Control The Cap - Control Law Enforcement’s Future
by Jeff Harrison
Controlling the liability cap for law enforcement officers is the most important issue for officers today and nobody is even talking about it. The reason it is silent is because the law enforcement industry is still fighting the last war. It’s time to move forward and win the current war by controlling the liability cap. The law enforcement industry is powerful enough to take control of the liability cap and secure the financial future for the law enforcement industry for generations.
The law enforcement industry can take control of the liability cap by making the Power Move of voluntarily purchasing liability insurance with $25,000 of coverage today. This will effectively set the liability cap giving the law enforcement industry the upper hand. The law enforcement industry will be leading and controlling the situation. The cost of this Power Move for each individual officer is only $25 per month. Prymus Insurance already has a law enforcement liability insurance policy with $25,000 of coverage.
I can already hear a veteran law enforcement officer saying, “This whole talk of carrying liability insurance is nonsense. I've been an officer for many years without one issue. Plus, I have a back the blue politician in office that is tough on crime that will make sure I never go to court. Thanks but I’m good.” I understand this thought process and agree that the past supports this way of thinking. However, we can all agree that many changes have occurred since 2020 that have added pressure to the law enforcement profession. Below I will explain the financial risk police officers actually face, history of liability caps and how liability caps will protect the future of law enforcement. I think you’ll see that carrying liability insurance is the veteran move because it protects your future and the future of the law enforcement industry for generations.
Part 1 - Law Enforcement Officer’s Financial Risk
Law enforcement officers are in the riskiest financial position in the history of the profession. The profession is in a state of adjustment with many known risks, unknown risks, and pure myths.
Qualified Immunity
This is the biggest myth in the law enforcement industry. Qualified Immunity does NOT mean Police Immunity. You are NOT immune from being sued by anyone. The confusion comes from the word “Qualified” in Qualified Immunity. You do NOT “Qualify” because you are a law enforcement officer. The word “Qualified” means an officer's actions must “Qualify” for “Immunity” by a judge. If a judge feels an officer’s actions “Qualify” for “Immunity” then the officer will not go to trial. However, if the judge thinks the officer doesn’t “Qualify” for “Immunity” then they will go to trial. Police Officers must perform at the high standards set in the Constitution. There is NO shield or protection from the Constitution for any government official. Officers are denied Qualified Immunity every single day.
Personally Liable 100%
Law enforcement officers are 100% personally liable when they deprive an American of their Constitutional Rights. It never falls onto your employer. Let me say this another way….the police department or municipality is never liable for your actions. I can already hear you saying, “That’s not true. An employee is only doing their job and the company is liable.” Yes, in the private sector that is true. An employee in the private sector transfers liability for a negligent error or omission to their employer because it’s implied that the employer asked the employee to do something. For example, an employer asks an employee to dig a hole and it cuts the power off for a restaurant next door. The restaurant can sue the company that employed the worker for the lost earnings. The legal term for this is Respondeat Superior. This is latin for “let the master answer”. Law enforcement officers cannot transfer liability to anyone or any entity.
When a citizen feels their Constitutional Rights have been violated they can sue the individual law enforcement officer under a Section 1983. If it is found that the individual officer did violate an American’s Constitutional Right, the officer is 100% responsible for anything the judge places on them. The same citizen can also sue the municipality under a Section 1983 which is called a Monell. In this case, the citizen needs to prove that the municipality was responsible for policies or training that caused the law enforcement officer to take away an American’s Constitutional Rights. The U.S. Supreme Court decided in Monell v. Department of Social Services that Congress intended for Section 1983 to impose liability on a municipality for its “own actions” but not for the “acts of others”. Therefore, a municipality or police department is not vicariously liable for the actions of law enforcement officers, but municipalities can be held directly liable if their policy or training caused the deprivation of Constitutional Rights.
It’s a complete myth that law enforcement officers can transfer liability for their actions to anyone or any entity. Law enforcement officers are always 100% personally liable.
