The Origins of the Police Insurance Concept

The idea of requiring police to carry their own professional liability insurance has been a ten-year effort in the making. CUAPB president and CfPP board member, Michelle Gross, says that in 2006 Michael Friedman talked with Gross about some ideas he was developing to increase police accountability. Friedman served as a board member and chair of the now defunct Civilian Review Authority (CRA) from 2003 to 2005.Footnote ⁸ Through his involvement, he gained an inside view of the ineffectiveness of civilian oversight and felt that the board lacked the authority to hold police accountable. He wanted to shift away from punitive, reactive approaches to dealing with police violence and develop a way to incentivize officers not to engage in misconduct:

In explaining sections of a March 2002 document that he wrote entitled “Guiding Principles for Police Oversight Reform” (CRA 2002), Friedman noted: “The Guiding Principles begins work on the benefit of differentiating officer risk and compares it to the professional liability of doctors…but did not [propose] individual insurance policies. Instead it created its own internal risk assessment mechanism and tied it to bonuses.”Footnote ¹⁰

The document was written at a time in Minneapolis when police and community relations had reached a boiling point following high-profile incidents of misconduct. Minneapolis residents called for federal mediation, but grassroots groups, like CUAPB, argued that the city was undermining such efforts by handpicking a “community” team to broker an ineffectual mediation agreement. Before this agreement was reached, community members had elected their own team to draft a list of community demands and broker a substantive agreement. In January 2003, Friedman helped draft this list of demands. Although it remained an internal document due to the city’s refusal to negotiate with the community elected team, Friedman proposed in it the “concept to possibly requiring officers to carry their own insurance product.” He noted that “[a]doption of improvements in policy, training and oversight should reduce civil liability exposure,” before making three insurance-related demands:

In 2006, when Friedman proposed the concept of mandatory professional liability insurance for police to Gross, she says that she liked his idea, but CUAPB was busy with other projects. Then, several years later, at CUAPB’s annual strategic planning meeting, one board member suggested that they get this idea off the ground, which they all agreed to do.Footnote ¹¹

Moving from a Concept to a Grassroots Campaign

In 2010, CUAPB leaders started drafting the wording for a police insurance charter amendment. In 2013, after two false starts, the group crafted an amendment that adhered to the city’s plain language charter. Around this time, the group formed the CfPP to follow campaign laws and began a three-year ballot petition campaign. The proposed amendment read as follows:

The amendment language was informed by Friedman’s initial proposal to have private insurance companies determine risk ratings of officers based on their misconduct histories. As the amendment language illustrates—with its implicit focus on factoring in “personal or claims history” to determine insurance premiums—the CfPP worked to develop a discourse around risk management and actuarial science to reduce misconduct and the financial costs stemming from it.

The campaign strategy of developing a discourse around risk management and actuarial science was evident in all aspects of the CfPP’s efforts to pass this novel accountability mechanism. In a CfPP internal media training document, the group noted the importance of accurately communicating this discourse to the public: “Our language is important! We need to consistently and clearly explain the mechanics of the amendment while addressing concerns of the public.” The document included bullet-pointed instructions for discussing the amendment with the media:

• Read and be familiar with the wording of our amendment before participating in any interviews.

• Refer to it as the police insurance amendment.

• The police insurance amendment will require police officers to carry their own professional liability insurance. DO NOT refer to it as individual insurance as this raises the specter that officers will have to pay for it themselves.

• If asked about the cost of coverage, say “the city could pay the base rate of the premium but any overage due to misconduct would come from the pocket of the officer who caused it.”

• When questions of cost are raised: “Minneapolis currently spends about $3000 per officer per year for police misconduct—for every officer, including the officers who don’t engage in misconduct. We believe professional liability insurance will be less expensive over time as officers engage in less misconduct.”

