An Insurance-Based Typology of Police Misconduct
Not all police misconduct is the same, and different institutional regimes might manage different sorts of misconduct most effectively. This Article surveys the universe of police malfeasance from the perspective of an important but underappreciated regulatory regime: liability insurance. Nearly all but the very largest municipalities buy insurance that covers claims alleging police misconduct. In assuming the financial risk of bad police behavior, the insurers become motivated to prevent it. Criminal procedure scholarship almost entirely overlooks the salutary regulatory influence these insurers may have on police activity. Yet insurance is no panacea. Indeed, a principal aim of this Article is to probe the limits of the insurance mechanism—the places where the effects of insurance on policing are likely weak or even perverse. This exercise points us toward a typology of misconduct, along with a corresponding set of plausible approaches for reducing the occurrence of each of the types identified. In particular, the Article distinguishes varieties of police misconduct based on (1) the dollar-value of the legal claims to which they give rise and (2) the length of the delay between when the misconduct occurs and when a legal claim is typically filed. The typology suggests, among other things, that the insurance regime is a plausible surrogate for some governmental regulation of police violence but not, at present, of the sorts of misconduct that lead to wrongful convictions.
I. Introduction
TOPNot all police misconduct is the same, and different institutional regimes might combat different sorts of misconduct most effectively. This Article surveys the universe of police misconduct from the perspective of an important but underappreciated regulatory regime: liability insurance. Most small and mid-sized municipalities in the United States purchase insurance that covers a range of police misconduct claims, from improper service of process to outright assault and battery, discrimination, and other civil rights violations.1
“Municipality” and “police,” as used here, include both city- and county-level entities and law enforcement officers.
I describe the phenomenon of police “regulation-by-insurance” in detail in other work. See John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. (forthcoming 2017), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733783(https://perma.cc/2EC3-SBHE). For two of the very few other legal academic papers to touch on insurance, see Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63 UCLA L. Rev. 1144 (2016) [hereinafter Schwartz, How Governments Pay]; Joanna C. Schwartz, Who Can Police the Police?, 2016 U. Chi. Legal F. 437; see also Charles R. Epp, Making Rights Real 115–37 (2009) (studying insurance among numerous factors that might influence “legalized accountability” by police agencies); Candace McCoy, How Civil Rights Lawsuits Improve American Policing, in Holding Police Accountable 111, 112 (Candace McCoy ed., 2010) (asserting that “insurance companies [have] demanded that police improve their policies and practices in adherence to constitutional requirements and thus avoid monetary payouts to injured citizens”).
Yet insurance is no panacea. Indeed, a principal aim of this Article is to probe the limits of the insurance mechanism—the places where the effects of insurance on policing are likely weak or even perverse, suggesting a need for insurance reform or other, more familiar regulatory interventions. These include domains in which moral hazard—that is, the propensity of insurance to reduce the insured’s incentives to prevent harm—seems most likely to predominate. By laying these cases alongside those in which regulation-by-insurance appears to function well, I show how thinking about police misconduct through the lens of liability insurance points us toward a typology of misconduct, along with a corresponding set of plausible approaches for reducing the incidence of each of the types identified. My typology suggests, among other things, that the insurance regime is a plausible surrogate for some governmental regulation of police violence but not—at least not yet—of the sorts of misconduct that lead to wrongful convictions.
To construct my typology, I distinguish types of police misconduct along two dimensions. First, I consider the dollar value of the legal claims to which each type of misconduct typically gives rise.3
For a different typology that also sorts civil rights claims according to their dollar value, see Paul D. Reingold, Requiem for Section 1983, 3 Duke J. Const. L. & Pub. Pol’y 1, 13 (2008) (organizing claims by dollar value and substantive strength).
“Long-tail claims are those which are not brought (or if brought, not resolved) for some years after the action by the defendant that gives rise to the claim.” Kenneth S. Abraham, Environmental Liability and the Limits of Insurance, 88 Colum. L. Rev. 942, 964 n.69 (1988). In practice, legal claims lie on a spectrum, ordered by the length of their tail; the trait is continuous, not binary.
These two criteria—the size of a claim’s expected payout and the length of its tail—generate four categories of police misconduct. The Article’s structure is accordingly straightforward: In each of the four sections that follow, I describe one category of misconduct along with a corresponding set of potential solutions. I begin in Part II with high-dollar, short-tail claims. The archetype here is a claim that alleges the use of excessive force. When a police officer employs unlawful force, the harm he inflicts is often substantial (high-dollar)—especially where death results—and also immediately apparent and actionable (short-tail). Drawing on original qualitative research of the police liability insurance industry, I explain how insurers work to manage the problem of police violence and suggest why they may fare better in some regards than traditional sources of regulation.5
In my initial research for Rappaport, supra note 2, I conducted thirty-three semistructured telephone interviews, mostly with members of the industry who were high-ranking officials within their respective firms. I located my subjects using a “snowball sampling” technique. See, e.g., John Lofland et al., Analyzing Social Settings: A Guide to Qualitative Observation and Analysis 43 (4th ed. 2006) (discussing “snowball” or “chain-referral” sampling: “a method for generating a field sample of individuals possessing the characteristics of interest by asking initial contacts if they could name a few individuals with similar characteristics who might agree to be interviewed”). My interview subjects were geographically diverse, including representatives of firms in every time zone and consultants who travel the country. I followed up on some of these interviews with targeted questions via email or a quick additional telephone call, which I did not count toward the total thirty-three. I also attended the 2015 annual conferences of the Association of Governmental Risk Pools and the International Association of Chiefs of Police. For this Article—in particular for the research in Part III—I requested additional telephone interviews with the relevant experts who had been most helpful during the first round of interviews; I ended up speaking with eight of them. I ceased interviewing new subjects when responses became repetitious.
In Part III I turn to high-dollar, long-tail claims. Here I have in mind “wrongful conviction” claims filed by individuals who have been imprisoned and later exonerated of criminal wrongdoing. The average exoneree spends over thirteen years wrongfully incarcerated (long-tail). Damages for this sort of harm can be immense (high-dollar). Not all wrongful conviction claims allege police misconduct, but many do. And when they do, they typically fall within the standard police liability policy. Insurers, therefore, have a financial incentive to prevent the kinds of misconduct that lead to wrongful convictions. But the long tail creates complications that make the risk difficult for insurers to price and manage. The relative infrequency of the claims exacerbates these challenges. In this context, insurers may actually make things worse rather than better by creating (but not controlling) moral hazard. And because the rate of exonerations is rising,6
See sources cited infra note 76.
The third and fourth categories of police misconduct in my typology are largely—though not entirely—outside insurers’ purview. I therefore deal with them more quickly. The third category, addressed in Part IV, contains low-dollar, short-tail claims. This includes many run-of-the-mill violations of law, like an investigatory stop unjustified by reasonable suspicion or the failure to give Miranda warnings before custodial interrogation.7
See Terry v. Ohio, 392 U.S. 1 (1968); Miranda v. Arizona, 384 U.S. 436 (1966).
See John Rappaport, Second-Order Regulation of Law Enforcement, 103 Calif. L. Rev. 205 (2015).
The last category, the topic of Part V, involves low-dollar, long-tail claims. It is not immediately obvious what, if anything, belongs in this box. But I will make the case that one unique type of claim plausibly does, at least some of the time: a claim alleging racial profiling by the police. Under extant doctrine, absent a smoking gun, a colorable profiling claim must marshal statistical evidence from a broad sample of other cases. This creates, in many cases, a delay (i.e., a long tail) between the profiling and the potential lawsuit brought to challenge it—a delay that distinguishes these claims from mine-run (short-tail) constitutional violations. And here too, even a successful plaintiff is unlikely to recover much in damages (low-dollar). The unfortunate upshot, I think, is that neither civil-damages actions nor criminal litigation will work very well to combat racial profiling. Recourse to more traditional forms of regulation, like legislation and administrative rules, is therefore necessary. Criminal procedure doctrine might be re-fashioned to encourage this political regulation, I will suggest, but I do not think that doctrine alone can save the day.
Figure 1 pulls together the strands of the typology:
| Short-tail | |
| High-dollar | Use of force |
| Low-dollar | Terry; Miranda |
| Long-tail | |
| High-dollar | Wrongful convictions |
| Low-dollar | Racial profiling |
| High-dollar | Low-dollar | |
|---|---|---|
| Short-tail | Use of force | Terry; Miranda |
| Long-tail | Wrongful convictions | Racial profiling |
Figure 1
This model, of course, is only one of myriad schemes we could sketch to organize the universe of police misconduct. Those with different frameworks or objectives might demarcate categories along different dimensions. My approach is useful because it tells us something about what solutions are likely to gain traction on each type of misconduct. But it is not the only way to think about the topic.
Two caveats are necessary before proceeding. First, in my descriptive case—that is, in determining how to classify different types of police misconduct—I take legal doctrine on liability and damages as given. This is why I refer to claims as “high-dollar” and “low-dollar” rather than “high-value” and “low-value”: I mean to convey nothing about the normative value of different claims, only their dollar value under legal precedent. Second, I largely obscure the distinction among different types of insurance providers. As I explain elsewhere, although most municipalities purchase police liability insurance on the market, that market is segmented between commercial insurers and intergovernmental risk pools.9
A risk pool is a nonprofit, mission-driven organization formed by a group of local government entities, usually within one state, to finance a risk, typically by pooling or sharing that risk. The entities themselves ordinarily own and govern the pool. See Rappaport, supra note 2 (manuscript at 21–22); see generally Jason E. Doucette, Note, Wading in the Pool: Interlocal Cooperation in Municipal Insurance and the State Regulation of Public Entity Risk Sharing Pools—A Survey, 8 Conn. Ins. L.J. 533, 541–42 (2002).
See, e.g., Carol A. Archbold, Police Accountability, Risk Management, and Legal Advising 25 (2004) (concluding, based on survey results, that “risk management programs are still in the infancy stage of being embraced by police agencies”); Joanna C. Schwartz, Introspection Through Litigation, 90 Notre Dame L. Rev. 1055, 1095–1101 (2015) (reviewing evidence that few police departments have risk managers); Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1023 (2010) (finding that the largest police agencies only rarely learn from lawsuits filed against them or their officers).
My primary aim is to help organize and systematize our thinking about how to police the police. Even those who disagree with the specifics of my typology, I hope, will take away two thematic points: First, “police misconduct” is a capacious and variegated concept, and strategies that are necessary or effective to combat one kind of misconduct may not be necessary or effective to fight another. Second, one cannot fully understand how our legal system does and can deter police misconduct without understanding the role that liability insurers play in that endeavor, both for good and ill.
II. High-Dollar, Short-Tail
TOPFourth Amendment doctrine prohibits the police from employing excessive force in effecting a search or seizure.11
See, e.g., Graham v. Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471 U.S. 1 (1985).
See, e.g., Monica Davey, Chicago Pays $5 Million over Killing of Teenager, N.Y. Times, Apr. 16, 2015, at A15 (reporting $5 million settlement in death of Laquan McDonald); Richard Fausset, Settlement Reached in Shooting by Officer, N.Y. Times, Oct. 9, 2015, at A24 (reporting $6.5 million settlement in death of Walter Scott); Sheryl Gay Stolberg, University of Cincinnati to Pay $5 Million to Family in Killing by Police, N.Y. Times, Jan. 19, 2016, at A16 (reporting $4.85 million payout in death of Samuel DuBose, which “appears in line with other recent settlements of cases involving police officers”); Sheryl Gay Stolberg, Baltimore Announces $6.4 Million Settlement in the Death of Freddie Gray, N.Y. Times, Sept. 9, 2015, at A20 (reporting $6.4 million settlement in death of Freddie Gray, which “[l]egal specialists said . . . was in line with settlements for recent racially charged police misconduct cases,” including Eric Garner, whose estate settled for $5.9 million).
Because the financial stakes can be so high—and because the use of excessive force is typically not causally related to the discovery of incriminating evidence—use-of-force claims are usually litigated in civil suits rather than defensively through suppression motions in criminal cases.13
See Nancy Leong, Making Rights, 92 B.U. L. Rev. 405, 425 (2012) (finding that “98% of excessive force claims are litigated in the civil context”); see also id. at 441 (asserting that criminal “courts routinely ignore the use of force in analyzing the legality of an investigative stop”).
See, e.g., Nat’l Research Council of the Nat’l Acads., Fairness and Effectiveness in Policing 278–80 (Wesley Skogan & Kathleen Frydl eds., 2004); Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1626–34 (2012); Richard Emery & Ilann Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 Fordham Urb. L.J. 587 (2000); Diana Hassel, Living a Lie: The Cost of Qualified Immunity, 64 Mo. L. Rev. 123, 145 n.106 (1999); Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345 (2000); Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum. L. Rev. 247, 283–86 (1988); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). But see, e.g., Myriam E. Gilles, In Defense of Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 Ga. L. Rev. 845 (2001).
Leong, supra note 13, at 446; see also Rachel Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1127 (2008) (calling the doctrine “indeterminate” as well as “unprincipled”).
Leong, supra note 13, at 447.
I take no issue with the premise that excessive force doctrine is abstract and uncertain. But it does not follow that police officers have free rein. That conclusion follows only if we ignore other sources of police regulation, including (though certainly not limited to) regulation-by-insurance. The standard police liability policy, however, covers excessive-force claims,17
See, e.g., Law Enforcement Liability Coverage Form, Nat’l Cas. Co. 5–6, http://euclidps.com/2/wp-content /uploads/2014/05/Law_Enforcement_II_PE_PL_2_0802.pdf(https://perma.cc/E538-LB3C];see also Kenneth S. Abraham, Four Conceptions of Insurance, 161 U. Penn. L. Rev. 653, 656 (2013) (stating that “virtually all property-casualty insurance policies . . . are standard-forms used by most insurers”).
See Rappaport, supra note 2 (manuscript at 16–17); see also Omri Ben-Shahar & Kyle D. Logue, Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111 Mich. L. Rev. 197, 203–05 (2012).
G. Patrick Gallagher, Successful Police Risk Management 53 (2014); see also Robert J. Girod, Police Liability and Risk Management 163 (2014) (placing “[u]se of force and deadly force” atop a list of the “most common ‘actionable conduct’ involving civil rights liability” for police).
In Section A below, I describe the regulatory techniques insurers use to manage the risk of excessive force. In Section B, I discuss the interaction between regulation-by-insurance and more traditional modes of public regulation.
A. How Insurers Regulate the Use of Force
TOPAs I detail in other work, insurers use a variety of tools to try to tame police violence, including operational policy development and education, training, auditing, and risk-responsive underwriting and rating. Insurers invest substantially, for example, in improving covered agencies’ policies on the use of force. At the outset of the insurance relationship, the insurer typically requests copies of the agency’s policies.20
See, e.g., Police Professional Liability Insurance Application, Prof ’l Gov’tal Underwriters, Inc. (June 2014), http://www.pgui.com/App_Content /media/2014%20apps/DRWN%20PPL%201010%2006_14%20PGU%20Police%20New%20Bus%20Application.pdf(https://perma.cc/XLA2-36Z3).
See, e.g., Trident Risk Points: Operational Policies & Procedures: Use of Force Policy Elements, Trident Ins. Servs. (July 2012), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/9a5e44de9e07465726bcb14894240b67ba9c4565/5PLYTFCP9D5H/Trident-LEL-Use-of-Force-Policy-Elements-2012.pdf(https://perma.cc/2VCJ-QJAW];see also Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Conviction Law, 2005 Wis. L. Rev. 35, 107 (explaining that municipal liability “can be premised on a police department’s deviation from national police practices”).
See Focus On: Police—Excessive Use of Force, Munich Re (May 2015), https://www.munichre.com/site/mram-mobile/get /documents_E876514504/mram/assetpool.mr_america/PDFs/3_Publications/Research_Spotlight /FOCUS%20ON_Excess-Force.pdf(https://perma.cc/4LW9-T4S6];Trident Risk Points: Operational Policies & Procedures: Suggested Controls for Electronic Stun Weapons, Trident Ins. Servs. (July 2012), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/dad1345ec51a64376baf01f33f257328aa66bfd5/G5V9I05T5956/Trident-LEL-Electronic-Stun-Weapon-Policy-2012.pdf(https://perma.cc/SA9W-DU3M];Trident Ins. Servs., supra note 21; see also The Use-of-Force Continuum, Nat’l Inst. of Justice, Office of Justice Programs (Aug. 4, 2009), http://www.nij.gov/topics/law-enforcement /officer-safety/use-of-force/Pages/continuum.aspx[perma.cc/L2M3-S8LK). A recent report by the Police Executive Research Forum challenges the continuum’s status as a “best practice,” arguing that the continuum can encourage officers to escalate encounters and that “there are more effective ways to respond to many threats than through a use-of-force continuum.” Police Exec. Research Forum, Guiding Principles on Use of Force 19–20 (2016).