Indemnification
Let’s imagine that you are a law enforcement officer that was denied Qualified Immunity, sued under Section 1983 and now liable to pay a financial judgment. Now what do you do? At this point, there is no law that says anyone is responsible to pay except the officer with the judgment. What will happen is the officer will ask the municipality to pay their judgment. History has shown that most of the time the municipality voluntarily pays the judgment with tax dollars even when they have zero legal liability to pay a dime. Of course, this completely goes against the intended purpose of Section 1983 which is to enforce an American’s Constitutional Rights being violated by an individual or public entity, but that’s another subject altogether. In some states and cities they will have either a statute, policy or contract with the police union to indemnify officers. However, this is not a 100% guarantee of indemnification. Here are some examples -
California has a statute called Government Code Section 825 that will pay Section 1983 judgments for a law enforcement officer. However, Los Angeles County Sheriff’s Deputies David Chang, Anthony Pimentel and Kris Cordova were all denied indemnification by Los Angeles County and were responsible for the entire $451,086.47 judgment. Right about now you are thinking….wait a second the County has an obligation to pay this judgment under Section 825. Here’s the twist - Section 825 has subsection 825.2 that states the County has the right to not indemnify these officers because they acted in actual malice, corruption or actual fraud. The three officers sued the County saying they were owed indemnification but the court ruled that Los Angeles County was not obligated to pay the three officers $451,086.47 judgment. It was 100% on Deputies David Chang, Anthony Pimentel and Kris Cordova to pay.
Stephen Todd, Chicago Police Officer for 18 years, was sued under a Section 1983 by Glenn Weeks for excessive force and unlawful detainment. Weeks was awarded a $31,967.02 judgment that Todd was 100% responsible to pay even though Illinois has a statute to indemnify law enforcement officers. Todd ultimately filed for bankruptcy and I go into that in more detail below.
Contributing to a settlement or judgment happens as well. Many places will make the law enforcement officer pay a portion of the settlement or judgment. It can range from $300 to $25,000. February 2022, Brooklyn New York officer was required to contribute $3,000 to a $375,000 settlement for violating a protester’s Constitutional Rights at a George Floyd protest in 2020.
There are also cities that have statutes that claim they will never indemnify any law enforcement officer. The reality is municipalities have zero legal obligation to pay a settlement or judgment for any law enforcement officer. Even if they have a statute, policy, contract with a police union to indemnify that is not a guarantee. When a judge and jury find an officer violated an American’s Constitutional Rights, the judgment is on the law enforcement officer personally 100% to pay. If the municipality uses tax dollars to pay it, they are doing that voluntarily and without the consent of the taxpayers.
It’s a complete myth that officers are entitled to have the taxpayer pay their judgment.
Bankruptcy
Right about now you are thinking - “Ok, I understand that Qualified Immunity is not a given which could get me into court and yes, I understand that I’m personally liable 100% for my actions and I understand that the municipality has no legal liability to pay my judgment. What’s the big deal because I can just file bankruptcy and wash my hands of this entire financial mess.” I hate to throw cold water on this “Solution” but a Section 1983 judgment against an individual is nondischargeable debt. The Bankruptcy Code contains an exception to discharge for debts “for willful and malicious injury by the debtor to another entity or to the property of another entity.” In other words, you are going to pay it no matter what. You will have a payment plan set up or the court will garnish your wages. Either way you are paying.
Remember the Chicago Police Officer, Stephen Todd, with his $31,967.02 Section 1983 judgment to Glenn Weeks? He tried to go bankrupt to wipe out this debt to Mr. Weeks. They went to Court and Todd was denied the ability to discharge his debt to Weeks. The Court garnished Todd’s wages for years until his debt to Mr. Weeks were paid in full. Glenn Weeks v. Stephen Todd No. 86 B 5705
Talia Thornton was a prisoner in Philadelphia where correctional officer, Daryl Watson, was found liable under Section 1983 of treating Thornton with excessive force and subjecting her to cruel and unusual punishment. Watson tried to discharge his judgment debt to Thornton through bankruptcy. That was denied by the Court and Watson had his wages garnished for years until his debt to Thornton was paid in full. Thornton v. City of Philadelphia No. 04-2536
It’s a complete myth that bankruptcy will wipe out any legal liability judgment. It’s nondischargeable debt.
Law enforcement officers are extremely vulnerable now and getting more vulnerable everyday. You can accept the true financial risks of your situation or bury your head into the sand. Either way the world is moving forward.
Part 2 - Liability Cap Solution
There is a path forward that will benefit all parties. It has already been proven effective in other industries. Set a Liability Cap on damages for law enforcement officers to clarify the true financial risk.
What is a Liability Cap?