• Refer to payouts for police misconduct as “BAILOUTS for bad policing.” (CfPP 2016b; emphasis in the original)

As the bullet-pointed instructions highlight, the CfPP stressed the importance of carefully noting how the proposal balances municipal liability insurance (by encouraging the city to cover the base rate) with individual liability insurance (by having officers personally cover any overage due to misconduct) in order to encourage accountability at both the municipal and individual levels.

Though similarities exist between the old penology of penal governance and old penology of police misconduct with respect to discourses, objectives, and techniques, these two strategic formations have unfolded historically in unique ways and over distinct time periods. While the roots of US modern punishment date back to early penal reform efforts of the eighteenth, nineteenth, and early twentieth centuries (Simon and Feeley Reference Simon, Feeley, Thomas and Cohen2003), modern US policing has a much shorter history. A watershed moment was the 1931 publication of the Wickersham Commission report under President Herbert Hoover, which was the first report to recognize police misconduct as a national social problem (Rushin Reference Rushin2017a; Walker and Archbold Reference Walker and Archbold2019). The Wickersham Commission report is the starting point of what, I argue, may be thought of as the old penology of police misconduct. One objective that both the old penology of penal governance and police misconduct share is meting out punishment to have a specific and general deterrent effect: the former regarding individual offenders from the community (Feeley and Simon Reference Feeley and Simon1992) and the latter regarding individual police officers.

Critics of the new penology thesis have noted that contemporary crime control operates as a hybrid model consisting of both old and new penological features (Lynch Reference Lynch1998; Coleman and Sim Reference Coleman, Joe, Pratt, Brown, Brown, Hallsworth and Morrison2005; Cheliotis Reference Cheliotis2006), a critique that Simon and Feeley (Reference Simon, Feeley, Thomas and Cohen2003) acknowledge as valid and address in later work by clarifying their original thesis. Such hybridity was also evidenced in the CfPP’s campaign, especially in its emphasis on the old penological objective of specific and general deterrence. While the CfPP embraced new penological features such as selective incapacitation, the CfPP’s overall insurance model was aimed at general deterrence since it sought to reduce misconduct by increasing the likelihood or severity of punishment for officers. Furthermore, as the CfPP’s bullet-pointed instructions reveal, its proposal was aimed at specific deterrence insofar as the punished officer would theoretically avoid engaging in future misconduct for fear of, again, suffering the punishment she faced for committing the first offense (that is, having to pay “any overage due to misconduct”).

Throughout the campaign, the CfPP tended to avoid the explicit use of deterrence discourse, instead using seemingly more strategic and politically palatable language. One way the group did so was by analogizing to other professions. In its campaign literature, the CfPP analogized to professional liability or malpractice insurance in other occupations (for example, accountants, doctors, general contractors, and lawyers) (CfPP 2013c), and this idea was encapsulated in a “Get Out the Vote” meme that the CfPP campaign chair and board member, Dave Bicking, presented at a CfPP board meeting in August 2016: “How come the doctor who fixes my broken arm has to carry insurance, but the police officer who broke it doesn’t …?”Footnote ¹³ By analogizing to other professions, the CfPP emphasized how insurance would enhance police professionalism, as its name the Committee for “Professional” Policing conveyed.

The CfPP also tended to avoid the explicit use of deterrence discourse by framing the proposal in terms of positive and negative incentives. In a widely distributed campaign leaflet, the CfPP cited its primary analogy of auto insurance to explain how mandatory insurance would work in practice. The group highlighted positive incentives of requiring individual insurance such as: “All officers would see that good conduct is rewarded, in the same way that safe drivers pay lower insurance premiums than bad drivers” (CfPP 2013b). In line with Friedman’s earlier recommendations to offer positive incentives such as higher pay and bonuses to well-behaved officers, the CfPP envisioned that officers with long records of spotless behavior would be enticed by “good officer discounts” on their insurance rates similar to “safe driver discounts.”Footnote ¹⁴ At the same time, the CfPP’s campaign literature highlighted how requiring insurance would incentivize officers by offering negative consequences for bad behavior: “Just as bad drivers pay more for their insurance, police officers who harm the community will pay more for their insurance and some will become uninsurable. … [O]fficers will have an incentive not to brutalize people—because it will cost them money” (CfPP 2016m). The group’s tendency to avoid the language of deterrence was, arguably, more conducive to the CfPP’s objective of normalizing and depoliticizing its insurance proposal that centered on tools of risk management and actuarial science. Because material consequences such as losing one’s job could be perceived by some constituencies as “anti-cop”—and, in fact, were by the Police Officers Federation of Minneapolis (2016)—relying on deterrence discourse would have been a hard sell politically.