See, e.g., Stephen A. Bishopp et al., An Examination of the Effect of a Policy Change on Police Use of TASERs, 26 Crim. J. Pol’y Rev. 727 (2015) (electronic stun weapons); James J. Fyfe, Police Use of Deadly Force: Research and Reform, 5 Just. Q. 165 (1988) (firearms).
See, e.g., Munich Re, supra note 22; Law Enforcement Training Videos, Ind. Mun. Ins. Program, http://www.indianamip.com/law_enforcement.html(https://perma.cc/5JKX-XUEG](last visited Aug. 31, 2015) (listing dozens of training videos covering topics such as “Straight Baton Techniques,” “Line Officer Tactical Shotgun,” and “Basic and Power Handcuffing Techniques”); Telephone Interview with Consultant A (Aug. 16, 2014) (describing having conducted, on behalf of insurers, “hands-on” training on use of force, transportation of prisoners, and other related topics).
Risk Management, Liability Insurance, and CALEA Accreditation, CALEA, http://www.calea.org /content /risk-management-liability-insurance-and-calea-accreditation(https://perma.cc/UW7A-3VRU](last visited Aug. 31, 2015) (maintaining list of “liability insurance providers known to CALEA to offer some type of financial incentive to CALEA accredited agencies”); Ileana Garcia, Slidell Police Accreditation Keeps the Department’s Insurance Rate Low, Slidell Sentry-News, reprinted in CALEA Update Mag., Feb. 2001, http://www.calea.org /calea-update-magazine/issue-75/accreditation-works/slidell-police-accreditation-keeps-departments-in(https://perma.cc/H43T-YXMS).
See Standards Titles, CALEA, http://www.calea.org /content /standards-titles[perma.cc/D2VM-9ZT8](last visited Nov. 30, 2015) (listing standards); Law Enforcement Program: The Standards, CALEA, http://www.calea.org /content /law-enforcement-program-standards(http://perma.cc/JR8C-3JZM](last visited Nov. 30, 2015) (requiring compliance with standards); Law Enforcement Program: Process, CALEA, http://www.calea.org /content /law-enforcement-program-process(http://perma.cc/QJ84-ARP5](last visited Nov. 30, 2015) (requiring continued compliance and reaccreditation).
Importantly, insurers’ efforts extend well beyond the Fourth Amendment’s ambit into an array of extra-legal considerations that likely affect the frequency and severity of use-of-force events. Consider four brief examples. First, insurers educate officers on managing the significant stresses of the job.27
E.g., Telephone Interview with Risk Pool D (July 6, 2015).
See, e.g., Daniel Cruse & Jesse Rubin, Determinants of Police Behavior 5 (1973) (reporting, based on field study, that “the amount of stress seems to have a good deal of effect on the behavior of the officer”); Gail A. Goolkasian et al., Coping With Police Stress 10 (1986) (reporting findings that stress can negatively affect work performance, though noting studies’ limitations); Ronald J. Burke & Aslaug Mikkelsen, Burnout, Job Stress and Attitudes Towards the Use of Force by Norwegian Police Officers, 28 Policing Int’l J. Police Strats. & Mgmt. 269, 269–72 (2005) (summarizing studies finding that chronic work stress causes burnout, which is positively and significantly related to the use of force); Nicolien Kop & Martin C. Euwema, Occupational Stress and the Use of Force by Dutch Police Officers, 28 Crim. Just. & Behav. 631 (2001) (similar); Manny Fernandez, Officer Was Under Stress When He Arrived at Texas Pool Party, Lawyer Says, N.Y. Times, June 11, 2015, at A15 (describing lawyer’s assertion that McKinney, Texas, police officer who was videotaped tackling a black teenager in a bikini outside a pool party was under stress after responding to two earlier calls involving a suicide and attempted suicide); Mark Bond, The Impact of Stress and Fatigue on Law Enforcement Officers and Steps to Control It, In Public Safety (Feb. 24, 2014), http://inpublicsafety.com/2014/02/the-impact-of-stress-and-fatigue-on-law-enforcement-officers-and-steps-to-control-it(https://perma.cc/L8ZS-VBLN](asserting that officer stress can lead to fatigue, which in turn can lead to misconduct and “inappropriate reactions to a situation”).
See, e.g., Trident Risk Points: Operational Policies & Procedures: Law Enforcement Employment Hiring Policy, Trident Ins. Servs. (Sept. 2012), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/74ab995451582b436242abc67f5252a8f9e34329/795717IY6X5I/Trident-Employment-Hiring-Program-2012.pdf(https://perma.cc/2P9J-PQAM). The research on the benefits of psychological screening of officer candidates is mixed. See, e.g., Michael G. Aamodt, Predicting Law Enforcement Officer Performance with Personality Inventories, in Personality Assessment in Police Psychology 229, 238–40 (Peter A. Weiss ed., 2010) (reporting, based on meta-analysis of 200 studies, that some aspects of certain personality tests do a reasonable job of predicting officer performance, including disciplinary problems, but many do not); Robert E. Cochrane et al., Psychological Testing and the Selection of Police Officers: A National Survey, 30 Crim. Just. & Behav. 511, 515 (2003) (collecting sources that have “demonstrated the usefulness of personality measures in predicting job performance” of police officers); Candice Bernd, Evaluating Police Psychology: Who Passes the Test?, Truthout (Feb. 20, 2015, 9:25 AM), http://www.truth-out.org /news/item/29191-evaluating-police-psychology-who-passes-the-test(http://perma.cc/YXM7-TFD6](asserting that, “[w]hen departments forgo psychological screenings, the result is often violence,” but also highlighting the lack of standardization and sophistication of screening exams).
Ken Wallentine, Vice President & Senior Legal Advisor, Lexipol, Body Worn Cameras: Risk and Reward (Oct. 6, 2015). Wallentine cited studies from Rialto, California, and Denver, Colorado. See Barak Ariel et al., The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial, 31 J. Quant. Criminology 509 (2015); Cole Zercoe, Body Camera Study: Denver Police See Drop in Arrests, UOF Complaints, PoliceOne (Sept. 4, 2015), http://www.policeone.com/police-products/body-cameras/articles/9485301-Body-camera-study-Denver-police-see-drop-in-arrests-UOF-complaints/(https://perma.cc /ZD3X-QETH];see also Munich Re, supra note 22 (“[P]olice departments are encouraged to purchase body cameras, provide training and set standards for their use.”); The Effect of Body Worn Cameras & Police Use of Force, Trident Ins. Servs. (Feb. 2015), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/d94acf91189467168892daca4ba90de76bc8a263/D6L33YO488Y0/Your_Risk_Control_Resource_-_Feb15.pdf(https://perma.cc/33HQ-LVYG](“[B]ody-worn cameras appear to be a potentially valuable tool in reducing police use of force and related incidents.”).
Munich Re, supra note 22.
Insurers also help police departments train their officers by supplying materials, funding training programs, or even purchasing costly training equipment. Especially relevant here, some insurers subsidize expensive “virtual reality” training on use-of-force simulators.32
See, e.g., Law Enforcement Training Solutions, Meggitt Training Sys., http://meggitttrainingsystems.com/Law-Enforcement(https://perma.cc/2M6B-4F76](last visited Aug. 31, 2015); VirTra, http://www.virtra.com/(https://perma.cc/3DKA-Q4ZK](last visited Aug. 31, 2015); Milo Range, http://www.milorange.com(https://perma.cc/UQ35-KHNN](last visited Aug. 31, 2015).
Craig Bennell & Natalie J. Jones, Can. Police Research Ctr., The Effectiveness of Use of Force Simulation Training 8 (2005), http://www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng /cn000032136920-eng.pdf(https://perma.cc/P35H-NGY6).
Id.
Id. at 6; see also Jennifer Armstrong et al., Monitoring the Impact of Scenario-Based Use-of-Force Simulations on Police Heart Rate: Evaluating the Royal Canadian Mounted Police Skills Refresher Program, 15 W. Criminology Rev. 51 (2014); Evelyn-Rose Saus et al., The Effect of Brief Situational Awareness Training in a Police Shooting Simulator: An Experimental Study, 18 Military Psych. S3 (2006).
Insurers also facilitate training about how not to use force. Another presentation at the Association of Governmental Risk Pools conference focused on using mediation and alternative dispute resolution techniques on the policing beat.36
William Micklus, Assoc. Dir., Upper Midwest Cmty. Policing Inst. & Jeffrey Range, Senior Practitioner, Resologics, Dispute Resolution: Skills Training for Law Enforcement (Oct. 7, 2015).
See, e.g., Training Calendar, Wash. Cities Ins. Auth., http://www.wciapool.org /education-training /calendar(https://perma.cc/6QWJ-F4NE](last visited Nov. 30, 2015); Featured Training Notice, Cities & Vills. Mut. Ins. Co. (Mar. 26, 2015), http://www.cvmic.com/featured-training-notice/(https://perma.cc/DQ6E-NEJP).
Munich Re, supra note 22.
One ubiquitous challenge in policing the police is ensuring continued compliance with departmental policies. Adopting good policies and procedures, that is, and training on those policies when officers join the force, may get a department off to the right start, but proper maintenance is essential.39
See, e.g., Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453 (2004) (discussing the separation between formal departmental policies and informal de facto norms); Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department “Pattern or Practice” Suits in Context, 22 St. Louis U. Pub. L. Rev. 3, 45 (2003) (disaggregating “primary compliance,” which “involves the development of a formal policy on a particular aspect of police operations”; “secondary compliance,” which “involves evidence that the department has incorporated the policy into training and supervision”; and “operational compliance,” which “involves evidence that officers comply with the policy in their routine activities”).
See supra note 24.
Telephone Interview with Commercial Insurer A (July 20, 2015) (every three years); Telephone Interview with Risk Pool A (Sept. 2, 2014) (annual); Telephone Interview with Risk Pool B (Sept. 2, 2014) (semi-annual). Some insurers require online updates from agencies in between audits or encourage self-audits in addition. Telephone Interview with Risk Pool B, supra (requires periodic online updates); Trident Risk Points: Operational Policies & Procedures: Monitoring Compliance with Law Enforcement Manual, Trident Ins. Servs. (July 2012), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/1ff185e22af3a5c38781aa76ee68fcccad4ee5e6/IQJ40V3Z1A83/Trident-LEL-Compliance_with-Manual-2012.pdf(https://perma.cc/G5FS-XPR8](providing guidelines for self-audits).
Telephone Interview with Risk Pool A, supra note 41; Telephone Interview with Consultant B (Aug. 27, 2014).
Telephone Interview with Risk Pool A, supra note 41; Telephone Interview with Risk Pool C (June 29, 2015).
Telephone Interview with Commercial Insurer A, supra note 41; Telephone Interview with Commercial Insurer D (Oct. 13, 2015); Telephone Interview with Risk Pool A, supra note 41; Telephone Interview with Risk Pool D, supra note 27; Telephone Interview with Consultant A, supra note 24; Telephone Interview with Consultant C (Aug. 20, 2014).
See, e.g., Samuel Walker & Carol A. Archbold, The New World of Police Accountability 137–77 (2d ed. 2014); Armacost, supra note 39, at 459–60; Samuel Walker et al., Responding to the Problem Officer: A National Study of Early Warning Systems 2.4–2.6 (2000), https://www.ncjrs.gov/pdffiles1/nij/grants/184510.pdf(https://perma.cc/EXE6-X4TN).
None of what I’ve said so far, importantly, addresses whether municipalities listen to their insurers—whether they actually do what insurers say they ought to do. The answer, generally speaking, seems to be yes.46
For far more detail on this topic, see Rappaport, supra note 2 (manuscript at 50–55, 57–59).
See, e.g., Alex Green, Niota Officials Tied to Beating Fired; They Say Insurance Company Forced the Action, Times Free Press (Chattanooga), Aug. 24, 2013 (quoting mayor’s report that city’s coverage would have been dropped if two officers involved in misconduct had been allowed back on duty); Rutledge Mayor “Had No Choice” in Firing: Police Chief Refused to Resign; City at Risk of Losing Insurance, Knoxville News-Sentinel, Mar. 23, 2010 (reporting mayor’s assertion he “‘had no choice’” but to fire a police chief accused of misconduct because “the city was at risk of losing its liability insurance” if the chief remained (quoting Mayor Danny Turley)); see also Rob Karwath, Calumet City Will Lose Police Liability Insurance, Chi. Trib., Mar. 29, 1988 (reporting council member’s comment that city’s insurance cancellation was “the final argument for the mayor to pick a new police chief from outside the department” when the interim chief retired).
See, e.g., Schwartz, How Governments Pay, supra note 2, at 1190–91 & nn.165–71 (collecting four examples of police departments that closed due to premium increases or termination of coverage); see also George J. Church, Sorry, Your Policy Is Canceled, Time, Mar. 24, 1986, at 16, 17, 18 (reporting that police patrols were suspended in two towns and five counties closed their jails due to lack of coverage); Tyler Jett, City of Niota, Tenn., Shutting Down. Again., Times Free Press (Chattanooga), June 19, 2013 (reporting that the city’s “police department is closed” after its insurer pulled coverage); cf. Liability Insurance in Crisis, N.Y. Times, Mar. 4, 1986, at A26 (reporting that “police in West Orange, N.J., had to stop patrolling in cars they could no longer insure”).
According to one expert with several decades of experience in the industry, municipal liability insurers are more heavily focused on policing now than at any time since the early 1990s. The Rodney King beating in 1991, this expert said, had “ripple effects” throughout the industry. Insurers sought to ensure that police agencies had adequate policies and procedures on the use of force and related subjects. After a while, though, attention waned as other sources of municipal liability captured insurers’ interest. Now, after the recent wave of highly publicized officer-involved deaths, insurers find themselves “back in the soup.” Many insurers, moreover, now recognize that the problems with police go “beyond policies and procedures”; in order to reduce misconduct, insurers—and we, as a society—“need to find the root cause.”49
Telephone Interview with Commercial Insurer B (July 24, 2015); see also Telephone Interview with Commercial Broker A (July 22, 2015) (agreeing that underwriters have become more concerned with police liability since Ferguson); Roberto Ceniceros, Scandals Can Influence Police Liability Coverage, Bus. Ins. (June 5, 2000), http://www.businessinsurance.com/article/20000604/ISSUE01/10002637/scandals-can-influence-police-liability-coverage(https://perma.cc/26HY-XAF5](discussing effect of police scandals on rates and coverage nationwide); Zusha Elinson & Dan Frosch, Cost of Police-Misconduct Cases Soars in Big U.S. Cities; Data Show Rising Payouts for Police-Misconduct Settlements and Court Judgments, Wall St. J., July 15, 2015 (“[I]nsurers and lawyers who defend police say current scrutiny of law enforcement is broadly affecting the resolution of lawsuits.”).
B. Private Regulation, Public Regulation
TOPMeanwhile, politicians, too, have considered how to respond to recent police violence. According to the National Conference of State Legislatures, in the year 2015 alone, twenty-four state legislatures considered bills to address investigatory procedures for officer-involved deaths.50
Law Enforcement Overview, Nat’l Conference of State Legislatures (May 29, 2015), http://www.ncsl.org /research/civil-and-criminal-justice/law-enforcement.aspx(https://perma.cc/EP3X-EKD5).
These are positive developments that I do not wish to disparage in any way. They may be crucial for regulating self-insured departments that do not take loss prevention seriously, which likely describes many major metropolitan agencies, including some that are (rightly) under the microscope today. And they may serve retributive and expressive purposes necessary to rebuild community trust in the police. Yet, from a regulatory (i.e., deterrence) perspective, I am skeptical about their capacity to improve meaningfully upon what insurers are already doing.51
The prospect of criminal punishment may discourage some egregious misconduct, but I am inclined to agree with Paul Chevigny that “[c]riminal law is . . . not a system of ‘discipline’ for police misconduct; it defines the outer limits of what is permissible in society” and is at best a “patchy deterrent.” See Paul Chevigny, Edge of the Knife 98–101 (1995).