A liability cap on damages is essentially a ceiling on how high a financial judgment can be placed by a jury verdict. They are extremely common in most professions including medical malpractice.
Medical Malpractice Liability Cap History
Physicians are the closest to law enforcement because they both have a duty of care or ‘common calling’ to exercise care and prudence as a profession. Other professions are liable only if an express promise had been made to achieve or avoid a certain result. This holds physicians and officers to a separate standard because of the nature of their profession.
The first recorded medical malpractice lawsuit in America was five years after George Washington’s inauguration. A man sued the surgeon who operated on his wife and caused her to die and was awarded 40 pounds. Abraham Lincoln was a distinguished medical malpractice attorney, taking on cases for physicians and patients alike. Liability insurance got into the mix in 1908 with the establishment of Massachusetts Medical Insurance Society. The 1960’s were a critical moment in the history of medical malpractice because damage awards increased exponentially. Five of the ten highest paid claims of all time happened in the 1960s with one mother awarded $74.5 million after her child was born with cerebral palsy and the physician falsified records. As juries began to award substantial damages to injured plaintiffs, liability insurance for physicians increased. Physicians and other medical professionals passed these costs along to patients, resulting in higher costs for healthcare. Accessibility to health care was then directly affected by medical malpractice litigation. It all came to a head in the mid-1970s
In the mid-1970s, the medical malpractice industry went through a crisis. The costs were getting out of hand with insurance premiums rocketing and insurance companies were getting out of the business. Many states introduced medical malpractice reform acts that imposed liability caps on damages. The caps limited the amount of money a plaintiff could collect should they win their malpractice case. Caps are set on a state by state basis but the average is $250,000. A handful of states adopted a Patient Compensation Fund, to which all physicians in that state must contribute. The physician must carry $100,000 worth of insurance and the Patient Compensation Fund will cover anything above $100,000. Some states will also have an overall cap. Medical malpractice had another crisis in the mid-1980s and the early 2000s. The solution to all of these crises was liability caps on damages.
Where is Law Enforcement Today?
The law enforcement industry is in the same place today as the medical malpractice was in the 1960’s. No cap and lawsuit awards are skyrocketing. Just as the highest medical malpractice was awarded in the 1960s - $75 million, the 2020s are having the highest law enforcement awards ever. For example, George Floyd’s family was awarded $27 million and Breonna Taylor’s family received $12 million. With zero cap set on damages juries are doing the same thing now as they did in the 1960s. This is obviously unsustainable for individual officers and municipalities. However, there is a simple solution - Liability Cap.
Law Enforcement Solution
Liability Cap of $25,000 for an individual law enforcement officer. The officer will be responsible for the first $25,000 and anything above $25,000 will be the responsibility of the Police Department much like the Patient Compensation Fund in medical malpractice. This is exactly what many states over the past 50 years have decided works the best for the physician, patient and insurance company. No reason to reinvent the wheel.
Why $25,000 Liability Cap?
Contrary to the headline generating amounts like the $27 million to the family of George Floyd and $12 million to Breonna Taylor’s family, these are extremely rare amounts. The median amount of settlements/judgments on law enforcement officers is $17,500 based on a Washington Post Study of 40,000 cases over 10 years. Professor Schwartz published in her detailed law review “Police Indemnification” that between 2006-2011 New York’s median payout was $20,000. This means that over half of the settlements/judgments would have been paid 100% by the officer with zero tax dollars used. Colorado set the precedent of law enforcement officers being financially liable for a maximum of $25,000 in Senate Bill 217 that passed June 19, 2020. $25,000 is the right Liability Cap for law enforcement officers.
Power Move
Prymus Insurance already has a law enforcement liability insurance with $25,000 of coverage. This means that the law enforcement industry can take control of the liability cap by getting coverage today. This will effectively set the liability cap giving the law enforcement industry the upper hand. The law enforcement industry will be controlling the situation. The cost of this Power Move is only $25 per month.
Conclusion
Controlling the liability cap for law enforcement officers is the most important issue for law enforcement officers today. Medical malpractice has provided a roadmap to a real solution for all parties that has been proven successful. The law enforcement industry is powerful enough to take control of the financial liability cap on damages today. Once the liability cap is set, it will secure the financial future for the law enforcement industry for generations.
Control the Cap - Control Law Enforcement’s Future