By Megan Wells, Police1 Contributor
Law enforcement officers have different insurance needs than civilians. It comes with the high-risk, high-touch job. There is a gray area when it comes to legal assistance and personal liability. If an officer is sued, does the department cover these costs, or will the officer be responsible?
We’ve discussed the topic of personal liability insurance with lawyers versed in insurance laws and those who specialize in law enforcement needs to help clarify what your department covers, whether a police officer should consider purchasing additional insurance and where to find it.
If you take anything away from this article, it should be this
The most common piece of advice that all legal professionals we spoke with offered was, stay within your professional scope.
If you act within your scope of employment, the department will likely cover your legal fees during lawsuits.
“As long as the incident occurred within the course and scope of the officer’s employment, and the officer was not on a personal rampage (in deliberate disregard of the department’s interests), chances are usually good to very good that only the department will pay, even though the officer faces the potential of liability,” according to Nelson Miller, associate dean of Western Michigan University’s Cooley Law School.
Nelson also advises that the first and best option is to expect and pursue your department’s insurance and defense if you are within your scope and face a lawsuit. Joining forces with your department saves face for them, too.
“One of the worst ways for a department to defend a claim against it is to blame the officer,” said Nelson. “By doing so, the department is also pointing the finger at itself.”
In other words, if you aren’t doing anything wrong, your department should have your back.
Even with the odds in a LEO’s favor, are there situations where an officer pays?
In some instances, a police officer will be sued and the police department will not cover the legal expenses. While these cases are rare, it still happens. So, when would a police officer be on the hook for his or her own defense?
Let’s dive into some legal jargon:
As a police officer, you should understand U.S. Code Section 1983, which speaks to civil action for deprivation of rights. As Rob Horst of Horst Law Firm explains, “If there is a 1983 (civil rights action) the police officer can be held personally liable.”
Section 1983 typically deals with:
- First Amendment issues like freedom of speech
- Fourth Amendment issues like search and seizure or use of force
- Eighth Amendment issues like cruel and unusual punishment
- 14th Amendment claims of due process violations
Section 1983 ensures that police officers respect a personal’s federal Bill of Rights freedoms. It relates to law enforcement in the following ways, according to Nelson:
- For officers, a Section 1983 claim would usually arise from excessive-force claims for allegedly shooting or beating an unarmed suspect when that force was more than necessary to accomplish the lawful restraint objective.
- For corrections officers, the risk of a Section 1983 claim would usually arise from cruel-and-unusual punishment like an alleged denial of medical treatment for a known serious medical need, excessive restraint or isolation, deprivation of food or other necessities or for other allegedly cruel treatment.
- First Amendment claims can arise when the involved officers direct their action toward silencing the claimant’s speech or interfering with an assembly, such as in dispersing a public protest or march.
Many people allege excessive force claims, but they are very difficult to prove. In fact, says Horst, many police officers will have these cases dismissed prior to a jury trial.
What can you do to proactively protect yourself? Is it worth the expense?
To determine whether additional personal liability insurance is worth the expense boils down to you and your department’s solvency. Do you have a track record of operating out of scope, and does your department offer financial assistance for lawsuits?
Most likely your department is and will remain solvent. But there have been infrequent cases in history when a city or municipality goes bankrupt (think Detroit circa 2013) where different fiscal protections are worth noting.
Start with your department’s coverage. Ask questions. What does your department cover? If you act within your scope and don’t violate Section 1983, will you be covered? If there are particular areas your department won’t or can’t cover, consider private market options.
Personal umbrella policies are an option. Some companies offer law enforcement liability insurance for an extra level of protection. Sometimes homeowners insurance covers some personal liabilities, but be aware that it may not always defend you in work-related lawsuits. Read the fine print. Also, the NRA offers self-defense insurance for retired law enforcement officers.
The only way to determine whether additional insurance is right for you is by understanding your personal situation intimately. If you elect to get additional coverage, check coverage limits and exclusions to ensure that you’re spending your money wisely.