See generally Ben-Shahar & Logue, supra note 18.
Instead, we might devote public efforts to supporting the regulatory function insurers provide. We could consider, for example, mandating market insurance for municipalities that cannot demonstrate a good-faith commitment to loss prevention. We might also examine whether there are legal threats that cause insurers to shy away from more intensive regulation. Although, as I mentioned above, some insurers have successfully pressured agencies to terminate problem officers, others I interviewed expressed fear that doing so might subject them to liability, or at least to legal action, under employment, labor, or contract law.53
See, e.g., Telephone Interview with Risk Pool D, supra note 27.
Cf. Kyle D. Logue, Encouraging Insurers to Regulate: The Role (If Any) for Tort Law, 5 U.C. Irvine L. Rev. 1355 (2015).
III. High-Dollar, Long-Tail
TOPAn individual who is wrongfully convicted, incarcerated, and later exonerated and freed can generally sue for damages for the time spent unjustly imprisoned.55
“Generally” is a meaningful modifier here. See Garrett, supra note 21, at 54; see generally Michael Avery, Obstacles to Litigating Civil Claims for Wrongful Conviction: An Overview, 18 B.U. Pub. Int. L.J. 439 (2009).
See Innocence Project, Making Up for Lost Time: What the Wrongfully Convicted Endure and How To Provide Fair Compensation 4, http://www.innocenceproject.org /files/imported/innocence_project_compensation_report-6.pdf(https://perma.cc/CS7U-MJMW).
Garrett, supra note 21, at 43 n.30, 44 n.32 (collecting cases); see also Mark Iris, Your Tax Dollars at Work! Chicago Police Lawsuit Payments: How Much, and for What?, 2 Va. J. Crim. L. 25, 44–45 (2014) (reporting average payouts of $2.4 and 3.2 million per case for Chicago police defendants in wrongful conviction cases between 2006 and 2012 in federal and state courts, respectively). Compensation is all over the map, however, and in some cases is grievously lacking. Compare Martin G. Hacala, Insights: Wrongful Convictions: What Governmental Risk Pools, and the Public Entities They Insure, Need to Know, Genesis, at 5 (May 2012), https://www.genesisinsurance.com/assets/pdfs/In%20the%20News/Insights20125-2.pdf(https://perma.cc/P9KB-GNT4](“[D]amages awarded in wrongful conviction claims vary significantly. Indeed, it isn’t unheard of for the wrongfully convicted to recover nothing or a trivial amount.”), with id. at 6 (collecting cases sustaining damages in the millions).
Hacala, supra note 57, at 3. A prisoner may not sue for wrongful conviction until his conviction is reversed, expunged, or otherwise invalidated. See Heck v. Humphrey, 512 U.S. 477 (1994).
See Garrett, supra note 21, at 42 (“[I]n a surprisingly large number of cases, wrongful convictions were caused by police misconduct.”); see generally Russell Covey, Police Misconduct as a Cause of Wrongful Convictions, 90 Wash. U. L. Rev. 1133 (2013). According to a 1999 study, the figure is fifty percent. Jim Dwyer et al., Actual Innocence 246 (2003). Other common causes of wrongful convictions include prosecutorial misconduct and deficient defense counsel. See, e.g., James R. Acker & Allison D. Redlich, Wrongful Conviction: Law, Science, and Policy (2011); Jon B. Gould et al., Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice (2012).
Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 75–91 (2008); see generally Brandon L. Garrett, Convicting the Innocent (2011).
See, e.g., Nat’l Cas. Co., supra note 17, at 5–6 (covering “[f]alse arrest, detention or imprisonment, or malicious prosecution” and “[v]iolation of civil rights protected under 42 USC 1981 et sequential or State Law”); Telephone Interview No. 2 with Risk Pool A (Oct. 5, 2015); Telephone Interview No. 2 with Risk Pool B (Oct. 5, 2015).
One might think, therefore, that insurers would be highly attuned to the risk of wrongful convictions and, as with the use of force, would closely regulate the agencies they insure in an effort to reduce that risk. But the long tail of most wrongful conviction claims—the delay between when the wrongful conduct occurred and when the claim is filed—makes the claims an insurance nightmare.62
See Hacala, supra note 57, at 2 (“[E]xoneration . . . presents a significant legal and financial challenge for public entities and the [entities] that insure them.”).
A. The Challenges of Insuring Long-Tail Risks
TOPInsurance theory suggests several reasons that long-tail risks may strain insurers’ regulatory capabilities. The problem worsens when, as here, the risks are also low in probability but highly consequential. Sections 1 and 2 address these respective points. Section 3 reports qualitative empirical findings that tend to substantiate the challenges theory predicts.
1. The basic theory.
A long tail of liability creates at least three distinct problems for insurers. First, the long tail heightens the degree of correlation (i.e., statistical dependence) among the covered risks. All liability insurance, at least in theory, involves problems of correlated risk “if the rules under which liability is determined and damages are assessed change over the life of the insurance contracts.”63
Neil A. Doherty & Georges Dionne, Insurance with Undiversifiable Risk: Contract Structure and Organizational Form of Insurance Firms, 6 J. Risk & Uncertainty 187, 188 (1993).
Id. at 198.
Id. For an excellent clarifying discussion that classifies types of “liability developments risk,” see Tom Baker, Insuring Liability Risks, 29 Geneva Papers on Risk & Ins. 128 (2004).
See Ceniceros, supra note 49.
See Howard C. Kunreuther et al., Insurance and Behavioral Economics 83–85 (2013); S. Hun Seog, The Economics of Risk and Insurance 47 (2010).
See Ben-Shahar & Logue, supra note 18, at 215.
Second, the long tail can create incentives that lead insurers to regulate too little. “Because of turnover, risk managers may have a much shorter time horizon than the firm. Current decisionmakers may reap no reward within the organization for reducing remote risks and may even be penalized for expending current funds for doing so.”69
Martin T. Katzman, Pollution Liability Insurance and Catastrophic Environmental Risk, 55 J. Risk & Ins. 75, 83 (1988).
Kenneth S. Abraham, Distributing Risk 48 (1986); cf. Ben-Shahar & Logue, supra note 18, at 230 (“Some of the risks that insurers regulate materialize into harms far into the future, which means that insurers’ efforts to reduce such risks will largely benefit future insurers.”).
Ben-Shahar & Logue, supra note 18, at 230.
Third, and maybe most important, the long tail creates uncertainty about the number and magnitude of wrongful conviction claims insurers should expect. Here I mean to reference the distinction insurance theorists draw between risk and uncertainty. Risk refers to “a probability that can be estimated, whether on the basis of observed frequency or of theory.”72
Richard A. Posner, Catastrophe 171–72 (2004).
Id. at 172.
Nate Silver, The Signal and the Noise 29 (2012). The distinction traces back to Frank H. Knight, Risk, Uncertainty, and Profit 197–232 (1921); see also Cass R. Sunstein, Worst-Case Scenarios 147 (2007) (describing uncertainty as a situation “where outcomes can be identified but no probabilities can be assigned” and risk as “where outcomes can be identified and probabilities assigned to various outcomes”); id. at 159–62 (defending the distinction). But see Milton Friedman, Price Theory 282 (1976) (challenging the distinction’s validity).
Abraham, supra note 70, at 47.
2. The additional difficulty of low-probability, high-consequence risks.
It seems, moreover, that the frequency of future wrongful conviction claims is not particularly amenable to prediction, largely because it is too low.76
Samuel R. Gross & Michael Shaffer, Nat’l Registry of Exonerations, Exonerations in the United States, 1989–2012, at 3 (2012), http://www.law.umich.edu/special/exoneration/Documents/exonerations_us_1989_2012_full_report.pdf(https://perma.cc/97NR-SVK7](“[E]ven 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails.”). The rate of exonerations does seem to be increasing, however. See, e.g., Nat’l Registry of Exonerations, The First 1,600 Exonerations 5 (2015), http://www.law.umich.edu/special/exoneration/Documents/1600_Exonerations.pdf(https://perma.cc/AT36-S4WG];Sam R. Gross et al., Exonerations in the United States: 1989 through 2003, 95 J. Crim. L. & Criminology 523, 527 (2005). Perhaps this is not surprising, given that the errors that lead to wrongful convictions are typically systemic, not idiosyncratic. See, e.g., Garrett, supra note 60, at 274; Jennifer E. Laurin, Still Convicting the Innocent, 90 Tex. L. Rev. 1473, 1475 (2012) (book review).
Sunstein, supra note 74, at 21–24. There is a substantial related literature finding that individuals purchase too little insurance against low-probability events. See, e.g., Mark J. Browne, Behavioral Bias and the Demand for Bicycle and Flood Insurance, 50 J. Risk & Uncertainty 141 (2015); Philip T. Ganderton et al., Buying Insurance for Disaster-Type Risks: Experimental Evidence, 20 J. Risk & Uncertainty 271 (2000); Paul Schoemaker & Howard C. Kunreuther, An Experimental Study of Insurance Decisions, 46 J. Risk & Ins. 603 (1979); Paul Slovic et al., Preference for Insuring Against Probable Small Losses: Insurance Implications, 44 J. Risk & Ins. 237 (1977); see also Gary H. McClelland et al., Insurance for Low-Probability Hazards: A Bimodal Response to Unlikely Events, 7 J. Risk & Uncertainty 95 (1993) (finding extreme bimodality in willingness to pay). But see Susan K. Laury et al., Insurance Decisions for Low-Probability Losses, 39 J. Risk & Uncertainty 17 (2009).
Hacala, supra note 57, at 9.
All this uncertainty gums up the insurance machine, for insurance deals far better with risk than uncertainty. Insurers faced with uncertainty cannot accurately price coverage. “[D]espite high levels of expertise and strong incentives to make logical decisions, [insurance managers] make errors with respect to situations where there is uncertainty or ambiguous information regarding the low probability risks they face. When insurers have limited data and limited past experience with extreme events, there is a tendency for them to engage in intuitive thinking when determining what coverage to offer against specific risks and how much to charge.”79
Howard C. Kunreuther & Mark V. Pauly, Behavioral Economics and Insurance: Principles and Solutions, in Research Handbook on the Economics of Insurance Law 15, 21–23 (Daniel Schwarcz & Peter Siegelman eds., 2015); see Kunreuther et al., supra note 67, at 7 (“Insurers . . . misunderstand how to predict rare events and therefore sometimes make decisions that appear to ignore risks altogether. Alternatively, they sometimes fixate on the magnitude of recent losses and claims without weighting these figures by an estimate of the likelihood of another catastrophe occurring.”); Katzman, supra note 69, at 85. This is not to say there are no methods to predict extreme events. See, e.g., Robert Lund, Revenge of the White Swan, 61 Am. Statistician 189, 190 (2007) (discussing extreme value theory, “the statistician’s bible for quantifying rare events”).
Hacala, supra note 57, at 9.
Id.
Nor can insurers be confident about what loss-prevention measures they can reasonably insist upon. As Kenneth Abraham explains, “the threat of uncertain liability can promote optimal safety levels only by mere chance, because risk-optimizing behavior requires cost-benefit calculations that are necessarily impossible in the face of great uncertainty.”82
Abraham, supra note 4, at 944; see also Abraham, supra note 70, at 51 (“[T]he capacity of any system of liability to promote optimal deterrence depends on how predictable liability is.”). Compare Richard Lempert, Low Probability/High Consequence Events: Dilemmas of Damage Compensation, 58 DePaul L. Rev. 357, 385 (2009) (listing reasons, including “psychological denial,” that “make it almost inevitable that insufficient precaution will be taken” against low-probability, high-consequence events), and Katzman, supra note 69, at 83 (“Given a ‘finite reservoir of concern,’ risk managers may pay little attention to low-probability risks, no matter how severe the potential consequences.”), with Eric A. Posner, Probability Errors: Some Positive and Normative Implications for Tort and Contract Law, 11 Sup. Ct. Econ. Rev. 125, 126 (2004) (showing that a “person who discounts remote risks might take too much care, rather than too little”).
Abraham, supra note 70, at 965.
Telephone Interview with Commercial Insurer C (Oct. 26, 2015). I do not mean to suggest there is nothing insurers can do to improve their position vis-à-vis claims arising from actions taken years ago. Some insurers have gone back to shore up their reserves for past coverage years. Id. But this does not reduce the likelihood that harm from past actions will manifest.
3. The empirics.
My own empirical research, conducted for this Article, largely confirms what theory predicts. Exploiting contacts made while conducting a larger, related empirical project, I interviewed eight insurers—including both commercial firms and intergovernmental risk pools—about how they price and manage the risk of wrongful convictions.85
For more on methodology, see supra note 5.
See, e.g., Telephone Interview No. 2 with Risk Pool A, supra note 61 (explaining that the pool had never priced the risk or looked at specific loss-prevention measures because it had never considered the risk, which it believed more relevant in big cities and in the South).
Id.; Telephone Interview No. 2 with Commercial Insurer B (Oct. 1, 2015) (speculating that wrongful convictions are not a significant issue for pools his company reinsures because the pools’ members are “puny munis”). But see Telephone Interview with Commercial Insurer D, supra note 44 (reinsures small pools that have encountered wrongful conviction claims).
A few insurers emphasized that, although they take no steps to address wrongful conviction risks in particular, their general underwriting and loss-prevention practices should sufficiently control the exposure. One stressed the importance of accreditation by agencies that impose continuing education standards and check for well-maintained policies and procedures.88
Telephone Interview with Commercial Insurer D, supra note 44.
Telephone Interview No. 2 with Risk Pool C (Sept. 28, 2015); see also Telephone Interview with Risk Pool E (Oct. 7, 2015) (reporting that wrongful convictions are “just coming onto the radar,” and that an industry conference, last year for the first time, included a session on wrongful convictions, focusing on the duty to disclose exculpatory evidence).
Telephone Interview No. 2 with Risk Pool C, supra note 89; see also Telephone Interview No. 2 with Risk Pool A, supra note 61 (stressing “integrity first in personal and professional behavior”).
Telephone Interview No. 2 with Risk Pool C, supra note 89.
Id. This expert’s admission calls to mind the terrorism context, in which insurers have been similarly unable to gauge risk levels accurately. See Michelle E. Boardman, Known Unknowns: The Illusion of Terrorism Insurance, 93 Geo. L.J. 783, 815–20 (2005) (arguing that terrorism risk is incalculable largely because the data are too scarce and disparate; that insurers are “guessing” on prices, which vary wildly; and that pricing has “not been very scientific” because “underwriters are relying on their experience and instincts”).
My research therefore suggests that, to the extent insurers attempt to price the risk of wrongful convictions, their efforts are crude, at best. This means that, in this context—in contrast to what I said in Part II about the use of force—insurers may be making matters worse rather than better. “Failure to risk-rate premiums,” it is well known, can “create[ ] moral hazard.”93
Kunreuther & Pauly, supra note 79, at 24.
See Boardman, supra note 92, at 836–42 (discussing the efficiency costs of inaccurate pricing, which sends inaccurate signals about the risk and cost of harm). In theory, insurers could be (unwittingly) charging too much, rather than too little, to cover the risk of wrongful convictions, leading insured municipalities to overinvest in loss prevention. I think this is unlikely, however, and I heard no hint of it during any of my conversations with industry experts.
What is more, if experience in analogous domains is any guide, insurers’ ostrich-like approach to covering wrongful conviction claims may mask fragility and volatility in this corner of the market, which a run of wrongful convictions may lay bare. “After a severe loss, insurers may withdraw from covering this risk because they focus on the losses from a worst-case scenario without adequately reflecting on the [low] likelihood of this event occurring in the future.”95
Kunreuther & Pauly, supra note 79, at 19; see Cass R. Sunstein, Terrorism and Probability Neglect, 26 J. Risk & Uncertainty 121 (2003).
Kunreuther et al., supra note 67, at 221; accord Boardman, supra note 92, at 786–87.
