Free Market Solution to a Constitutional Problem

Free Market Solution to a Constitutional Problem

by Jeff Harrison  

America is a special country that holds the government to a high standard with the extraordinary powers in the U.S. Constitution.  When people think of the Constitution and the Rights that the Amendments lay out, they may think that our Rights are some kind of gift from an all powerful government.  This is exactly the opposite of what the Constitution is for Americans.  The Constitution outlines the limits We The People put on the government.  The Constitution is telling the government that Americans will not ALLOW you to take away our Free Speech, we will not ALLOW you to take away our ability to defend ourselves and we DEMAND Due Process.  Another way to look at the Constitution is its laws the government must follow.  

Thomas Jefferson said, “We bind the government in the chains of the Constitution.”  The Declaration of Independence stated - “Governments are instituted among men, deriving their just powers from the consent of the governed.”  You and I are the governed.  As Americans we have a responsibility to demand the highest of standards on our government.  The Bill of Rights is not a gift.  It’s our demands on the government that shall not be violated.  

What is the Government?

The government is a system of control with laws, buildings, weapons and humans.  Humans are the weak link in the government.  James Madison, Father of the Constitution, said - “If men were angels, no government would be necessary.  If angels were to govern men neither external nor internal controls on government would be necessary.”  In other words, humans are flawed and need to have constraints on their power.  The Amendments in the Constitution are the constraints on the government.  Since humans are the government, anyone representing the government has a responsibility to follow all the limitations We The People put on them in the Constitution.  If a human representing the government violates an American’s Constitutional Rights, that human can be held personally accountable in the court of law both criminally and civilly.  They can go to prison and/or have a financial judgment placed on them personally.  This is the enforcement mechanism Americans have to keep the government within the limitations of the Constitution.  Without a way to enforce the Constitution, it’s not worth the paper it is written on.  

Fourth Amendment

This is the primary amendment that sets the limitations on how government officials can interact with American citizens.  Here’s exactly what it says -       

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.  

When it comes to law enforcement officers the most important part is “Unreasonable Seizures” or another term is “Excessive Force”.  Let’s break this down.  It’s not saying law enforcement officers must use zero force.  It’s actually saying the opposite.  It’s giving officers the authority to use force to arrest an American citizen as long as the force is reasonable.  So what’s reasonable?  This is of course a gray area and the entire reason we have a judicial system.  If an American feels a law enforcement officer used unreasonable force, they have the power to sue the individual officer both criminally and civilly.  If the judge and jury find that the officer used perfectly reasonable force, nothing happens to the officer.  However, if the officer is found to have used unreasonable force, they can go to prison and/or have a financial judgment placed on them personally.  Law enforcement officers do go to prison for unreasonable force.  However, law enforcement officers responsible for a financial judgment almost never pay a dime towards it.  The municipality will use tax dollars to voluntarily pay the judgment even when there is no vicarious liability on the taxpayer to pay.

Constitutional Problem

The mechanism to enforce a civil judgment placed on an individual law enforcement officer is broken.  When the burden of the judgment is not placed on the person responsible, then how is the Constitution enforced?  Placing the financial burden of a civil judgment on the taxpayer is a complete distortion of the Constitution.  It undermines all the special powers We The People have in the Constitution.  It’s kind of like the saying, “If a tree falls in the forest and no one is around, does it make a sound?”  In this case it’s “if a law is not enforced, does it exist?”  Americans have high standards.  We all have a responsibility to ensure that the powers the Constitution grants all American citizens are honored.  

How Did This Happen?

There are many factors that eroded the enforcing powers of the Constitution over the years.  

Pro-Police Sentiment- Police officers take huge physical risks to protect Americans every day which is heroic and has earned respect.  However, there is nothing Pro-Police about rewarding officers that fall short of the high standards the Constitution places on them by using tax dollars to pay 100% of a judgment that is placed on the individual officer.  It’s actually Anti-Police because it undermines the values of heroic officers.  

Tough On Crime Sentiment - Being tough on crime and enforcing the high standards in the Constitution for government officials are two separate issues.  You can do both at the same time.  Just because there are criminals in the private sector doesn’t mean the public sector can have unlimited power.  Otherwise, we will have criminals in the private sector and legalized criminals in the public sector.    

Status Quo - We have been doing it this way for years so what’s the problem.  There is no duration of time that makes something wrong, right.  Continuing down a path that is clearly wrong is complete nonsense and goes against everything America is about.  If America’s Founding Fathers thought this way, we would still be Colonies under English rule.  The crazy thing is Americans don’t need to fight a bloody war to gain the powers of liberty in the Constitution.  We already have them.  

Economics - This is most likely the biggest reason why law enforcement officers have not been contributing a dime to judgments placed on them.  Judgments can be multiples of what an average law enforcement officer earns in a year.  For example, George Floyd’s family was awarded a settlement of $27 million.  This would bankrupt any officer and the victim would never receive a dime.  However, huge settlements/judgments placed on an individual law enforcement officer doesn’t void the powers of the Constitution.

Solution

Make law enforcement officers 100% responsible for the first $25,000 of a settlement/judgment.  Anything above $25,000 will be the responsibility of the Police Department that hired, trained and put the officer in the field.  This enforces the Constitution on the individual government official that fell short of the high standards placed on them.  It respects the economic realities of law enforcement officers.  It also makes sure that victims receive the funds they were awarded.

Why $25,000?

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 that was found to have fallen short of the high standards placed on them in the Constitution by a judge and jury.  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.    

Law Enforcement Liability Insurance  

Insurance is uniquely designed to benefit all parties.  It provides a way for the law enforcement industry to collectively share the risk of officers that fall short of the high standards the profession demands.  It’s “Collective Responsibility” in the law enforcement industry.  It allows the powers all Americans are granted in the Constitution to be enforced properly.  It lowers the amount of tax dollars going towards settlements/judgments for Constitutional violations.  It ensures that plaintiffs awarded a settlement/judgment will receive the full amount an officer is required to pay.

Conclusion

James Madison said it best, “If angels were to govern men neither external nor internal controls on government would be necessary.”  Unfortunately, the American government is run by humans not angels.  Humans are flawed with self interest.  You can wish for a government of angels that will never abuse their power or you can enforce the limitations the Constitution puts on the humans that make up the government.  The Status Quo is not enforcing the Constitution and we see the results.  Law enforcement officers being 100% responsible for the first $25,000 of a settlement/judgment will ensure that the Constitution is enforced and economic realities are respected.  We all have the responsibility to ensure that the powers the Constitution grants all American citizens are enforced.  We already have the power to fix this today!  

Law Enforcement Liability Insurance