Making the Case for Professional Liability in Law Enforcement

Almost a year ago, I wrote an article, asking the question, Do Police Officers Need to Buy Professional Liability? It’s still a good question and I’d like to explore it again from another direction. What might the liability layers look like for a law enforcement officer? Are there possible solutions for this liability issue?

Liability Basics

Liability insurance pays money that an insured becomes legally obligated to pay as a result of a claim or suit to which the insurance policy applies. Whether or not a claim or suit is covered by the policy is a function of several factors. Did the occurrence happen during the policy term? Was the claim made during the policy term? Was the person or entity that is potentially liable an insured? Is there an exclusion that might apply to this claim or suit?

We are going to work from the position that the claim or suit is covered by the policy, that the persons and entities involved are in fact insureds, and that there are no exclusions that apply (except when we bring up the possibility of an exclusion).

The Suit Stack

While it doesn’t happen every time, whenever an individual is sued for something that they do in the course of their work, the suit is not usually just filed against the individual. Take, for example, an instance where a local police officer is accused of negligence in their duties. The officer themselves could be sued, which seems appropriate since they actually did a thing that seemed negligent. Also on the list to be sued is the department for which the officer works.

Now that you’re thinking about it, this makes sense too, since an employer has a vicarious liability associated with their employees. Here’s the rest of the list of potential litigants who may be involved: the city or county that operates the law enforcement agency, the mayor, city council, or county commission, and just about anyone else that might even be tangentially attached to the alleged negligence.

Getting Sued

As much as we complain about how litigious society is, there still needs to be a reason to file a lawsuit. That leads to the question, how does one get sued; more specifically how does a law enforcement officer get sued?

A law enforcement officer could potentially be sued over what he/she does. Somehow, the officer in question breached their duty. Perhaps in the process of detaining someone who may have committed a crime, they also detained people who were not involved. In a worse case, they might have discharged their firearm, injuring or killing someone.

He/she might also be sued for failing to do something that they ought to have done. Consider the suspect that gets away from our law enforcement officer and while being pursued the suspect causes an accident, injuring or killing a person. The officer could be sued for failing to execute their duties.

Of course, these are wild generalizations, but they make the point that the biggest issue for a police officer is the execution of their duties. Did they do what they were supposed to do? Did they exercise due care in the execution of their duties? Did they do it “by the book”? Could they have done anything else? Should they have done anything else?

The City

Let’s assume that our police officer works for a municipality. What does the city have to do to be sued?

Consider the hiring process. Did the city do their due diligence in hiring someone for a position as a police officer? There should be standards in place for who they will and (more importantly) who they won’t hire. Unfortunately, there are several factors that make it difficult to implement, and hold to, any specific hiring standards. Not every city has a clear hiring process that does enough to ensure that they are hiring the best people for the jobs and those that do sometimes have pressure to get people to fill the open jobs because they are in such need for people.

Once hired, the city is responsible to make sure that the officer is properly trained. That might include their pre-hire training, whether there’s a degree involved, or some sort of police academy. It would also be important that there be on the job training, including all of the policies and procedures that the department operates under.

Lastly, the city could have an issue of proper supervision. Police departments have a chain of command, and every officer exists somewhere in that chain. They might be supervisors with responsibility for other officers or they might not have responsibility for anyone but themselves, but there is always a supervisory chain. Between the issues of improper hiring, failure to train, and failure to supervise, the city can find itself in the suit stack.

Getting Coverage to Work

This all started with the idea of how to cover the liability exposures for individual police officers so let’s get to that. This approach intends to balance several potentially competing issues, holding individuals responsible for their actions, holding organizations and municipalities responsible for their part in the actions of individuals, and providing justice to those who are harmed because of the actions of individuals.

I’m suggesting that individual officers who have direct contact with the public should carry a professional liability policy that they are required to pay for personally. This creates accountability outside of the normal channels of accountability. If the officer cannot get insurance, or has restrictive terms, the department has someone else that can tell them who it is they have working for them.

The underwriting of an individual officer would require that the officer disclose certain aspects of their careers, training, commendations, reprimands, investigations, etc. You’re right. They could lie, but we all know what happens when an insured neglects to disclose material details about the risk, coverage is voided.

Failure to obtain coverage, or coverage provided on terms other than required by the department could cause the officer to be reassigned to other duties or they may not be able to continue in the job. That may sound harsh, but if your doctor was uninsurable, would you let them operate?

The individual officers’ policy should also include provisions making that policy primary for any actions taken while in the performance of their duties and exclude any actions for which the officer is convicted in a criminal proceeding. This creates a layer of responsibility for the individual officer. It also allows the policy to continue to provide coverage if the officer is accused of a crime, but not convicted. It is not intended to provide criminal defense coverage, only to defend against and pay indemnity in a civil case.

As for the city, they should also maintain liability coverage for their law enforcement employees. To keep the individual policy responsible, there should be a provision that makes the city’s policy excess over the individual officers’ policies and requiring that they maintain certain underlying limits. If, however, the individual officer’s policy has exhausted its limit, or the policy stops paying after a criminal conviction, the city’s policy can drop down and become primary. This serves the public good because it doesn’t penalize the injured party.

There could be variations of these requirements. It could be that cities decide to implement an individual insurance requirement for certain officers if they have had issues. Maybe certain cities cover a portion of the insurance cost on officers that can receive better pricing based on their own risk. The options are open.