Kunreuther et al., supra note 67, at 221.
See Benjamin J. Richardson, Mandating Environmental Liability Insurance, 12 Duke Envt’l L. & Pol’y F. 293 (2002).
Telephone Interview with Commercial Insurer C, supra note 84; Telephone Interview with Commercial Insurer D, supra note 44. Liability insurance tends to follow an “underwriting cycle” in which “premiums and restrictions on coverage . . . rise and fall as insurers tighten their standards in response to the loss of capital”—called a “hard market”—“or, alternately, loosen their standards in order to maintain or grow market share when new capital enters the market”—a “soft market.” See Tom Baker & Sean J. Griffith, Ensuring Corporate Misconduct: How Liability Insurance Undermines Shareholder Litigation 55 (2010).
B. Responding to Insurance Shortfalls
TOPIf what I have said is correct, a two-headed reform agenda is in order. First, we should seek ways to shore up the insurance function, both to improve insurers’ capacity to regulate the risk of wrongful convictions and to avert the type of insurance crises we experienced with terrorism and pollution coverage. If changes are required, better to implement them in a proactive, orderly fashion than to walk headlong into a disruptive, destabilizing felt emergency. Second, cognizant that insurers do not appear to control this risk especially well, we should bolster other forms of regulation that do not rely on the threat of civil liability to create the incentives necessary for harm reduction.
1. Improving insurance.
This section considers two commonplace insurance devices that might allow insurers to gauge the risk of wrongful convictions more accurately: feature rating (rather than experience rating) and claims-made coverage (rather than occurrence-based coverage).
a. Experience rating vs. feature rating
Insurers use two principal techniques to tailor rates for their policyholders: experience rating and feature rating.100
For descriptions of the two approaches, see Abraham, supra note 70, at 71–74.
As far as I can tell, however, insurers are not feature rating based on the risk characteristics known to affect the likelihood of wrongful convictions. For example, insurers could—but, to my knowledge, do not—raise rates for agencies that fail to videotape interrogations (to help avoid false or coerced confessions) or use double-blind lineup procedures (to reduce the danger of erroneous eyewitness identifications).101
See Garrett, supra note 21, at 103–04 (discussing these and other reforms to reduce the risk of wrongful convictions).
b. Occurrence vs. claims-made coverage
Even feature-rated premiums, however, may not be accurate enough to encourage optimal loss prevention and ensure insurer stability. There is an additional, somewhat more drastic step insurers might take. I have assumed, so far, that police liability coverage is offered, as has been the general (though not exclusive) tradition, on an occurrence basis.102
A 1991 study reported that 61.6% of law enforcement liability policies were occurrence-based. ICMA & Wyatt Co., Law Enforcement Officials Liability Insurance: Current Status—1991, at 6 (1991). A more recent publication states that claims-made forms are now more common, but the basis for this assertion is not made plain. See Albert P. Amato, Reinsurance Reference Guide 117 (2012).
Abraham, supra note 70, at 49–50.
Id. at 50.
Id.
Id.
Id.
Kenneth S. Abraham, Insurance Law and Regulation 622 (5th ed. 2010); see also Jaap Spier, Long Tail (Liability) Risks and Claims Made Policies, 23 Geneva Papers on Risk & Ins. 152 (1998). More generally, claims-made policies work well to reduce the problem of insuring correlated risk. See Doherty & Dionne, supra note 63, at 198; see also Neil A. Doherty, The Design of Insurance Contracts When Liability Rules Are Unstable, 58 J. Risk & Ins. 227 (1991). Municipal risk pools, which are essentially small mutual insurers, may have less need to use a claims-made policy, as the mutual form may accomplish similar objectives. See Doherty & Dionne, supra note 63, at 196–97.
More accurate pricing, while generally beneficial, may not translate straightforwardly into better loss prevention. “Although the shift from occurrence to claims-made coverage solves many of the insurance industry’s prediction problems,” Kenneth Abraham explains, “it does little to remove the obstacles to thorough cost internalization. If anything, such a shift may be a step in the opposite direction.”109
Abraham, supra note 70, at 50.
Id.; see also Katzman, supra note 69, at 88 (asserting that, under claims-made policies, “current premiums are not easily affected by current risk management practices”).
Abraham, supra note 70, at 50.
Id.
That is not to say, of course, that a claims-made insured is without any incentive for careful behavior—it is “always at risk that its coverage will not be renewed because of unsafe operations, and that it will be exposed thereafter to claims that have not yet been reported.”113
Id. at 51.
See Telephone Interview with Commercial Insurer D, supra note 44; cf. Katzman, supra note 69, at 87 (describing how environmental impairment liability is excluded from occurrence-based general liability policies and written separately on a claims-made basis).
2. Complementing insurance.
Even were insurers to adopt all of my proposals, I would remain skeptical about just how well they could regulate the risk of wrongful convictions. There is a need here for a more active government presence—a vessel into which we might funnel some of the reform efforts presently focused on the use of force.115
See Lempert, supra note 82, at 385 (arguing that government planning and regulation is necessary to control low-probability, high-consequence events).
See, e.g., Gould et al., supra note 59, at 97–101; Int’l Ass’n of Chiefs of Police & Office of Justice Programs, U.S. Dep’t of Justice, National Summit on Wrongful Convictions: Building a Systemic Approach To Prevent Wrongful Convictions (2013), http://www.innocenceproject.org /files/imported/wrongful_
convictions_summit_report_2013.pdf (https://perma.cc/Y3NW-HTTF];Garrett, supra note 21, at 103–06 (detailing reforms and describing them as “inexpensive and easy to adopt”).
See Rappaport, supra note 8, at 252–54.
See generally id.
Cf. Kami Chavis Simmons, Cooperative Federalism and Police Reform: Using Congressional Spending Power To Promote Police Accountability, 62 Ala. L. Rev. 351 (2011).
See, e.g., Matthieu Bussière & Marcel Fratzscher, Low Probability, High Impact: Policy Making and Extreme Events, 30 J. Pol’y Modeling 111 (2008). To some extent, we see this occasionally already. See, e.g., Jess Bidgood, Massachusetts Justices Clear Way for New Trials in Cases Chemist May Have Tainted, N.Y. Times, May 19, 2015, at A11 (describing decision to allow thousands of defendants whose cases may have been tainted by a state chemist’s work to seek new trials); Steve Mills & Ken Armstrong, Hard Calls Face Ryan in Death Row Review, Chi. Trib., Mar. 5, 2002 (describing the Illinois governor’s pledge to review the cases of all 159 death row inmates due partly to concerns about wrongful convictions stemming from systemic flaws).
IV. Low-Dollar, Short-Tail
TOPLow-dollar, short-tail claims are the bread and butter of constitutional criminal procedure litigation. That is, many constitutional violations in the criminal process cause some immediate harm, but not one the legal system deems compensable to any significant extent.121
See Ronald Jay Allen et al., Criminal Procedure: Investigation and Right to Counsel 337 (3d ed. 2016) (“The typical Fourth Amendment case—say, a gratuitous frisk or car search—does not involve the kind of physical injury or property damage that would translate into significant money damages . . . .”).
See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986) (holding that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages”).
Carey v. Piphus, 435 U.S. 247, 248, 263–67 (1978) (holding that, “in the absence of proof of actual injury. . . only nominal damages” are due for a procedural due process violation).
Consider some familiar examples. Even a brief investigatory stop, especially if accompanied by a frisk, may intrude significantly on privacy and dignity interests the Fourth Amendment is said to protect.124
See, e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613–14 (1989) (stating that “the [Fourth] Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction”). Ironically, in the very decision that condoned the stop-and-frisk maneuver, laying the groundwork for controversial “order maintenance” policing programs, the Supreme Court articulated quite sharply the personal harms a frisk inflicts:
[I]t is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
Terry v. Ohio, 392 U.S. 1, 16–17 (1968) (footnote omitted).
Terry, 392 U.S. at 20–22.
Technically, a Miranda violation is not itself a constitutional violation. See Chavez v. Martinez, 538 U.S. 760 (2003). But even if it were, it is hard to see why damages would be more than nominal.
What this means is that insurers have little reason to fear paying out on claims stemming from such mine-run violations, and thus little incentive to expend resources to prevent them. Three additional facts bolster this conclusion. First, although attorney fees provisions of the federal civil rights statutes were enacted partly to overcome plaintiffs’ financial disincentives to suit,127
See Robert V. Percival & Geoffrey P. Miller, The Role of Attorney Fee Shifting in Public Interest Litigation, 47 Law & Contemp. Probs. 233, 239–41 (1984).
See Farrar v. Hobby, 506 U.S. 103, 114–15 (1992) (holding that, when recovery of damages is the purpose of a suit, the fee award should depend on “the amount of damages awarded as compared to the amount sought,” and that plaintiffs who seek compensatory damages but receive only nominal damages “often” should receive “no attorney’s fees at all” (quoting City of Riverside v. Rivera, 477 U.S. 561, 585 (Powell, J., concurring in judgment))). Notwithstanding Farrar, “there are circumstances where a judgment of nominal damages will support an award of attorneys’ fees, based on the vindication of important constitutional rights.” Michael Avery et al., Police Misconduct: Law and Litigation 974 (3d ed. 2015). Even so, defendants are permitted to condition settlement of civil rights cases on the waiver or reduction of attorney fees, which, by some accounts, has “destroyed section 1983 as a remedy for civil rights plaintiffs with only modest damages.” Reingold, supra note 3, at 4.
See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Rizzo v. Goode, 423 U.S. 362 (1976); O’Shea v. Littleton, 414 U.S. 488 (1974).
See, e.g., Nat’l Cas. Co., supra note 17, at 2 (excluding from coverage “‘claim(s),’ demands, or actions seeking relief or redress in any form other than monetary damages”).
See, e.g., Telephone Interview with Commercial Insurer A, supra note 41 (stressing importance of deductibles and self-insured retentions for effective risk management).
Insurers do not disregard these claims entirely. Some insurers—especially municipal risk pools, which are owned by their policy-holding member municipalities—see one of their roles as promoting police professionalism. Reducing the number of Terry or Miranda violations could support this goal.132
See, e.g., Ind. Mun. Ins. Program, supra note 24 (advertising police training videos covering Terry and Miranda).
See, e.g., Chavez v. Martinez, 538 U.S. 760, 798–99 (2003) (Kennedy, J., concurring in part and dissenting in part).
Still, at the end of the day, insurers will be hard-pressed to regulate closely an aspect of police conduct that does not, itself, threaten substantial civil liability. This describes a good deal of plain vanilla unlawful behavior. And if insurers do not regulate, someone else has to. For the most part, we rely on criminal defendants to act as private attorneys general by raising the claims in a defensive posture, in motions to suppress evidence.134
See generally Meltzer, supra note 14.
Leong, supra note 13, at 425.
See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).
For a proposal on how to extract the greatest returns from the limited resources available for § 14141 litigation, see Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1 (2009).
See, e.g., Floyd, 959 F. Supp. 2d at 559–60 (finding that, during an eight-year period in New York City, “at least 200,000 stops were made without reasonable suspicion,” and “[t]he actual number of stops lacking reasonable suspicion was likely far higher”).
As I have argued elsewhere, and alluded to above, in my view the biggest advance that can be made here, within the limits of practicality, is to reorient some of our constitutional doctrine to focus defendants’ claims on systemic rather than (or in addition to) individual issues.139
See generally Rappaport, supra note 8.
V. Low-Dollar, Long-Tail
TOPAs a doctrinal matter, the Constitution forbids racial profiling—targeting an individual for suspicion of crime because of his race.140
See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (stating that “the Constitution prohibits selective enforcement of the law based on considerations such as race”).
Stipulation and Order of Settlement and Discontinuance at 2, Sultan v. Kelly, No. 09-CV-00698 (RJD) (RER) (E.D.N.Y. June 30, 2009).
Telephone Interview with Commercial Insurer D, supra note 44 (asserting that $100,000 is a common self-insured retention among his company’s policyholders).
See, e.g., Settlement Agreement at 1–2, Md. State Conf. of NAACP Branches v. Md. State Police, No. FPS-98-1098 (D. Md. Apr. 3, 2008) (agreeing to settle the claims of six plaintiffs for $300,000 total); Settlement Agreement at 7, Wilkins v. Md. State Police, No. MJG-93-468 (D. Md. Jan. 5, 1995) (settling the claims of four plaintiffs for $12,500 per plaintiff ); ACLU, ACLU of NJ Wins $775,000 for Victims of Racial Profiling by State Troopers (Jan. 13, 2003), https://www.aclu.org /news/aclu-nj-wins-775000-victims-racial-profiling-state-troopers(https://perma.cc/3ZDZ-URSF](awarding majority of plaintiffs around $31,000 each).
See, e.g., Gousse v. City of Los Angeles, No. B174896, 2007 Cal. App. Unpub. LEXIS 2882 (Cal. Ct. App. Apr. 10, 2007) (affirming trial court’s decision to grant a new trial on damages after a jury awarded $33,000,000 to a urological surgeon who claimed lost earning capacity, among other damages); ACLU, supra note 143 (reporting having settled claims of two plaintiffs who were beaten and held at gunpoint for $200,000 each).
See, e.g., The Leadership Conference, Restoring a National Consensus: The Need to End Racial Profiling in America (Mar. 2011), http://www.civilrights.org /publications/reports/racial-profiling2011/racial_profiling2011.pdf(https://perma.cc/4EUN-JNWN](collecting evidence); Ian Ayres, Racial Profiling in L.A.: The Numbers Don’t Lie, L.A. Times, Oct. 23, 2008.
Recall that most policies do not cover defense against suits for declaratory and injunctive relief. See supra note 129.
As before, this is not to say that insurers pay no attention to racial profiling. Discrimination can factor into broader, more costly occurrences like the racially motivated use of force. In an effort to manage this risk, some insurers have begun to consider the racial and ethnic diversity of the police force at underwriting or rating.147
Susan Kostro, Police Excessive Force Raises Liability Risk Scrutiny, Ironshore
(Oct. 1, 2015), http://www.ironshore.com/blog /police-excessive-force-raises-liability-risk-scrutiny(https://perma.cc/RFP7-4PUG).
Telephone Interview with Risk Pool D, supra note 27; Telephone Interview with Risk Pool E, supra note 89.
Gallagher, supra note 19, at 52; see also Girod, supra note 19, at 163 (declining to list racial profiling among fourteen “most common [types of] ‘actionable conduct’ involving civil rights liability” for police).
One commonsense way to focus additional attention on racial profiling would be to lobby for loftier damages. Higher payouts would better reflect the dignitary harms racial profiling inflicts and create stronger financial incentives for municipalities—and their insurers—to beef up efforts to prevent profiling. This strategy would likely improve upon the status quo, yet substantial impediments to effective regulation-by-insurance would remain. One such impediment is that racial profiling claims frequently have longer tails than one might expect.
To be sure, an individual who is profiled by the police might personally suspect (or even know) as much immediately. (The same is true, of course, of a wrongfully convicted defendant who knows he is innocent.) But from a risk management perspective, the more important question is when the individual can prove that he has been profiled, i.e., when he is likely to sue. And it turns out that racial profiling claims frequently lie dormant for years. Why? In all but the rarest cases that involve direct evidence of discriminatory intent,150
See, e.g., Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003).
See, e.g., id. (“In general, the absence of an overtly discriminatory policy or of direct evidence of police motivation results in most claims being based on statistical comparisons between the number of black or other minority Americans stopped or arrested and their percentage in some measure of the relevant population.”); David Rudovsky, Litigating Civil Rights Cases to Reform Racially Biased Criminal Justice Practices, 39 Colum. Hum. Rts. L. Rev. 97, 109–12 (2007) (“[W]here discrimination is sufficiently ‘clandestine and covert,’ statistical evidence of a discriminatory pattern is the ‘only available avenue of proof.’” (quoting Int’l Bd. of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977))); Brian L. Withrow & Jeffrey Doug Dailey, Racial Profiling Litigation: Current Status and Emerging Controversies, 28 J. Contemp. Crim. Just. 122, 130 (2012). Fourth Amendment doctrine regards discriminatory intent as irrelevant; as long as the police have sufficient cause to, say, pull over a vehicle, it matters not whether the driver’s race supplies their true motive for the stop. Whren v. United States, 517 U.S. 806, 813 (1996).
