risky behavior are paid by the officer,” she said.
“What do the insurance companies … do best?” Ramirez added. “They assess risk. They’d create risk assessment scorecards for the officers and find out and identify what everyone already knows. Who are the bad apples?”
The insurance companies would be one independent agency tracking police officer’s misconduct and “price them out” before it could turn problematic. The risk factors, she said, would include domestic violence restraining orders, which she said is a common indicator of problematic police officers. Others would be findings of misconduct and past lawsuits. If an officer seeks counseling or anger management, the premiums would go down, she said.
“If this system had been in place” earlier, “lives would have been saved,” she said. She cited Derek Chauvin, the Minneapolis Police officer who knelt on George Floyd’s neck for more than eight minutes, killing Floyd. Chauvin had numerous brutality complaints filed against him before he encountered Floyd.
Ramirez said the idea has not been implemented in full anywhere in the county. But a Colorado police-reform bill passed in June makes police personally on the hook for 5 percent, up to $25,000, for a settlement or judgment in a misconduct case. Soon after the law passed, Colorado’s Fraternal Order of Police followed by creating a plan with insurance companies. The policies’ premiums would rise and fall based on assessments of the police officers’ behavior.
California lawmakers were interested.
“It’s intriguing,” said Assemblyman Jordan Cunningham, R-San Luis Obispo. If lawmakers are going to examine whether they should prohibit how much taxpayers pay for police misconduct lawsuits, he said, “it may even be a necessity that we need to move police officers to an insurance-based model, or even require it.”
He asked Ramirez if the model has been studied. She said she’s written a couple of research papers about it. “It’s actually a very lucrative model,” she said, explaining that insurance companies make a lot of money on professional liability insurance in other professions “because everyone has to carry them and [the companies are] very good at figuring out how not to pay out, which is one reason it’s a good model.”
“They then become the watchdog,” she said.
But the union representatives at the hearing opposed the idea immediately.
David Mastagni, who represents the Police Officers Research Association of California — largest state police union — said the idea was “ill-advised” and “fatally flawed.”
He argued that police have a right to be indemnified under state law. He also argued that any “critical incident,” a high-stress situation that might require the use of force, is going to prompt a lawsuit.
“That’s just the fact,” he said, “regardless of whether or not the officer’s actions were justified or appropriate … the public entity is the deep pocket and the public entity is the one that the plaintiffs lawyers are going to be primarily seeking compensation from.”
An insurance mandate would also deter police, he said, “from rushing to the sound of the gun.”
James Touchstone, an attorney for the California Police Chiefs Association, said policing and the medical field are completely different and should not have the same requirements. “It is not comparable whatsoever, in my opinion, to doctors who have time to plan and make a surgical plan, examine a patient multiple times before their face to make a life or death situation,” he said.
The reactions from Mastagni and Touchstone likely means that any legislation that might establish the insurance would be fought or bargained over fiercely by the unions.
But Assemblyman Chad Mayes, I-San Bernardino, said Friday was the first he’d heard of the professional liability idea, and he seemed willing to research it more.
“I do think it’s worth exploring, and I think it’s also worth those who might be opposed to it to actually sit down at a table and kind of work through things — because the legislative process can be messy,” he said, reacting to the two law enforcement lawyers. “We need to look for the art of the possible and not just dismiss things outright.”
Other ideas that came out of the hearing included stripping bad police officers of their certifications to do police work in California, an idea that died in the legislature earlier this year but was reintroduced this month in the form of SB 2. On Friday, union leaders said they would support the idea in some form.
Legal scholars, meanwhile, said giving citizens greater power to sue police for misconduct and holding cities liable for that misconduct would deter bad behavior. San Francisco’s own Department of Police Accountability director, Paul Henderson, said more robust civilian oversight and data collection would be essential.
But it was the idea of insurance that captured the imagination of state legislators. “It’s an intriguing issue,” said Assemblyman Kevin McCarty, D-Sacramento. “As with everything else, the devil’s in the details.”