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Police Excessive Force Raises Liability Risk Scrutiny

Susan Kostro - Senior Vice President, Public Entity

Ferguson, Baltimore, Staten Island, Columbus and the most recent infraction of profiling against tennis great, James Blake, during the U.S. Open in New York last month.  Police incidences of excessive force and reoccurrence of “brutal, unjustified physical attacks” erupting in cities and towns nationwide are shamefully disturbing.  At issue is the responsiveness of law enforcement liability programs to cover these public entities and, ultimately, the insurability of this exposure in the face of an increasing number of lawsuits and staggering settlements.

In 2014, the nation’s 10 largest police departments paid $248.7 million in settlements and court judgments in police misconduct cases, an increase of 48 percent from $163 million in 2010, as reported by The Wall Street Journal.  In 2015, over 850 citizens were killed by active duty police officers.  While there is very little collected data to track patterns of police misconduct, it is estimated that the majority are against minorities and more than 50 percent involve physical acts.  Police brutality first emerged as a nationwide epidemic in 1991 when a civilian’s video of the violent Rodney King incident was broadcast nationwide. Today, virtually everyone has a camera to record wrongful acts in progress, driving evermore civil lawsuits and settlements against public entities.  Notably, New York’s $5.9 settlement with Eric Garner’s family and the $6.4 million Freddy Gray payment are the latest examples of misconduct incident resolutions and payments made to avoid what could have resulted in lengthy and costly high visibility court battles.

Public awareness has incited outrage of repeated police excessive force confrontations.  Many public entities espouse the necessity of police body cameras as a possible solution to deter unjustifiable police behavior.  From an insurance perspective, however, the consequences are as yet unknown.  Are official body cameras good or bad for the insured?  The body camera may assuage the police department; the alleged act may benefit the victim.

Police liability insurance is included in Public Entity Professional Lines forms, providing coverage for police departments and officers for wrongful civil action while performing professional duties.  Increasing acts of questionable police behavior and skyrocketing awards have triggered greater coverage scrutiny.  Insurance carriers are underwriting more vigorously and even excluding coverage where the risk is deemed uninsurable.  Risk exposure for public law enforcement entities has changed, thereby requiring that broader underwriting factors be taken into consideration, such as size of the police force, size of the city, prior department claims’ experience, reoccurring altercations and, often, racial and/or ethnic diversity of the police force. 

Insurance companies are increasingly exerting pressure on public entities by requiring additional underwriting information and raising attachments in loss prone cities.  Disciplined underwriting within the law enforcement segment of the market continues to evolve in response to new risk realities – alternatively some carriers have chosen to exclude this coverage completely.  Public entities, to be held ultimately accountable, must provide insurers with police department assurances of sufficient officer training programs, accreditation, proper oversight of officer behavior and repeat offenses, and evidence of professionally responsible protocols.

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