Dique v. N.J. State Police, 603 F.3d 181, 184 (3d Cir. 2010).
More generally, there is an incentive for racial profiling claimants to delay pursuing their claims; many cases will gain strength as time passes and more data roll in. The incentive may well be the opposite in the use-of-force context: sue quickly while witnesses’ memories are fresh. In addition, both plaintiffs and courts routinely rely on data from outside the limitations period to inform the legality of more recent activity, which means that expiration of the statute of limitations does not signal the same degree of repose for insurers that it might in, say, the use-of-force setting.153
See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 558–60, 572 n.100, 590 (S.D.N.Y. 2013) (relying, in a lawsuit filed in 2008, on data and expert analysis reaching to January 2004, a state attorney general report from 1999, and evidence of “more than a decade” of institutional indifference); Floyd v. City of New York, 283 F.R.D. 153, 160 (S.D.N.Y. 2012) (certifying a class covering individuals stopped by police beginning in 2005); Complaint at 9–13, Floyd v. City of New York, No. 08 Civ. 1034 (SAS) (S.D.N.Y. Jan. 31, 2008) (connecting present-day allegations to history of police activity dating to the 1970s).
To give one example, the plaintiffs in a major racial profiling lawsuit in California—a class of individuals whom the police had stopped beginning in 1998—alleged that the California Highway Patrol (CHP) had “long relied upon race and ethnicity in conducting stops, detentions, interrogations and searches of motorists” as part of an “unabated, continuing pattern and practice of discrimination” that had intensified in recent years.154
First Amended Complaint at 6, 16, Rodriguez v. Cal. Hwy. Patrol, No. 5:99-CV-20895-JF (N.D. Cal. Nov. 30, 1999).
Id. at 6–7.
Id. at 7.
Two implications follow. First, even if racial profiling triggered heavier damages, insurers would face substantial challenges in pricing and managing the risk. This is true for the reasons discussed in Part III—namely, that the long tail of liability heightens the degree of correlation among the covered risks, tempts insurers to externalize to the future, and creates uncertainty about the number and magnitude of claims insurers should anticipate.157
See supra pp. 386–92.
Second, criminal defendants are poorly situated to serve as private attorneys general, at least relative to how well they can play that role for claims with shorter tails. In many cases, present proof of discriminatory intent—through statistical analysis of prior incidents—will simply be unavailable when the defendant is charged, even though proof may bubble up in patterns of future police activity. But even where present proof is theoretically available—and where defense resources exist to analyze and present it—pretrial detention creates strong incentives for defendants to resolve their cases as quickly as possible, sooner than will allow for the development of a relatively complex racial profiling claim.158
See, e.g., Nick Pinto, The Bail Trap, N.Y. Times Mag., Aug. 13, 2015, at MM38.
See Armstrong v. United States, 517 U.S. 456 (1996) (denying defendants discovery on selective prosecution claims unless they can show that the government declined to prosecute similarly situated suspects of other races). Courts are divided on whether (and how) the Armstrong standard applies in the selective enforcement (i.e., policing) context. See Jody Feder, Cong. Research Serv., RL31130, Racial Profiling: Legal and Constitutional Issues 6–9 (2012).
My research uncovered no complete victories by criminal defendants based on racial profiling under either state or federal law. New Jersey courts have granted motions to suppress evidence based on state-law equal protection violations, though even these partial victories are rare. See, e.g., State v. Segars, 799 A.2d 541, 552 (N.J. 2002) (“This is a very unusual case. Without Officer Williams’s repudiated testimony, the evidence produced by Segars that Officer Williams saw him prior to the MDT check would have been completely inadequate to support an inference of discriminatory enforcement.”); State v. Soto, 734 A.2d 350 (N.J. Super. Ct. 1996); see also David A. Harris, Racial Profiling Redux, 22 St. Louis U. Pub. L. Rev. 73, 77–79 (2003) (characterizing as unsurprising the “lack of litigation success in suits against racial profiling,” and crediting “unusual circumstances” for successes in Soto and a famous civil case); Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1427 (2013) (“Only New Jersey courts have granted motions to suppress in Fourteenth Amendment equal protection claims, based on their interpretation of the New Jersey Constitution.” (footnote omitted)).
It appears, therefore, that neither civil plaintiffs—with liability filtered through insurance—nor criminal defendants, acting as private attorneys general, show much promise in the fight against racial profiling. A relatively small amount of injunctive-relief litigation has helped call attention to the problem, and may reduce the frequency of profiling in the targeted jurisdictions, but it seems unlikely to be a general solution.161
See, e.g., Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) (upholding part of a permanent injunction); Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (entering a permanent injunction); see also Arnold v. Ariz. Dep’t of Pub. Safety, No. CV–01–1463–PHX–LOA, U.S. Dist. LEXIS 53315 (D. Ariz. July 31, 2006) (affirming a settlement agreement containing extensive prospective relief, including modifications to police procedures and training requirements); In re Cincinnati Policing, 209 F.R.D. 395 (S.D. Ohio 2002) (similar). On the general difficulty of litigating racial profiling claims effectively, see David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 40 (1999); Albert W. Alschuler, Racial Profiling and the Constitution, 2002 U. Chi. Legal F. 163, 245, 248; Harris, supra note 160, at 78; Kevin R. Johnson, Racial Profiling in America, 98 Geo. L.J. 1005, 1069, 1069 n.394 (2011); Kami Chavis Simmons, Beginning To End Racial Profiling: Definitive Solutions to an Elusive Problem, 18 Wash. & Lee J. Civil Rts. & Soc. Just. 25, 37 (2011).
NAACP, Born Suspect: Stop-and-Frisk Abuses and the Continued Fight
To End Racial Profiling in America 19 (Sept. 2014), http://action.naacp.org /page/-/Criminal%20Justice/Born_Suspect_Report_final_web.pdf(https://perma.cc/T54T-KVU2).
Id. at Appx. II (listing, among essential components of an effective racial profiling law, “funds for periodically retraining officers and installing in-car video cameras, body-worn cameras, and gun cameras”); see L. Song Richardson, Police Racial Violence: Lessons From Social Psychology, 83 Fordham L. Rev. 2961, 2975–76 (2015) (describing the Fair and Impartial Policing program, which educates agencies about implicit bias); Robert J. Smith, Keynote Address, Reducing Racially Disparate Policing Outcomes: Is Implicit Bias Training the Answer?, 37 Haw. L. Rev. 295, 300 (2015) (describing implicit bias training as an “ascendant idea in policing and scholarly circles” and providing citations); Implicit Bias, Nat’l Initiative for Building Cmty. Trust & Just., http://trustandjustice.org /resources/intervention/implicit-bias(https://perma.cc/T8XH-Y2A8](last visited Dec. 19, 2015) (discussing implicit bias interventions and collecting academic research); Press Release, State of Cal. Dep’t of Justice, Attorney General Kamala D. Harris Kicks Off First-of-its-Kind Law Enforcement Training on Implicit Bias & Procedural Justice (Nov. 17, 2015), https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-kicks-first-its-kind-law-enforcement-training(https://perma.cc/ZJ8T-XBM5).
See, e.g., John J. Donohue III & Steven D. Levitt, The Impact of Race on Policing and Arrests, 44 J.L. & Econ. 367, 371 & tbl. 2 (2001) (finding that “an increase in the number of white police is associated with more arrests of minorities but little change in white arrests,” while “an increase in minority officers is associated with more white arrests but not more minority arrests”); Joscha Legewi & Jeffrey Fagan, Group Threat, Police Officer Diversity and the Deadly Use of Force (Columbia Law Sch. Pub. Law Research Paper No. 14-512, 2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2778692(finding that a diverse police force reduces the influence of group threat, lowering the number of officer-involved killings of African Americans); see also Lorie Fridell et al., Racially Biased Policing: A Principled Response 68–78 (2008) (arguing that hiring a racially diverse police force can help reduce racial bias in policing); Robert J. Friedrich, Police Use of Force: Individuals, Situations, and Organizations, 452 Annals Am. Acad. Pol. & Soc. Sci. 82, 90 (1980) (finding that biracial teams of partners use less force). Overall, however, the empirical evidence regarding the performance effects of having a diverse police force is mixed. See David A. Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209, 1224–25, 1229, 1230 (2006) (reviewing studies).
See U.S. Dep’t of Justice, Guidance For Federal Law Enforcement Agencies Regarding The Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity (2014); see also NAACP, supra note 162, at 18–19 (describing repeated attempts to pass federal legislation); Letter from The Leadership Conference to Barack Obama, President of the U.S. (Feb. 24, 2015), http://civilrightsdocs.info/pdf/Sign-On-Letter-Re-DOJ-Guidance-Revisions.pdf(https://perma.cc/AR6Q-8EEH](conveying the “serious concerns” of eighty public interest groups about the DOJ’s 2014 guidance).
President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 28 (2015).
See Rappaport, supra note 8, at 269.
There is one major sticking point I have obscured, however: We have little idea which, if any, of these leading reform proposals actually work.168
See, e.g., Smith, supra note 163, at 302 (noting that, despite the growing popularity of implicit bias training, when it comes to efficacy, “empirical support is lacking”); Jack Glaser, How to Reduce Racial Profiling, Greater Good (May 28, 2015) http://greatergood.berkeley.edu/article/
item/how_reduce_racial_profiling (https://perma.cc/7UQW-T5ZA](maintaining that, “to date, research has yet to uncover a straightforward method that can lastingly mitigate implicit biases” that result in racial profiling).
VI. Conclusion
TOPTo tame police misconduct, we must first understand the nature of the beast. Careful attention to the incentives of, and constraints on, some of the major players in policing reveals not one but many species of misconduct. These players include the constitutional rights-holders—i.e., the victims of misconduct, on whom we rely to serve as private attorneys general—as well as the intermediary institutions, like insurers, that help operationalize the deterrent ambitions of our civil liability regime. Some misconduct inflicts harms the legal system compensates meaningfully; some inflicts harms that, even if normatively serious, the system leaves largely unremedied. Some legal injuries manifest immediately; others manifest only after significant delay. These distinctions make it unlikely that any one solution, or any single remedial regime, will work best to reduce police misconduct across the board. Given these truths, police reformers ought to start thinking like foxes rather than hedgehogs.169
See Isaiah Berlin, The Hedgehog and the Fox 1 (Henry Hardy ed., Princeton Univ. Press 2013) (1953) (“The fox knows many things, but the hedgehog knows one big thing.”).
- 1“Municipality” and “police,” as used here, include both city- and county-level entities and law enforcement officers.
- 2I describe the phenomenon of police “regulation-by-insurance” in detail in other work. See John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. (forthcoming 2017), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733783(https://perma.cc/2EC3-SBHE). For two of the very few other legal academic papers to touch on insurance, see Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63 UCLA L. Rev. 1144 (2016) [hereinafter Schwartz, How Governments Pay]; Joanna C. Schwartz, Who Can Police the Police?, 2016 U. Chi. Legal F. 437; see also Charles R. Epp, Making Rights Real 115–37 (2009) (studying insurance among numerous factors that might influence “legalized accountability” by police agencies); Candace McCoy, How Civil Rights Lawsuits Improve American Policing, in Holding Police Accountable 111, 112 (Candace McCoy ed., 2010) (asserting that “insurance companies [have] demanded that police improve their policies and practices in adherence to constitutional requirements and thus avoid monetary payouts to injured citizens”).
- 3For a different typology that also sorts civil rights claims according to their dollar value, see Paul D. Reingold, Requiem for Section 1983, 3 Duke J. Const. L. & Pub. Pol’y 1, 13 (2008) (organizing claims by dollar value and substantive strength).
- 4“Long-tail claims are those which are not brought (or if brought, not resolved) for some years after the action by the defendant that gives rise to the claim.” Kenneth S. Abraham, Environmental Liability and the Limits of Insurance, 88 Colum. L. Rev. 942, 964 n.69 (1988). In practice, legal claims lie on a spectrum, ordered by the length of their tail; the trait is continuous, not binary.
- 5In my initial research for Rappaport, supra note 2, I conducted thirty-three semistructured telephone interviews, mostly with members of the industry who were high-ranking officials within their respective firms. I located my subjects using a “snowball sampling” technique. See, e.g., John Lofland et al., Analyzing Social Settings: A Guide to Qualitative Observation and Analysis 43 (4th ed. 2006) (discussing “snowball” or “chain-referral” sampling: “a method for generating a field sample of individuals possessing the characteristics of interest by asking initial contacts if they could name a few individuals with similar characteristics who might agree to be interviewed”). My interview subjects were geographically diverse, including representatives of firms in every time zone and consultants who travel the country. I followed up on some of these interviews with targeted questions via email or a quick additional telephone call, which I did not count toward the total thirty-three. I also attended the 2015 annual conferences of the Association of Governmental Risk Pools and the International Association of Chiefs of Police. For this Article—in particular for the research in Part III—I requested additional telephone interviews with the relevant experts who had been most helpful during the first round of interviews; I ended up speaking with eight of them. I ceased interviewing new subjects when responses became repetitious.
- 6See sources cited infra note 76.
- 7See Terry v. Ohio, 392 U.S. 1 (1968); Miranda v. Arizona, 384 U.S. 436 (1966).
- 8See John Rappaport, Second-Order Regulation of Law Enforcement, 103 Calif. L. Rev. 205 (2015).
- 9A risk pool is a nonprofit, mission-driven organization formed by a group of local government entities, usually within one state, to finance a risk, typically by pooling or sharing that risk. The entities themselves ordinarily own and govern the pool. See Rappaport, supra note 2 (manuscript at 21–22); see generally Jason E. Doucette, Note, Wading in the Pool: Interlocal Cooperation in Municipal Insurance and the State Regulation of Public Entity Risk Sharing Pools—A Survey, 8 Conn. Ins. L.J. 533, 541–42 (2002).
- 10See, e.g., Carol A. Archbold, Police Accountability, Risk Management, and Legal Advising 25 (2004) (concluding, based on survey results, that “risk management programs are still in the infancy stage of being embraced by police agencies”); Joanna C. Schwartz, Introspection Through Litigation, 90 Notre Dame L. Rev. 1055, 1095–1101 (2015) (reviewing evidence that few police departments have risk managers); Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1023 (2010) (finding that the largest police agencies only rarely learn from lawsuits filed against them or their officers).
- 11See, e.g., Graham v. Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471 U.S. 1 (1985).
- 12See, e.g., Monica Davey, Chicago Pays $5 Million over Killing of Teenager, N.Y. Times, Apr. 16, 2015, at A15 (reporting $5 million settlement in death of Laquan McDonald); Richard Fausset, Settlement Reached in Shooting by Officer, N.Y. Times, Oct. 9, 2015, at A24 (reporting $6.5 million settlement in death of Walter Scott); Sheryl Gay Stolberg, University of Cincinnati to Pay $5 Million to Family in Killing by Police, N.Y. Times, Jan. 19, 2016, at A16 (reporting $4.85 million payout in death of Samuel DuBose, which “appears in line with other recent settlements of cases involving police officers”); Sheryl Gay Stolberg, Baltimore Announces $6.4 Million Settlement in the Death of Freddie Gray, N.Y. Times, Sept. 9, 2015, at A20 (reporting $6.4 million settlement in death of Freddie Gray, which “[l]egal specialists said . . . was in line with settlements for recent racially charged police misconduct cases,” including Eric Garner, whose estate settled for $5.9 million).
- 13See Nancy Leong, Making Rights, 92 B.U. L. Rev. 405, 425 (2012) (finding that “98% of excessive force claims are litigated in the civil context”); see also id. at 441 (asserting that criminal “courts routinely ignore the use of force in analyzing the legality of an investigative stop”).
- 14See, e.g., Nat’l Research Council of the Nat’l Acads., Fairness and Effectiveness in Policing 278–80 (Wesley Skogan & Kathleen Frydl eds., 2004); Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1626–34 (2012); Richard Emery & Ilann Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 Fordham Urb. L.J. 587 (2000); Diana Hassel, Living a Lie: The Cost of Qualified Immunity, 64 Mo. L. Rev. 123, 145 n.106 (1999); Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345 (2000); Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum. L. Rev. 247, 283–86 (1988); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). But see, e.g., Myriam E. Gilles, In Defense of Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 Ga. L. Rev. 845 (2001).
