An Idea So Crazy, It Just Might Work

Glenn Reynolds in USA Today: “Looking for ‘solutions’ to mass killings? Start with punishing failure.“:

Since then, we’ve had a lot of what the father of genuine hero Borges, according to the family’s lawyer, calls “bubblegum hero stuff.” But there’s been no accountability for the adults whose incompetence, or worse, made this slaughter possible. And, as with the earlier examples above, that’s par for the course. Over and over again, when the government fails, there are no consequences for those overseeing the failing.

No. When they screw up, we pay. Accountability for thee but not for me. Glenn Reynolds has spoken out against qualified immunity repeatedly. I read this weekend about the idea that absent qualified immunity, officers would have to carry insurance, like doctors do. Or more likely their departments would carry insurance for them. This would give better incentives for agencies to weed out bad cops. Sounds feasible to me. But would it work in practice? Does malpractice insurance weed out bad doctors?

14 thoughts on “An Idea So Crazy, It Just Might Work”

  1. Regarding ‘Failure Liability Insurance’, that insurance should be Taxpayer $Cash Rebates for fiascos like what happened with the Broward County Sheriff’s Department and The MSD High School Shooting.

  2. I would like to see the people (taxpayers) be able to take the issue of a failure like this to a judge and get a ruling that would make the cop or teacher pay the bill, not the taxpayers. If you can show they were negligent then they get to pay any settlements, not the town/city/state. Keep the heat on the bad apples and don’t punish the overwhelming number of good cops/teachers etc.

  3. If we look at the medical field, it just makes the cost across the board higher.

    I think a good firswt step is reducing the number of laws, by finding an exit point in the war on (some) drugs. That would drop the needed police down in about 2 years. It would open up more positions for counselors, and other medical staff. Then we could start treating people to get them off the drugs and back into productive lives, instead of dunking them in State prisons and solidifying the stigma on them for life.

    1. But you know, thats only ever been tried in Argentina and Portugal where it worked great, right? That doesn’t help politicians get votes for being “tough on crime TM”.

  4. As there are slightly more police officers in the U.S. than there are doctors (~1.1 million vs. ~1 million), and the training and certification standards are so much higher for doctors (who are nevertheless required to carry malpractice insurance) than for police officers, on some level I could see this concept working to encourage departments to weed out bad cops and promote good ones.

    On the other hand, though, in my experience malpractice insurance doesn’t do all that much to weed out bad doctors, any more than mandatory vehicle liability insurance weeds out bad drivers. The whole purpose of insurance is cost-sharing; most will never screw up badly enough to need it, but pay for it “just in case”. Either way, they help pay for the few who do screw up.

    It’s just a higher financial bar for potential new doctors to clear before they can go into practice.

    My bigger worry is that since police officers are exempt from so many “gun control” laws, how long before some anti-gun lawmaker decides that if “trained and responsible” police officers must carry insurance, then “untrained” private gun owners must carry it, too? I’d just be cautious about opening that door.

    As an aside: My main issue with “qualified immunity” is the courts’ predisposition to view anything a police officer does while in uniform as “qualified” … whether or not the individual officer knows the first thing about what he/she is doing. In practice, it’s shockingly close to absolute immunity.

    1. FOPA needs to go. Police officers (and their unions) need to feel the hurt when trying to exercise rights. We need to get rid of this feudal idea that they are more equal than others.

      1. Agreed. We need exceptions for “occupation” just like we need exceptions for “skin color”, “gender identity”, or “political affiliation”. Which is to say, not at all.

        Such exceptions to gun laws only make sense if we assume that people in those occupations need to use their guns more liberally (read: more often and in wider sets of circumstances) than the rest of us*. That assumption falls apart when we apply the same logic to skin color, gender identity, or political affiliation (although that last, given our opposition’s Twitter feeds, does clarify some things, doesn’t it?)

        If a police union opposes a bill because there is not an exception carved out for police — or inversely, supports it because there is — that should be a clue that that bill should not become law.

        * – Think of this as an extension of the argument against police exceptions to “assault weapon bans”. If “assault weapons” and “large capacity magazines” have no purpose other than “killing lots of people very quickly”, then why do police need them, if not for all that “killing lots of people very quickly” they do every day?

    2. What’s worse: qualified immunity (and immunity in general) isn’t a legislative thing, but something carved out of thin air by the courts.