When deploying these newly developed discourses, the CfPP’s effort to stay on message was evident in its PowerPoint presentation before the city’s Police Conduct Oversight Commission (PCOC) in June 2016.Footnote ¹⁵ In the presentation, Gross first explained to the PCOC how the amendment would work in practice by going over the following campaign infographic (Figure 2). Gross then proceeded to highlight “a number of benefits to this approach,” including:

• An officer who engages in misconduct that results in a premium increase will have a personal consequence for the conduct. This incentivizes the officer not to engage in this behavior in the future, applying a risk management strategy to policing that is not currently present. It also removes the element of politics in terms of who is disciplined and who isn’t.

• Officers who don’t learn the lesson, and continue to engage in misconduct will find that their rates increase to the point of being unaffordable. The worst offenders may become uninsurable and thus, no longer employable by the Minneapolis Police Department.

• As the worst offenders leave, good officers will have a better working environment. …

• Police leadership will have a powerful new tool for managing their staff.

• Decreases in police misconduct will increase the safety of the community and improve police-community relations. (CfPP 2016h; emphasis added)

Figure 2.

How the police insurance amendment would work. Credit: CfPP 2016h.

These talking points further illustrate the development of this new penology of police misconduct discourse, including by highlighting how if punished officers recidivate by failing to “learn the lesson,” they are then identified and managed as an unruly group by having their insurance rates increased to the point of being “unaffordable.”

The CfPP portrayed officers as rational actors and, arguably, over-determined their rationality, while presuming a close link between misconduct, litigation, liability, and financial exposure.Footnote ¹⁶ In much the same way as the new penology does (Feeley and Simon Reference Feeley and Simon1992), the CfPP’s proposal placed a strong emphasis on the rationality of the managerial processes of police departments and insurance companies that would help to create a “better working environment” and provide police leadership with a “powerful new tool for managing their staff.” Critics of the new penology argue that it paints a pessimistic view of penal agents as lacking agency and ensnarled in “the ‘iron cage’ of an over-rationalized criminal justice system,” thus, overlooking positive features of penal managerialism, including its potential to “facilitate the ‘delivery’ of justice” (Cheliotis Reference Cheliotis2006, 314, 330). By only applying and theorizing the new penology in the context of criminal offenders from the community, scholars have also overlooked its potential to “facilitate the ‘delivery’ of justice” in the case of managing dangerous categories of criminal justice personnel, as the CfPP sought to do by developing discourses of risk management and actuarial science to address police misconduct. On its face, while the CfPP was discursively making an amoral case by adopting risk management logics, the group’s proposal assigned insurance companies the role of providing a normalizing assessment of risk levels in a dispassionate, apolitical fashion.

The Taxpayers Are the City’s Insurance Policy

In an April 2016 Minneapolis City Pages newspaper article describing the CfPP’s campaign, the then presiding but now former MPF president, Lieutenant Bob Kroll, criticized the campaign’s effort to insure police: “‘This group is so naïve. Our labor contract provides that the city will insure us. … They can get all the signatures they need to get on the ballot … and it’s not going to change our labor agreement’” (qtd. in Du Reference Du2016). Kroll further explained the current self-insurance terrain and voluntary professional liability insurance available to Minneapolis police:

In defense of the CfPP’s proposed amendment, Gross challenged Kroll’s assertions:

Thus, the CfPP viewed its insurance proposal as a necessary revision to the city’s existing indemnification practices. Under the group’s proposal, officers would have “guaranteed coverage,” which they did not have at the time since Minneapolis determined coverage on a case-by-case basis (CfPP 2016h). Further, the CfPP argued that the proposed amendment was needed because the taxpayers were the city’s insurance policy since they paid for the costs of misconduct. This was made clear in the campaign literature that the CfPP disseminated, including in one of its volunteer recruitment flyers (Figure 3).