- 15Leong, supra note 13, at 446; see also Rachel Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1127 (2008) (calling the doctrine “indeterminate” as well as “unprincipled”).
- 16Leong, supra note 13, at 447.
- 17See, e.g., Law Enforcement Liability Coverage Form, Nat’l Cas. Co. 5–6, http://euclidps.com/2/wp-content /uploads/2014/05/Law_Enforcement_II_PE_PL_2_0802.pdf(https://perma.cc/E538-LB3C];see also Kenneth S. Abraham, Four Conceptions of Insurance, 161 U. Penn. L. Rev. 653, 656 (2013) (stating that “virtually all property-casualty insurance policies . . . are standard-forms used by most insurers”).
- 18See Rappaport, supra note 2 (manuscript at 16–17); see also Omri Ben-Shahar & Kyle D. Logue, Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111 Mich. L. Rev. 197, 203–05 (2012).
- 19G. Patrick Gallagher, Successful Police Risk Management 53 (2014); see also Robert J. Girod, Police Liability and Risk Management 163 (2014) (placing “[u]se of force and deadly force” atop a list of the “most common ‘actionable conduct’ involving civil rights liability” for police).
- 20See, e.g., Police Professional Liability Insurance Application, Prof ’l Gov’tal Underwriters, Inc. (June 2014), http://www.pgui.com/App_Content /media/2014%20apps/DRWN%20PPL%201010%2006_14%20PGU%20Police%20New%20Bus%20Application.pdf(https://perma.cc/XLA2-36Z3).
- 21See, e.g., Trident Risk Points: Operational Policies & Procedures: Use of Force Policy Elements, Trident Ins. Servs. (July 2012), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/9a5e44de9e07465726bcb14894240b67ba9c4565/5PLYTFCP9D5H/Trident-LEL-Use-of-Force-Policy-Elements-2012.pdf(https://perma.cc/2VCJ-QJAW];see also Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Conviction Law, 2005 Wis. L. Rev. 35, 107 (explaining that municipal liability “can be premised on a police department’s deviation from national police practices”).
- 22See Focus On: Police—Excessive Use of Force, Munich Re (May 2015), https://www.munichre.com/site/mram-mobile/get /documents_E876514504/mram/assetpool.mr_america/PDFs/3_Publications/Research_Spotlight /FOCUS%20ON_Excess-Force.pdf(https://perma.cc/4LW9-T4S6];Trident Risk Points: Operational Policies & Procedures: Suggested Controls for Electronic Stun Weapons, Trident Ins. Servs. (July 2012), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/dad1345ec51a64376baf01f33f257328aa66bfd5/G5V9I05T5956/Trident-LEL-Electronic-Stun-Weapon-Policy-2012.pdf(https://perma.cc/SA9W-DU3M];Trident Ins. Servs., supra note 21; see also The Use-of-Force Continuum, Nat’l Inst. of Justice, Office of Justice Programs (Aug. 4, 2009), http://www.nij.gov/topics/law-enforcement /officer-safety/use-of-force/Pages/continuum.aspx[perma.cc/L2M3-S8LK). A recent report by the Police Executive Research Forum challenges the continuum’s status as a “best practice,” arguing that the continuum can encourage officers to escalate encounters and that “there are more effective ways to respond to many threats than through a use-of-force continuum.” Police Exec. Research Forum, Guiding Principles on Use of Force 19–20 (2016).
- 23See, e.g., Stephen A. Bishopp et al., An Examination of the Effect of a Policy Change on Police Use of TASERs, 26 Crim. J. Pol’y Rev. 727 (2015) (electronic stun weapons); James J. Fyfe, Police Use of Deadly Force: Research and Reform, 5 Just. Q. 165 (1988) (firearms).
- 24See, e.g., Munich Re, supra note 22; Law Enforcement Training Videos, Ind. Mun. Ins. Program, http://www.indianamip.com/law_enforcement.html(https://perma.cc/5JKX-XUEG](last visited Aug. 31, 2015) (listing dozens of training videos covering topics such as “Straight Baton Techniques,” “Line Officer Tactical Shotgun,” and “Basic and Power Handcuffing Techniques”); Telephone Interview with Consultant A (Aug. 16, 2014) (describing having conducted, on behalf of insurers, “hands-on” training on use of force, transportation of prisoners, and other related topics).
- 25Risk Management, Liability Insurance, and CALEA Accreditation, CALEA, http://www.calea.org /content /risk-management-liability-insurance-and-calea-accreditation(https://perma.cc/UW7A-3VRU](last visited Aug. 31, 2015) (maintaining list of “liability insurance providers known to CALEA to offer some type of financial incentive to CALEA accredited agencies”); Ileana Garcia, Slidell Police Accreditation Keeps the Department’s Insurance Rate Low, Slidell Sentry-News, reprinted in CALEA Update Mag., Feb. 2001, http://www.calea.org /calea-update-magazine/issue-75/accreditation-works/slidell-police-accreditation-keeps-departments-in(https://perma.cc/H43T-YXMS).
- 26See Standards Titles, CALEA, http://www.calea.org /content /standards-titles[perma.cc/D2VM-9ZT8](last visited Nov. 30, 2015) (listing standards); Law Enforcement Program: The Standards, CALEA, http://www.calea.org /content /law-enforcement-program-standards(http://perma.cc/JR8C-3JZM](last visited Nov. 30, 2015) (requiring compliance with standards); Law Enforcement Program: Process, CALEA, http://www.calea.org /content /law-enforcement-program-process(http://perma.cc/QJ84-ARP5](last visited Nov. 30, 2015) (requiring continued compliance and reaccreditation).
- 27E.g., Telephone Interview with Risk Pool D (July 6, 2015).
- 28See, e.g., Daniel Cruse & Jesse Rubin, Determinants of Police Behavior 5 (1973) (reporting, based on field study, that “the amount of stress seems to have a good deal of effect on the behavior of the officer”); Gail A. Goolkasian et al., Coping With Police Stress 10 (1986) (reporting findings that stress can negatively affect work performance, though noting studies’ limitations); Ronald J. Burke & Aslaug Mikkelsen, Burnout, Job Stress and Attitudes Towards the Use of Force by Norwegian Police Officers, 28 Policing Int’l J. Police Strats. & Mgmt. 269, 269–72 (2005) (summarizing studies finding that chronic work stress causes burnout, which is positively and significantly related to the use of force); Nicolien Kop & Martin C. Euwema, Occupational Stress and the Use of Force by Dutch Police Officers, 28 Crim. Just. & Behav. 631 (2001) (similar); Manny Fernandez, Officer Was Under Stress When He Arrived at Texas Pool Party, Lawyer Says, N.Y. Times, June 11, 2015, at A15 (describing lawyer’s assertion that McKinney, Texas, police officer who was videotaped tackling a black teenager in a bikini outside a pool party was under stress after responding to two earlier calls involving a suicide and attempted suicide); Mark Bond, The Impact of Stress and Fatigue on Law Enforcement Officers and Steps to Control It, In Public Safety (Feb. 24, 2014), http://inpublicsafety.com/2014/02/the-impact-of-stress-and-fatigue-on-law-enforcement-officers-and-steps-to-control-it(https://perma.cc/L8ZS-VBLN](asserting that officer stress can lead to fatigue, which in turn can lead to misconduct and “inappropriate reactions to a situation”).
- 29See, e.g., Trident Risk Points: Operational Policies & Procedures: Law Enforcement Employment Hiring Policy, Trident Ins. Servs. (Sept. 2012), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/74ab995451582b436242abc67f5252a8f9e34329/795717IY6X5I/Trident-Employment-Hiring-Program-2012.pdf(https://perma.cc/2P9J-PQAM). The research on the benefits of psychological screening of officer candidates is mixed. See, e.g., Michael G. Aamodt, Predicting Law Enforcement Officer Performance with Personality Inventories, in Personality Assessment in Police Psychology 229, 238–40 (Peter A. Weiss ed., 2010) (reporting, based on meta-analysis of 200 studies, that some aspects of certain personality tests do a reasonable job of predicting officer performance, including disciplinary problems, but many do not); Robert E. Cochrane et al., Psychological Testing and the Selection of Police Officers: A National Survey, 30 Crim. Just. & Behav. 511, 515 (2003) (collecting sources that have “demonstrated the usefulness of personality measures in predicting job performance” of police officers); Candice Bernd, Evaluating Police Psychology: Who Passes the Test?, Truthout (Feb. 20, 2015, 9:25 AM), http://www.truth-out.org /news/item/29191-evaluating-police-psychology-who-passes-the-test(http://perma.cc/YXM7-TFD6](asserting that, “[w]hen departments forgo psychological screenings, the result is often violence,” but also highlighting the lack of standardization and sophistication of screening exams).
- 30Ken Wallentine, Vice President & Senior Legal Advisor, Lexipol, Body Worn Cameras: Risk and Reward (Oct. 6, 2015). Wallentine cited studies from Rialto, California, and Denver, Colorado. See Barak Ariel et al., The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial, 31 J. Quant. Criminology 509 (2015); Cole Zercoe, Body Camera Study: Denver Police See Drop in Arrests, UOF Complaints, PoliceOne (Sept. 4, 2015), http://www.policeone.com/police-products/body-cameras/articles/9485301-Body-camera-study-Denver-police-see-drop-in-arrests-UOF-complaints/(https://perma.cc /ZD3X-QETH];see also Munich Re, supra note 22 (“[P]olice departments are encouraged to purchase body cameras, provide training and set standards for their use.”); The Effect of Body Worn Cameras & Police Use of Force, Trident Ins. Servs. (Feb. 2015), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/d94acf91189467168892daca4ba90de76bc8a263/D6L33YO488Y0/Your_Risk_Control_Resource_-_Feb15.pdf(https://perma.cc/33HQ-LVYG](“[B]ody-worn cameras appear to be a potentially valuable tool in reducing police use of force and related incidents.”).
- 31Munich Re, supra note 22.
- 32See, e.g., Law Enforcement Training Solutions, Meggitt Training Sys., http://meggitttrainingsystems.com/Law-Enforcement(https://perma.cc/2M6B-4F76](last visited Aug. 31, 2015); VirTra, http://www.virtra.com/(https://perma.cc/3DKA-Q4ZK](last visited Aug. 31, 2015); Milo Range, http://www.milorange.com(https://perma.cc/UQ35-KHNN](last visited Aug. 31, 2015).
- 33Craig Bennell & Natalie J. Jones, Can. Police Research Ctr., The Effectiveness of Use of Force Simulation Training 8 (2005), http://www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng /cn000032136920-eng.pdf(https://perma.cc/P35H-NGY6).
- 34Id.
- 35Id. at 6; see also Jennifer Armstrong et al., Monitoring the Impact of Scenario-Based Use-of-Force Simulations on Police Heart Rate: Evaluating the Royal Canadian Mounted Police Skills Refresher Program, 15 W. Criminology Rev. 51 (2014); Evelyn-Rose Saus et al., The Effect of Brief Situational Awareness Training in a Police Shooting Simulator: An Experimental Study, 18 Military Psych. S3 (2006).
- 36William Micklus, Assoc. Dir., Upper Midwest Cmty. Policing Inst. & Jeffrey Range, Senior Practitioner, Resologics, Dispute Resolution: Skills Training for Law Enforcement (Oct. 7, 2015).
- 37See, e.g., Training Calendar, Wash. Cities Ins. Auth., http://www.wciapool.org /education-training /calendar(https://perma.cc/6QWJ-F4NE](last visited Nov. 30, 2015); Featured Training Notice, Cities & Vills. Mut. Ins. Co. (Mar. 26, 2015), http://www.cvmic.com/featured-training-notice/(https://perma.cc/DQ6E-NEJP).
- 38Munich Re, supra note 22.
- 39See, e.g., Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453 (2004) (discussing the separation between formal departmental policies and informal de facto norms); Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department “Pattern or Practice” Suits in Context, 22 St. Louis U. Pub. L. Rev. 3, 45 (2003) (disaggregating “primary compliance,” which “involves the development of a formal policy on a particular aspect of police operations”; “secondary compliance,” which “involves evidence that the department has incorporated the policy into training and supervision”; and “operational compliance,” which “involves evidence that officers comply with the policy in their routine activities”).
- 40See supra note 24.
- 41Telephone Interview with Commercial Insurer A (July 20, 2015) (every three years); Telephone Interview with Risk Pool A (Sept. 2, 2014) (annual); Telephone Interview with Risk Pool B (Sept. 2, 2014) (semi-annual). Some insurers require online updates from agencies in between audits or encourage self-audits in addition. Telephone Interview with Risk Pool B, supra (requires periodic online updates); Trident Risk Points: Operational Policies & Procedures: Monitoring Compliance with Law Enforcement Manual, Trident Ins. Servs. (July 2012), https://www.argolimited.com/media/03C10U7X865H/docs/en_US/1ff185e22af3a5c38781aa76ee68fcccad4ee5e6/IQJ40V3Z1A83/Trident-LEL-Compliance_with-Manual-2012.pdf(https://perma.cc/G5FS-XPR8](providing guidelines for self-audits).
- 42Telephone Interview with Risk Pool A, supra note 41; Telephone Interview with Consultant B (Aug. 27, 2014).
- 43Telephone Interview with Risk Pool A, supra note 41; Telephone Interview with Risk Pool C (June 29, 2015).
- 44Telephone Interview with Commercial Insurer A, supra note 41; Telephone Interview with Commercial Insurer D (Oct. 13, 2015); Telephone Interview with Risk Pool A, supra note 41; Telephone Interview with Risk Pool D, supra note 27; Telephone Interview with Consultant A, supra note 24; Telephone Interview with Consultant C (Aug. 20, 2014).
- 45See, e.g., Samuel Walker & Carol A. Archbold, The New World of Police Accountability 137–77 (2d ed. 2014); Armacost, supra note 39, at 459–60; Samuel Walker et al., Responding to the Problem Officer: A National Study of Early Warning Systems 2.4–2.6 (2000), https://www.ncjrs.gov/pdffiles1/nij/grants/184510.pdf(https://perma.cc/EXE6-X4TN).
- 46For far more detail on this topic, see Rappaport, supra note 2 (manuscript at 50–55, 57–59).
- 47See, e.g., Alex Green, Niota Officials Tied to Beating Fired; They Say Insurance Company Forced the Action, Times Free Press (Chattanooga), Aug. 24, 2013 (quoting mayor’s report that city’s coverage would have been dropped if two officers involved in misconduct had been allowed back on duty); Rutledge Mayor “Had No Choice” in Firing: Police Chief Refused to Resign; City at Risk of Losing Insurance, Knoxville News-Sentinel, Mar. 23, 2010 (reporting mayor’s assertion he “‘had no choice’” but to fire a police chief accused of misconduct because “the city was at risk of losing its liability insurance” if the chief remained (quoting Mayor Danny Turley)); see also Rob Karwath, Calumet City Will Lose Police Liability Insurance, Chi. Trib., Mar. 29, 1988 (reporting council member’s comment that city’s insurance cancellation was “the final argument for the mayor to pick a new police chief from outside the department” when the interim chief retired).
- 48See, e.g., Schwartz, How Governments Pay, supra note 2, at 1190–91 & nn.165–71 (collecting four examples of police departments that closed due to premium increases or termination of coverage); see also George J. Church, Sorry, Your Policy Is Canceled, Time, Mar. 24, 1986, at 16, 17, 18 (reporting that police patrols were suspended in two towns and five counties closed their jails due to lack of coverage); Tyler Jett, City of Niota, Tenn., Shutting Down. Again., Times Free Press (Chattanooga), June 19, 2013 (reporting that the city’s “police department is closed” after its insurer pulled coverage); cf. Liability Insurance in Crisis, N.Y. Times, Mar. 4, 1986, at A26 (reporting that “police in West Orange, N.J., had to stop patrolling in cars they could no longer insure”).
