Law enforcement misconduct claim payouts risingPosted On: Jun. 12, 2019 11:54 AM CST
ORLANDO, Fla. — Municipalities and insurers are seeing rising costs and payouts from law enforcement claims amid heightened public focus on accountability for police misconduct, experts say.
Meanwhile, the U.S. Supreme Court and federal appellate courts have quietly expanded protections for government officials, experts said Monday at the Public Risk Management Association’s annual conference in Orlando.
“In the last five years, public opinion about police conduct in this country has started exploding,” said Michael Otworth, Stamford, Connecticut-based vice president/senior unit claim manager at Genesis Management and Insurance Services Corp.
Controversial cases dealing with excessive force by police, including Michael Brown's death in Ferguson, Missouri, in 2014, have led to a loss of confidence in local police in communities, Mr. Otworth said during the session Five Years After Ferguson: The Quiet Transformation of Qualified Immunity.
In the same period, the social movement Black Lives Matter has taken off, he said.
“Historically we’re looking at the highest payouts for law enforcement that we’ve seen in a long time,” said Mr. Otworth.
“How did we get here? Where are we going? …Has there been a change in police behavior or are we looking at things differently? These are easy questions, but they don’t have easy answers,” he said.
Benjamin Eggert, Washington, D.C.-based attorney at Wiley Rein LLP, said: “Black Lives Matter premised on the idea of insufficient accountability by police. When you’re looking at data on shootings and payouts and lawsuits, you’re looking at mechanisms for that.”
While media tends to focus on data from major cities such as Chicago, Los Angeles and New York, “some 78% of officers serve localities with 1 million or less, 66% or two-thirds are serving in towns with 500,000 or less and 46% of officers serve localities with 100,000 or less,” said Mr. Eggert.
“If you are trying to measure how the police are doing and how accountability is doing, find a way to capture how small towns and medium-sized cities are doing,” he said.
Despite different ways of trying to track accountability for police misconduct, insurance claims data provides the best possible insights, said Mr. Eggert.
Mr. Eggert cited a data set by John Rappaport, an assistant professor of law at the University of Chicago, that showed there has been no apparent increase in the frequency of law enforcement claims, despite heightened public focus since Ferguson.
“Whether you’re looking at fatality, or excessive force, or seizure of a person, you’re generally seeing a drop in claims data from this study since 2014,” he said.
“However, the flip side of that story that may be more in line with public focus is that whether looking at the total number of payouts or mean payouts – you’re seeing a giant spike since Ferguson,” he said.
While one hypothesis for the growing severity in payouts may be that claims selection is improving and claims lawyers are getting better at figuring out which claims to pursue, it doesn’t fully explain what is going on, said Mr. Eggert.
Neither does the idea that cities are worried about going to trial and willing to settle for more in order to mitigate reputation damage amid intense public focus, he said.
“The best explanation of why we’re seeing flat claims with bigger payouts is that the police are doing the same things in 2019 that they were doing five years ago or 10 years ago,” he said.
Meanwhile, recent court decisions in cases involving qualified immunity defenses are limiting accountability and liability in cases of police misconduct, he said.
Since 2014, the Supreme Court has weighed in on the issue of qualified immunity 11 times, he said. “At the same time, there is increased public focus, there is increased focus at the Supreme Court level. You’re seeing way more cases per year in the qualified immunity context,” Mr. Eggert said.
In those 11 Supreme Court opinions, there have been “10 in favor of qualified immunity and only one where it was questioned as going too far,” he said.
“Qualified immunity today has never been as robust as it is now. It has never been stronger,” said Mr. Otworth.
While municipalities need good legal counsel to manage the severity of the claims environment, they also need to look at the upside risk, he said.
“If you can use qualified immunity in the right kind of case, you can get yourself out of a lot of messes,” Mr. Otworth said.