      Ironically, the *only* person in British law who had immunity was the king. While you couldn’t sue the king, you could sue any of his bureaucrats.

      We *really* need the legislature to reign in “qualified” immunity.

      1. We do, but they won’t. Such would be portrayed as “anti-cop”, and they’d get shredded in the polls.

        And that’s assuming some judge doesn’t strike down the legislated definition as violating the separation of powers — if the courts made it up, then it’s the courts’ purview; the legislature can’t touch it.

        I believe some immunity is necessary (else the lawsuits would be endless, even for wholly-appropriate conduct), but absolute immunity is an abomination. No judge or prosecutor should be above facing consequences for grossly misusing or abusing his/her position, and no LEO should be above facing consequences for operating outside their expertise (i.e. where they are untrained/unqualified).

  5. But would it work in practice? Does malpractice insurance weed out bad doctors?

    That’s a great question. I’ve read a lot of articles over the years that assert that doctors order a lot of extra tests and specialist referrals that are expensive and have marginal medical necessity, but are good CYA for any potential malpractice claims. Maybe that’s true.

    My understanding is that malpractice insurance is carried individually by doctors, so short of some kind of shenanigans the incentive structure should be correct in real life.

    On a few minutes’ reflection, I think the concept of malpractice insurance isn’t likely to work for police. Police are typically low-paid public servants. If individual officers were to carry insurance, they’d have to be paid much more to be able to afford it. We’re probably not going to do that. If the department carries an umbrella policy instead, what’s the difference between that and today’s system where the local government pays out settlements directly and nobody cares because it’s other people’s money? If anything, that approach would cost more (because another layer of overhead) without changing the incentive set. You can say that the PD would want to avoid higher premiums, but you can also say they’d like to avoid settling lawsuits, yet it doesn’t seem to bother most of them today.

    Businesses always have the bottom line incentive–they can literally be sued out of existence, either directly by a bankrupting civil judgement, or indirectly by becoming known as the outfit that did someone so wrong that they lost a huge lawsuit (or more than one.) Governments don’t cease to exist even if they go broke, so at the end of the day the only way to rein them in is via the ballot box (or as they say, the cartridge box)

  6. Doctors deal with people who want doctors to help them. Cops deal with people who want the cop to go away, or even die. Big difference.

    I hate the way qualified immunity is abused, and even more the fact it was created out of whole cloth just to protect government workers. But cops deal with people who are dumb as rocks – rocks that, “know my rights!”

    I think there has to be some ground between what we have now, and asking LEOs/Departments to insure each officer. That’s too much when a good number of their “customers” pretty much hate them and are looking for ways to get revenge.

    I’m no lover of government. I say this as someone who has two lawyers fighting a city right now (not law enforcement related) and would love sue the living crap out of every bureaucrat who thinks they can control my family and our property.

  7. Pretty much with Patrick here. I will add that what is even worse than qualified immunity (as abused) is the absolute immunity enjoyed by prosecutors and judges.

  8. Only problem is they are still using your money, so they still won’t give a shit.

  9. Problem is that the police unions very effectively play both sides. From Democrats, they extract lots of benefits because “safety” and “crime.” Dems dont want to be seen as soft on crime. Especially in big cities like NYC. (One of the first things DeBlasio did was give the police a nice fat contract: Bloomberg, to his credit, was a tough negotiator and fiscally responsible. He was not all bad.

    Meanwhile, republicans give the police more powers because “safety” and “crime.” Bloomberg did not give money, but he did support ample broad police powers.

    The secret no one has any incentive to say out loud is that crime is not really a police issue. Crime goes up, crime goes down, but economic development is a much stronger indicator of crime trends than police per square mile or per resident. If you look at any city, Chicago, NY, or Baltimore, crime is concentrated in a few places. Police, as they say, only show up after the fact.

    But the GOP, Dems, and frankly the NRA, will bend over backwards to please the police because they seem to think that they “need” the police. Poor inner city resident and minorities suffer, as politicians focus on the short term promises of more police instead of longer term economic incentives that promote development. The #1 thing which would reduce crime in these neighborhoods is removing the vacants and selling developers large parcels to develop. Residents will take non-dope-slinging jobs, if they were available (but labor taxes in cities are atrocious). Inner city unemployment is awful . why?

    Qualified immunity will not go away, your 2nd, 4th, and 5th amendment rights will not return, until the police union is broken.

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