- 49Telephone Interview with Commercial Insurer B (July 24, 2015); see also Telephone Interview with Commercial Broker A (July 22, 2015) (agreeing that underwriters have become more concerned with police liability since Ferguson); Roberto Ceniceros, Scandals Can Influence Police Liability Coverage, Bus. Ins. (June 5, 2000), http://www.businessinsurance.com/article/20000604/ISSUE01/10002637/scandals-can-influence-police-liability-coverage(https://perma.cc/26HY-XAF5](discussing effect of police scandals on rates and coverage nationwide); Zusha Elinson & Dan Frosch, Cost of Police-Misconduct Cases Soars in Big U.S. Cities; Data Show Rising Payouts for Police-Misconduct Settlements and Court Judgments, Wall St. J., July 15, 2015 (“[I]nsurers and lawyers who defend police say current scrutiny of law enforcement is broadly affecting the resolution of lawsuits.”).
- 50Law Enforcement Overview, Nat’l Conference of State Legislatures (May 29, 2015), http://www.ncsl.org /research/civil-and-criminal-justice/law-enforcement.aspx(https://perma.cc/EP3X-EKD5).
- 51The prospect of criminal punishment may discourage some egregious misconduct, but I am inclined to agree with Paul Chevigny that “[c]riminal law is . . . not a system of ‘discipline’ for police misconduct; it defines the outer limits of what is permissible in society” and is at best a “patchy deterrent.” See Paul Chevigny, Edge of the Knife 98–101 (1995).
- 52See generally Ben-Shahar & Logue, supra note 18.
- 53See, e.g., Telephone Interview with Risk Pool D, supra note 27.
- 54Cf. Kyle D. Logue, Encouraging Insurers to Regulate: The Role (If Any) for Tort Law, 5 U.C. Irvine L. Rev. 1355 (2015).
- 55“Generally” is a meaningful modifier here. See Garrett, supra note 21, at 54; see generally Michael Avery, Obstacles to Litigating Civil Claims for Wrongful Conviction: An Overview, 18 B.U. Pub. Int. L.J. 439 (2009).
- 56See Innocence Project, Making Up for Lost Time: What the Wrongfully Convicted Endure and How To Provide Fair Compensation 4, http://www.innocenceproject.org /files/imported/innocence_project_compensation_report-6.pdf(https://perma.cc/CS7U-MJMW).
- 57Garrett, supra note 21, at 43 n.30, 44 n.32 (collecting cases); see also Mark Iris, Your Tax Dollars at Work! Chicago Police Lawsuit Payments: How Much, and for What?, 2 Va. J. Crim. L. 25, 44–45 (2014) (reporting average payouts of $2.4 and 3.2 million per case for Chicago police defendants in wrongful conviction cases between 2006 and 2012 in federal and state courts, respectively). Compensation is all over the map, however, and in some cases is grievously lacking. Compare Martin G. Hacala, Insights: Wrongful Convictions: What Governmental Risk Pools, and the Public Entities They Insure, Need to Know, Genesis, at 5 (May 2012), https://www.genesisinsurance.com/assets/pdfs/In%20the%20News/Insights20125-2.pdf(https://perma.cc/P9KB-GNT4](“[D]amages awarded in wrongful conviction claims vary significantly. Indeed, it isn’t unheard of for the wrongfully convicted to recover nothing or a trivial amount.”), with id. at 6 (collecting cases sustaining damages in the millions).
- 58Hacala, supra note 57, at 3. A prisoner may not sue for wrongful conviction until his conviction is reversed, expunged, or otherwise invalidated. See Heck v. Humphrey, 512 U.S. 477 (1994).
- 59See Garrett, supra note 21, at 42 (“[I]n a surprisingly large number of cases, wrongful convictions were caused by police misconduct.”); see generally Russell Covey, Police Misconduct as a Cause of Wrongful Convictions, 90 Wash. U. L. Rev. 1133 (2013). According to a 1999 study, the figure is fifty percent. Jim Dwyer et al., Actual Innocence 246 (2003). Other common causes of wrongful convictions include prosecutorial misconduct and deficient defense counsel. See, e.g., James R. Acker & Allison D. Redlich, Wrongful Conviction: Law, Science, and Policy (2011); Jon B. Gould et al., Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice (2012).
- 60Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 75–91 (2008); see generally Brandon L. Garrett, Convicting the Innocent (2011).
- 61See, e.g., Nat’l Cas. Co., supra note 17, at 5–6 (covering “[f]alse arrest, detention or imprisonment, or malicious prosecution” and “[v]iolation of civil rights protected under 42 USC 1981 et sequential or State Law”); Telephone Interview No. 2 with Risk Pool A (Oct. 5, 2015); Telephone Interview No. 2 with Risk Pool B (Oct. 5, 2015).
- 62See Hacala, supra note 57, at 2 (“[E]xoneration . . . presents a significant legal and financial challenge for public entities and the [entities] that insure them.”).
- 63Neil A. Doherty & Georges Dionne, Insurance with Undiversifiable Risk: Contract Structure and Organizational Form of Insurance Firms, 6 J. Risk & Uncertainty 187, 188 (1993).
- 64Id. at 198.
- 65Id. For an excellent clarifying discussion that classifies types of “liability developments risk,” see Tom Baker, Insuring Liability Risks, 29 Geneva Papers on Risk & Ins. 128 (2004).
- 66See Ceniceros, supra note 49.
- 67See Howard C. Kunreuther et al., Insurance and Behavioral Economics 83–85 (2013); S. Hun Seog, The Economics of Risk and Insurance 47 (2010).
- 68See Ben-Shahar & Logue, supra note 18, at 215.
- 69Martin T. Katzman, Pollution Liability Insurance and Catastrophic Environmental Risk, 55 J. Risk & Ins. 75, 83 (1988).
- 70Kenneth S. Abraham, Distributing Risk 48 (1986); cf. Ben-Shahar & Logue, supra note 18, at 230 (“Some of the risks that insurers regulate materialize into harms far into the future, which means that insurers’ efforts to reduce such risks will largely benefit future insurers.”).
- 71Ben-Shahar & Logue, supra note 18, at 230.
- 72Richard A. Posner, Catastrophe 171–72 (2004).
- 73Id. at 172.
- 74Nate Silver, The Signal and the Noise 29 (2012). The distinction traces back to Frank H. Knight, Risk, Uncertainty, and Profit 197–232 (1921); see also Cass R. Sunstein, Worst-Case Scenarios 147 (2007) (describing uncertainty as a situation “where outcomes can be identified but no probabilities can be assigned” and risk as “where outcomes can be identified and probabilities assigned to various outcomes”); id. at 159–62 (defending the distinction). But see Milton Friedman, Price Theory 282 (1976) (challenging the distinction’s validity).
- 75Abraham, supra note 70, at 47.
- 76Samuel R. Gross & Michael Shaffer, Nat’l Registry of Exonerations, Exonerations in the United States, 1989–2012, at 3 (2012), http://www.law.umich.edu/special/exoneration/Documents/exonerations_us_1989_2012_full_report.pdf(https://perma.cc/97NR-SVK7](“[E]ven 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails.”). The rate of exonerations does seem to be increasing, however. See, e.g., Nat’l Registry of Exonerations, The First 1,600 Exonerations 5 (2015), http://www.law.umich.edu/special/exoneration/Documents/1600_Exonerations.pdf(https://perma.cc/AT36-S4WG];Sam R. Gross et al., Exonerations in the United States: 1989 through 2003, 95 J. Crim. L. & Criminology 523, 527 (2005). Perhaps this is not surprising, given that the errors that lead to wrongful convictions are typically systemic, not idiosyncratic. See, e.g., Garrett, supra note 60, at 274; Jennifer E. Laurin, Still Convicting the Innocent, 90 Tex. L. Rev. 1473, 1475 (2012) (book review).
- 77Sunstein, supra note 74, at 21–24. There is a substantial related literature finding that individuals purchase too little insurance against low-probability events. See, e.g., Mark J. Browne, Behavioral Bias and the Demand for Bicycle and Flood Insurance, 50 J. Risk & Uncertainty 141 (2015); Philip T. Ganderton et al., Buying Insurance for Disaster-Type Risks: Experimental Evidence, 20 J. Risk & Uncertainty 271 (2000); Paul Schoemaker & Howard C. Kunreuther, An Experimental Study of Insurance Decisions, 46 J. Risk & Ins. 603 (1979); Paul Slovic et al., Preference for Insuring Against Probable Small Losses: Insurance Implications, 44 J. Risk & Ins. 237 (1977); see also Gary H. McClelland et al., Insurance for Low-Probability Hazards: A Bimodal Response to Unlikely Events, 7 J. Risk & Uncertainty 95 (1993) (finding extreme bimodality in willingness to pay). But see Susan K. Laury et al., Insurance Decisions for Low-Probability Losses, 39 J. Risk & Uncertainty 17 (2009).
- 78Hacala, supra note 57, at 9.
- 79Howard C. Kunreuther & Mark V. Pauly, Behavioral Economics and Insurance: Principles and Solutions, in Research Handbook on the Economics of Insurance Law 15, 21–23 (Daniel Schwarcz & Peter Siegelman eds., 2015); see Kunreuther et al., supra note 67, at 7 (“Insurers . . . misunderstand how to predict rare events and therefore sometimes make decisions that appear to ignore risks altogether. Alternatively, they sometimes fixate on the magnitude of recent losses and claims without weighting these figures by an estimate of the likelihood of another catastrophe occurring.”); Katzman, supra note 69, at 85. This is not to say there are no methods to predict extreme events. See, e.g., Robert Lund, Revenge of the White Swan, 61 Am. Statistician 189, 190 (2007) (discussing extreme value theory, “the statistician’s bible for quantifying rare events”).
- 80Hacala, supra note 57, at 9.
- 81Id.
- 82Abraham, supra note 4, at 944; see also Abraham, supra note 70, at 51 (“[T]he capacity of any system of liability to promote optimal deterrence depends on how predictable liability is.”). Compare Richard Lempert, Low Probability/High Consequence Events: Dilemmas of Damage Compensation, 58 DePaul L. Rev. 357, 385 (2009) (listing reasons, including “psychological denial,” that “make it almost inevitable that insufficient precaution will be taken” against low-probability, high-consequence events), and Katzman, supra note 69, at 83 (“Given a ‘finite reservoir of concern,’ risk managers may pay little attention to low-probability risks, no matter how severe the potential consequences.”), with Eric A. Posner, Probability Errors: Some Positive and Normative Implications for Tort and Contract Law, 11 Sup. Ct. Econ. Rev. 125, 126 (2004) (showing that a “person who discounts remote risks might take too much care, rather than too little”).
- 83Abraham, supra note 70, at 965.
- 84Telephone Interview with Commercial Insurer C (Oct. 26, 2015). I do not mean to suggest there is nothing insurers can do to improve their position vis-à-vis claims arising from actions taken years ago. Some insurers have gone back to shore up their reserves for past coverage years. Id. But this does not reduce the likelihood that harm from past actions will manifest.
- 85For more on methodology, see supra note 5.
- 86See, e.g., Telephone Interview No. 2 with Risk Pool A, supra note 61 (explaining that the pool had never priced the risk or looked at specific loss-prevention measures because it had never considered the risk, which it believed more relevant in big cities and in the South).
- 87Id.; Telephone Interview No. 2 with Commercial Insurer B (Oct. 1, 2015) (speculating that wrongful convictions are not a significant issue for pools his company reinsures because the pools’ members are “puny munis”). But see Telephone Interview with Commercial Insurer D, supra note 44 (reinsures small pools that have encountered wrongful conviction claims).
- 88Telephone Interview with Commercial Insurer D, supra note 44.
- 89Telephone Interview No. 2 with Risk Pool C (Sept. 28, 2015); see also Telephone Interview with Risk Pool E (Oct. 7, 2015) (reporting that wrongful convictions are “just coming onto the radar,” and that an industry conference, last year for the first time, included a session on wrongful convictions, focusing on the duty to disclose exculpatory evidence).
- 90Telephone Interview No. 2 with Risk Pool C, supra note 89; see also Telephone Interview No. 2 with Risk Pool A, supra note 61 (stressing “integrity first in personal and professional behavior”).
- 91Telephone Interview No. 2 with Risk Pool C, supra note 89.
- 92Id. This expert’s admission calls to mind the terrorism context, in which insurers have been similarly unable to gauge risk levels accurately. See Michelle E. Boardman, Known Unknowns: The Illusion of Terrorism Insurance, 93 Geo. L.J. 783, 815–20 (2005) (arguing that terrorism risk is incalculable largely because the data are too scarce and disparate; that insurers are “guessing” on prices, which vary wildly; and that pricing has “not been very scientific” because “underwriters are relying on their experience and instincts”).
- 93Kunreuther & Pauly, supra note 79, at 24.
- 94See Boardman, supra note 92, at 836–42 (discussing the efficiency costs of inaccurate pricing, which sends inaccurate signals about the risk and cost of harm). In theory, insurers could be (unwittingly) charging too much, rather than too little, to cover the risk of wrongful convictions, leading insured municipalities to overinvest in loss prevention. I think this is unlikely, however, and I heard no hint of it during any of my conversations with industry experts.
- 95Kunreuther & Pauly, supra note 79, at 19; see Cass R. Sunstein, Terrorism and Probability Neglect, 26 J. Risk & Uncertainty 121 (2003).
- 96Kunreuther et al., supra note 67, at 221; accord Boardman, supra note 92, at 786–87.
- 97Kunreuther et al., supra note 67, at 221.
- 98See Benjamin J. Richardson, Mandating Environmental Liability Insurance, 12 Duke Envt’l L. & Pol’y F. 293 (2002).
- 99Telephone Interview with Commercial Insurer C, supra note 84; Telephone Interview with Commercial Insurer D, supra note 44. Liability insurance tends to follow an “underwriting cycle” in which “premiums and restrictions on coverage . . . rise and fall as insurers tighten their standards in response to the loss of capital”—called a “hard market”—“or, alternately, loosen their standards in order to maintain or grow market share when new capital enters the market”—a “soft market.” See Tom Baker & Sean J. Griffith, Ensuring Corporate Misconduct: How Liability Insurance Undermines Shareholder Litigation 55 (2010).
- 100For descriptions of the two approaches, see Abraham, supra note 70, at 71–74.
- 101See Garrett, supra note 21, at 103–04 (discussing these and other reforms to reduce the risk of wrongful convictions).
- 102A 1991 study reported that 61.6% of law enforcement liability policies were occurrence-based. ICMA & Wyatt Co., Law Enforcement Officials Liability Insurance: Current Status—1991, at 6 (1991). A more recent publication states that claims-made forms are now more common, but the basis for this assertion is not made plain. See Albert P. Amato, Reinsurance Reference Guide 117 (2012).
- 103Abraham, supra note 70, at 49–50.
- 104Id. at 50.
- 105Id.
- 106Id.
- 107Id.
- 108Kenneth S. Abraham, Insurance Law and Regulation 622 (5th ed. 2010); see also Jaap Spier, Long Tail (Liability) Risks and Claims Made Policies, 23 Geneva Papers on Risk & Ins. 152 (1998). More generally, claims-made policies work well to reduce the problem of insuring correlated risk. See Doherty & Dionne, supra note 63, at 198; see also Neil A. Doherty, The Design of Insurance Contracts When Liability Rules Are Unstable, 58 J. Risk & Ins. 227 (1991). Municipal risk pools, which are essentially small mutual insurers, may have less need to use a claims-made policy, as the mutual form may accomplish similar objectives. See Doherty & Dionne, supra note 63, at 196–97.
- 109Abraham, supra note 70, at 50.
- 110Id.; see also Katzman, supra note 69, at 88 (asserting that, under claims-made policies, “current premiums are not easily affected by current risk management practices”).
- 111Abraham, supra note 70, at 50.
- 112Id.
- 113Id. at 51.
- 114See Telephone Interview with Commercial Insurer D, supra note 44; cf. Katzman, supra note 69, at 87 (describing how environmental impairment liability is excluded from occurrence-based general liability policies and written separately on a claims-made basis).
- 115See Lempert, supra note 82, at 385 (arguing that government planning and regulation is necessary to control low-probability, high-consequence events).
- 116See, e.g., Gould et al., supra note 59, at 97–101; Int’l Ass’n of Chiefs of Police & Office of Justice Programs, U.S. Dep’t of Justice, National Summit on Wrongful Convictions: Building a Systemic Approach To Prevent Wrongful Convictions (2013), http://www.innocenceproject.org /files/imported/wrongful_
convictions_summit_report_2013.pdf (https://perma.cc/Y3NW-HTTF];Garrett, supra note 21, at 103–06 (detailing reforms and describing them as “inexpensive and easy to adopt”). - 117See Rappaport, supra note 8, at 252–54.
