By Bruce D. Praet
In addition to the usual dangers of the job, law enforcement officers in some states have recently faced proposed legislation to not only make it easier to sue cops but also attempt to dilute or even eliminate existing protections from civil liability.
While most of these initial efforts failed, support for such changes continues in certain areas. So…should the individual officer run out and buy professional liability insurance? Typical lawyer answer: it depends (but probably not).
Defense and Indemnification
Almost every jurisdiction is statutorily required to defend and indemnify officers acting within the course and scope of their duties unless the officer acts in bad faith or with malice. [1] In other words, your agency will generally be required to not only provide you with legal defense against any civil claim arising out of your duties, but they will also be required to pay all damages except so-called punitive damages. [2]
While “punitive damages” certainly sound scary (they’re supposed to since they’re designed to punish really bad behavior), it is extremely rare for them to be awarded against individual officers. In fact, in 35 years of exclusively defending police litigation, I have never had punitive damages awarded against any officer and, even in those few rare cases around the country in which they have been imposed, they are usually in the thousands of dollars as they must be relative to the individual officer’s net worth.
Moreover, while most agencies are not required to pay punitive damages for an officer, many statutes allow the agency the discretion to still indemnify the officer if the agency independently finds that the officer acted in good faith in spite of any jury finding.
In a recent national study, it was found that 99.98% of all damage awards in police misconduct litigation (including verdicts and settlements) were in fact paid by the employing public entity. [3] So, while it is technically “possible” that an individual officer could face personal liability, the odds are pretty slim.
Qualified Immunity
One of the targets of police reformists has been so-called qualified immunity. It is important from the outset, however, to note that qualified immunity is strictly a federal defense and individual states have no power to directly impact it. [4]
While many states attempted end-around legislation seeking to increase individual officer liability, only two such bills marginally succeeded. In Connecticut, SB 20-217 was passed but only in an amended form, which continues to provide officers with a defense for good faith and reasonable conduct. Colorado’s amendment to 13-21-131 came closest to police reform by imposing personal liability of 5% of any damage award or $25,000 (whichever is less) on any officer found to have acted in bad faith or without reasonable belief that his/her conduct was lawful.
So, what is qualified immunity? Qualified immunity is a defense judicially created by the Supreme Court to protect public officials from individual liability unless they violated a clearly established constitutional right of which a reasonable person would have known. [5] It applies only to allegations of constitutional violations and does not apply to most state claims such as negligence, false arrest or battery.
It is the Supreme Court’s recent clarification of the “clearly established” prong of qualified immunity that has upset law enforcement critics.
As the Court noted, qualified immunity is necessary because “it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” [6]
More recently, the Court has required plaintiffs to cite “clearly established law (which) must be ‘particularized’ to the facts of the case. Otherwise, [p]laintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” [7]
While some federal appellate courts have been reluctant to apply qualified immunity, particularly the Ninth Circuit, the Supreme Court remains the law of the land and qualified immunity can only be changed by the Court or Congress. However, qualified immunity provides a potential defense only for individual officers and is not available to public entities. Thus, while an individual officer may (or may not) be entitled to qualified immunity from civil liability against constitutional claims, the employing agency may still be potentially liable if there is evidence of a custom, policy or practice of constitutional violations. [8]
Purchasing Individual Professional Liability Insurance
Although getting sued civilly can certainly be stressful, you can see that the current likelihood of personal liability is extremely remote unless you act with malice or engage in criminal conduct.
For those individuals who nonetheless wish to have an extra layer of protection for even such remote exposure, finding professional liability insurance as an officer may not be easy, given the nature of your profession (i.e., you arrest people and occasionally use force).
While most standard homeowner’s policies exclude duty-related activities, some law enforcement associations or unions may offer limited insurance policies to cover those situations not defended or indemnified by your agency. The annual cost of these policies will generally vary (often $500-1,000) depending on the deductible limits applied. Such policies may also include exclusions for allegations of criminal conduct, punitive damages, etc. so read carefully.
At the end of the day, you should check your local laws addressing defense and indemnification. After balancing your current level of protection and the risk of facing an adverse verdict, only you can decide whether it will be worth investing in personal liability insurance as an added layer of protection.
References
1. See e.g.: Ohio Rev. Code 2744.07; Calif. Govt. Code 825; Missouri Rev. Stat. 105.711; Dallas Ord. 31A-5.
2. Many indemnification provisions expressly exclude criminal conduct and, in the wake of what many might argue is an increase in politically motivated criminal prosecutions of officers, this may impact individual exposure if it continues.
3. Schwartz J. Police Indemnification, NYU L, 2014, 89:3.
4. So far, Democratic efforts in Congress to diminish or eliminate qualified immunity (e.g., HR 7085 - Booker) have failed, but will undoubtedly continue.
5. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
6. Mullenix v. Luna, 136 S.Ct. 305, 308 (2015).
7. White v. Pauly, 137 S.Ct. 548, 552 (2017) (per curiam).
8. Monell v. Dept. of Soc.Svs., 436 U.S. 658 (1978).