- 118See generally id.
- 119Cf. Kami Chavis Simmons, Cooperative Federalism and Police Reform: Using Congressional Spending Power To Promote Police Accountability, 62 Ala. L. Rev. 351 (2011).
- 120See, e.g., Matthieu Bussière & Marcel Fratzscher, Low Probability, High Impact: Policy Making and Extreme Events, 30 J. Pol’y Modeling 111 (2008). To some extent, we see this occasionally already. See, e.g., Jess Bidgood, Massachusetts Justices Clear Way for New Trials in Cases Chemist May Have Tainted, N.Y. Times, May 19, 2015, at A11 (describing decision to allow thousands of defendants whose cases may have been tainted by a state chemist’s work to seek new trials); Steve Mills & Ken Armstrong, Hard Calls Face Ryan in Death Row Review, Chi. Trib., Mar. 5, 2002 (describing the Illinois governor’s pledge to review the cases of all 159 death row inmates due partly to concerns about wrongful convictions stemming from systemic flaws).
- 121See Ronald Jay Allen et al., Criminal Procedure: Investigation and Right to Counsel 337 (3d ed. 2016) (“The typical Fourth Amendment case—say, a gratuitous frisk or car search—does not involve the kind of physical injury or property damage that would translate into significant money damages . . . .”).
- 122See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986) (holding that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages”).
- 123Carey v. Piphus, 435 U.S. 247, 248, 263–67 (1978) (holding that, “in the absence of proof of actual injury. . . only nominal damages” are due for a procedural due process violation).
- 124See, e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613–14 (1989) (stating that “the [Fourth] Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction”). Ironically, in the very decision that condoned the stop-and-frisk maneuver, laying the groundwork for controversial “order maintenance” policing programs, the Supreme Court articulated quite sharply the personal harms a frisk inflicts:
[I]t is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
Terry v. Ohio, 392 U.S. 1, 16–17 (1968) (footnote omitted).
- 125Terry, 392 U.S. at 20–22.
- 126Technically, a Miranda violation is not itself a constitutional violation. See Chavez v. Martinez, 538 U.S. 760 (2003). But even if it were, it is hard to see why damages would be more than nominal.
- 127See Robert V. Percival & Geoffrey P. Miller, The Role of Attorney Fee Shifting in Public Interest Litigation, 47 Law & Contemp. Probs. 233, 239–41 (1984).
- 128See Farrar v. Hobby, 506 U.S. 103, 114–15 (1992) (holding that, when recovery of damages is the purpose of a suit, the fee award should depend on “the amount of damages awarded as compared to the amount sought,” and that plaintiffs who seek compensatory damages but receive only nominal damages “often” should receive “no attorney’s fees at all” (quoting City of Riverside v. Rivera, 477 U.S. 561, 585 (Powell, J., concurring in judgment))). Notwithstanding Farrar, “there are circumstances where a judgment of nominal damages will support an award of attorneys’ fees, based on the vindication of important constitutional rights.” Michael Avery et al., Police Misconduct: Law and Litigation 974 (3d ed. 2015). Even so, defendants are permitted to condition settlement of civil rights cases on the waiver or reduction of attorney fees, which, by some accounts, has “destroyed section 1983 as a remedy for civil rights plaintiffs with only modest damages.” Reingold, supra note 3, at 4.
- 129See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Rizzo v. Goode, 423 U.S. 362 (1976); O’Shea v. Littleton, 414 U.S. 488 (1974).
- 130See, e.g., Nat’l Cas. Co., supra note 17, at 2 (excluding from coverage “‘claim(s),’ demands, or actions seeking relief or redress in any form other than monetary damages”).
- 131See, e.g., Telephone Interview with Commercial Insurer A, supra note 41 (stressing importance of deductibles and self-insured retentions for effective risk management).
- 132See, e.g., Ind. Mun. Ins. Program, supra note 24 (advertising police training videos covering Terry and Miranda).
- 133See, e.g., Chavez v. Martinez, 538 U.S. 760, 798–99 (2003) (Kennedy, J., concurring in part and dissenting in part).
- 134See generally Meltzer, supra note 14.
- 135Leong, supra note 13, at 425.
- 136See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).
- 137For a proposal on how to extract the greatest returns from the limited resources available for § 14141 litigation, see Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1 (2009).
- 138See, e.g., Floyd, 959 F. Supp. 2d at 559–60 (finding that, during an eight-year period in New York City, “at least 200,000 stops were made without reasonable suspicion,” and “[t]he actual number of stops lacking reasonable suspicion was likely far higher”).
- 139See generally Rappaport, supra note 8.
- 140See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (stating that “the Constitution prohibits selective enforcement of the law based on considerations such as race”).
- 141Stipulation and Order of Settlement and Discontinuance at 2, Sultan v. Kelly, No. 09-CV-00698 (RJD) (RER) (E.D.N.Y. June 30, 2009).
- 142Telephone Interview with Commercial Insurer D, supra note 44 (asserting that $100,000 is a common self-insured retention among his company’s policyholders).
- 143See, e.g., Settlement Agreement at 1–2, Md. State Conf. of NAACP Branches v. Md. State Police, No. FPS-98-1098 (D. Md. Apr. 3, 2008) (agreeing to settle the claims of six plaintiffs for $300,000 total); Settlement Agreement at 7, Wilkins v. Md. State Police, No. MJG-93-468 (D. Md. Jan. 5, 1995) (settling the claims of four plaintiffs for $12,500 per plaintiff ); ACLU, ACLU of NJ Wins $775,000 for Victims of Racial Profiling by State Troopers (Jan. 13, 2003), https://www.aclu.org /news/aclu-nj-wins-775000-victims-racial-profiling-state-troopers(https://perma.cc/3ZDZ-URSF](awarding majority of plaintiffs around $31,000 each).
- 144See, e.g., Gousse v. City of Los Angeles, No. B174896, 2007 Cal. App. Unpub. LEXIS 2882 (Cal. Ct. App. Apr. 10, 2007) (affirming trial court’s decision to grant a new trial on damages after a jury awarded $33,000,000 to a urological surgeon who claimed lost earning capacity, among other damages); ACLU, supra note 143 (reporting having settled claims of two plaintiffs who were beaten and held at gunpoint for $200,000 each).
- 145See, e.g., The Leadership Conference, Restoring a National Consensus: The Need to End Racial Profiling in America (Mar. 2011), http://www.civilrights.org /publications/reports/racial-profiling2011/racial_profiling2011.pdf(https://perma.cc/4EUN-JNWN](collecting evidence); Ian Ayres, Racial Profiling in L.A.: The Numbers Don’t Lie, L.A. Times, Oct. 23, 2008.
- 146Recall that most policies do not cover defense against suits for declaratory and injunctive relief. See supra note 129.
- 147Susan Kostro, Police Excessive Force Raises Liability Risk Scrutiny, Ironshore
(Oct. 1, 2015), http://www.ironshore.com/blog /police-excessive-force-raises-liability-risk-scrutiny(https://perma.cc/RFP7-4PUG). - 148Telephone Interview with Risk Pool D, supra note 27; Telephone Interview with Risk Pool E, supra note 89.
- 149Gallagher, supra note 19, at 52; see also Girod, supra note 19, at 163 (declining to list racial profiling among fourteen “most common [types of] ‘actionable conduct’ involving civil rights liability” for police).
- 150See, e.g., Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003).
- 151See, e.g., id. (“In general, the absence of an overtly discriminatory policy or of direct evidence of police motivation results in most claims being based on statistical comparisons between the number of black or other minority Americans stopped or arrested and their percentage in some measure of the relevant population.”); David Rudovsky, Litigating Civil Rights Cases to Reform Racially Biased Criminal Justice Practices, 39 Colum. Hum. Rts. L. Rev. 97, 109–12 (2007) (“[W]here discrimination is sufficiently ‘clandestine and covert,’ statistical evidence of a discriminatory pattern is the ‘only available avenue of proof.’” (quoting Int’l Bd. of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977))); Brian L. Withrow & Jeffrey Doug Dailey, Racial Profiling Litigation: Current Status and Emerging Controversies, 28 J. Contemp. Crim. Just. 122, 130 (2012). Fourth Amendment doctrine regards discriminatory intent as irrelevant; as long as the police have sufficient cause to, say, pull over a vehicle, it matters not whether the driver’s race supplies their true motive for the stop. Whren v. United States, 517 U.S. 806, 813 (1996).
- 152Dique v. N.J. State Police, 603 F.3d 181, 184 (3d Cir. 2010).
- 153See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 558–60, 572 n.100, 590 (S.D.N.Y. 2013) (relying, in a lawsuit filed in 2008, on data and expert analysis reaching to January 2004, a state attorney general report from 1999, and evidence of “more than a decade” of institutional indifference); Floyd v. City of New York, 283 F.R.D. 153, 160 (S.D.N.Y. 2012) (certifying a class covering individuals stopped by police beginning in 2005); Complaint at 9–13, Floyd v. City of New York, No. 08 Civ. 1034 (SAS) (S.D.N.Y. Jan. 31, 2008) (connecting present-day allegations to history of police activity dating to the 1970s).
- 154First Amended Complaint at 6, 16, Rodriguez v. Cal. Hwy. Patrol, No. 5:99-CV-20895-JF (N.D. Cal. Nov. 30, 1999).
- 155Id. at 6–7.
- 156Id. at 7.
- 157See supra pp. 386–92.
- 158See, e.g., Nick Pinto, The Bail Trap, N.Y. Times Mag., Aug. 13, 2015, at MM38.
- 159See Armstrong v. United States, 517 U.S. 456 (1996) (denying defendants discovery on selective prosecution claims unless they can show that the government declined to prosecute similarly situated suspects of other races). Courts are divided on whether (and how) the Armstrong standard applies in the selective enforcement (i.e., policing) context. See Jody Feder, Cong. Research Serv., RL31130, Racial Profiling: Legal and Constitutional Issues 6–9 (2012).
- 160My research uncovered no complete victories by criminal defendants based on racial profiling under either state or federal law. New Jersey courts have granted motions to suppress evidence based on state-law equal protection violations, though even these partial victories are rare. See, e.g., State v. Segars, 799 A.2d 541, 552 (N.J. 2002) (“This is a very unusual case. Without Officer Williams’s repudiated testimony, the evidence produced by Segars that Officer Williams saw him prior to the MDT check would have been completely inadequate to support an inference of discriminatory enforcement.”); State v. Soto, 734 A.2d 350 (N.J. Super. Ct. 1996); see also David A. Harris, Racial Profiling Redux, 22 St. Louis U. Pub. L. Rev. 73, 77–79 (2003) (characterizing as unsurprising the “lack of litigation success in suits against racial profiling,” and crediting “unusual circumstances” for successes in Soto and a famous civil case); Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1427 (2013) (“Only New Jersey courts have granted motions to suppress in Fourteenth Amendment equal protection claims, based on their interpretation of the New Jersey Constitution.” (footnote omitted)).
- 161See, e.g., Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) (upholding part of a permanent injunction); Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (entering a permanent injunction); see also Arnold v. Ariz. Dep’t of Pub. Safety, No. CV–01–1463–PHX–LOA, U.S. Dist. LEXIS 53315 (D. Ariz. July 31, 2006) (affirming a settlement agreement containing extensive prospective relief, including modifications to police procedures and training requirements); In re Cincinnati Policing, 209 F.R.D. 395 (S.D. Ohio 2002) (similar). On the general difficulty of litigating racial profiling claims effectively, see David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 40 (1999); Albert W. Alschuler, Racial Profiling and the Constitution, 2002 U. Chi. Legal F. 163, 245, 248; Harris, supra note 160, at 78; Kevin R. Johnson, Racial Profiling in America, 98 Geo. L.J. 1005, 1069, 1069 n.394 (2011); Kami Chavis Simmons, Beginning To End Racial Profiling: Definitive Solutions to an Elusive Problem, 18 Wash. & Lee J. Civil Rts. & Soc. Just. 25, 37 (2011).
- 162NAACP, Born Suspect: Stop-and-Frisk Abuses and the Continued Fight
To End Racial Profiling in America 19 (Sept. 2014), http://action.naacp.org /page/-/Criminal%20Justice/Born_Suspect_Report_final_web.pdf(https://perma.cc/T54T-KVU2). - 163Id. at Appx. II (listing, among essential components of an effective racial profiling law, “funds for periodically retraining officers and installing in-car video cameras, body-worn cameras, and gun cameras”); see L. Song Richardson, Police Racial Violence: Lessons From Social Psychology, 83 Fordham L. Rev. 2961, 2975–76 (2015) (describing the Fair and Impartial Policing program, which educates agencies about implicit bias); Robert J. Smith, Keynote Address, Reducing Racially Disparate Policing Outcomes: Is Implicit Bias Training the Answer?, 37 Haw. L. Rev. 295, 300 (2015) (describing implicit bias training as an “ascendant idea in policing and scholarly circles” and providing citations); Implicit Bias, Nat’l Initiative for Building Cmty. Trust & Just., http://trustandjustice.org /resources/intervention/implicit-bias(https://perma.cc/T8XH-Y2A8](last visited Dec. 19, 2015) (discussing implicit bias interventions and collecting academic research); Press Release, State of Cal. Dep’t of Justice, Attorney General Kamala D. Harris Kicks Off First-of-its-Kind Law Enforcement Training on Implicit Bias & Procedural Justice (Nov. 17, 2015), https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-kicks-first-its-kind-law-enforcement-training(https://perma.cc/ZJ8T-XBM5).
- 164See, e.g., John J. Donohue III & Steven D. Levitt, The Impact of Race on Policing and Arrests, 44 J.L. & Econ. 367, 371 & tbl. 2 (2001) (finding that “an increase in the number of white police is associated with more arrests of minorities but little change in white arrests,” while “an increase in minority officers is associated with more white arrests but not more minority arrests”); Joscha Legewi & Jeffrey Fagan, Group Threat, Police Officer Diversity and the Deadly Use of Force (Columbia Law Sch. Pub. Law Research Paper No. 14-512, 2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2778692(finding that a diverse police force reduces the influence of group threat, lowering the number of officer-involved killings of African Americans); see also Lorie Fridell et al., Racially Biased Policing: A Principled Response 68–78 (2008) (arguing that hiring a racially diverse police force can help reduce racial bias in policing); Robert J. Friedrich, Police Use of Force: Individuals, Situations, and Organizations, 452 Annals Am. Acad. Pol. & Soc. Sci. 82, 90 (1980) (finding that biracial teams of partners use less force). Overall, however, the empirical evidence regarding the performance effects of having a diverse police force is mixed. See David A. Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209, 1224–25, 1229, 1230 (2006) (reviewing studies).
- 165See U.S. Dep’t of Justice, Guidance For Federal Law Enforcement Agencies Regarding The Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity (2014); see also NAACP, supra note 162, at 18–19 (describing repeated attempts to pass federal legislation); Letter from The Leadership Conference to Barack Obama, President of the U.S. (Feb. 24, 2015), http://civilrightsdocs.info/pdf/Sign-On-Letter-Re-DOJ-Guidance-Revisions.pdf(https://perma.cc/AR6Q-8EEH](conveying the “serious concerns” of eighty public interest groups about the DOJ’s 2014 guidance).
- 166President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 28 (2015).
- 167See Rappaport, supra note 8, at 269.
- 168See, e.g., Smith, supra note 163, at 302 (noting that, despite the growing popularity of implicit bias training, when it comes to efficacy, “empirical support is lacking”); Jack Glaser, How to Reduce Racial Profiling, Greater Good (May 28, 2015) http://greatergood.berkeley.edu/article/
item/how_reduce_racial_profiling (https://perma.cc/7UQW-T5ZA](maintaining that, “to date, research has yet to uncover a straightforward method that can lastingly mitigate implicit biases” that result in racial profiling). - 169See Isaiah Berlin, The Hedgehog and the Fox 1 (Henry Hardy ed., Princeton Univ. Press 2013) (1953) (“The fox knows many things, but the hedgehog knows one big thing.”).