Figure 3.

CfPP volunteer recruitment flyer. Credit: CfPP 2016n.

Applying risk management as an accountability strategy is not new to policing (Walker and Archbold Reference Walker and Archbold2019). What was novel about the CfPP’s proposal was its attempt to develop a new objective of risk management through mandatory individual insurance to reduce misconduct and payouts. The CfPP leaders viewed existing accountability mechanisms as considerably weak and largely ineffective—a claim validated by a recent nationwide study that finds “every major mechanism of police accountability to be substantially flawed or generally ineffective” (D. Ramirez et al. Reference Ramirez, Marcus, Lauren and Carly2019, 458). But they still generally supported educating and training officers in anti-racism, de-escalation, community policing, and interventions to rehabilitate and correct officers’ performance problems.Footnote ¹⁹ Moreover, they supported individual insurance as one among myriad reforms necessary to end police violence that CUAPB had been fighting for years to implement—many of which faced resistance from Minnesota public officials at every level of government (Forliti and Imbrahim Reference Forliti and Mohamed2020). The CfPP believed that individual insurance was necessary because not enough was being done to hold rogue officers accountable. That said, the volunteer recruitment flyer highlights what Epp (Reference Epp2009) refers to as “liability’s benefits” insofar as responsibilizing pressures via individual insurance would presumably safeguard public safety by weeding out repeat offenders, while placing the financial onus on rogue officers instead of taxpayers.

The CfPP’s flyer also emphasized how professionals in other occupations in both the private and public sectors carry individual liability insurance. Police officers are one class of public sector employees that have been able to avoid becoming responsibilized worker subjects. This rare exception seems puzzling in an era in which neoliberal governmentality is the dominant governing rationality, and almost all spheres of human life are economized and privatized (Brown Reference Brown2015). However, it is less surprising when considered in the broader context of carceral state buildup.

As neoliberal governmentality gained prominence in the 1970s and subsequent decades, carceral state buildup, which began in the mid-1960s, coincided with structural transformations, like economic deregulation and welfare retrenchment. Paradoxically, in response to these state policies, the state increased spending on prisons, courts, and policing as its solution to managing economic and social insecurities. Police play an integral role in criminalizing social insecurity and managing dispossessed urban populations through a neoliberal state strategy of “punitive containment” that relies on panoptic surveillance and aggressive, militarized policing (Wacquant Reference Wacquant2009). During the course of carceral state buildup, I argue that legal mechanisms to hold police accountable have emerged (for example, Sections 242, 1983, and 14141) but are effectively neutralized by a legalized impunity infrastructure (for example, indemnification laws, qualified immunity doctrine, police union contracts) that also emerged over this period. Transforming police into market actors by mandating individual insurance would radically challenge elements of this legalized impunity infrastructure that financially immunizes officers who commit misconduct.

The CfPP understood the radical potential of its amendment, as CfPP campaign manager and board member, Cole Yates, explained:

The CfPP’s novel application of risk management techniques was evident in the “[h]ere’s how it works” section of the flyer insofar as “repeat offenders” would be placed in higher risk categories by facing increased premiums. If they failed to refrain from further misconduct, they would lose their insurance coverage altogether. Meanwhile, the premiums of low risk or “[a]countable officers” would remain stable if they refrained from committing misconduct, so as not to punish ethical officers (CfPP 2016n).

When Police Misconduct Occurs, the City Pays Out

While the cost side of actuarial risk assessment is one aspect of penal managerialism that Feeley and Simon (Reference Feeley and Simon1992) left mostly unexplored (Aviram Reference Aviram2015), both sides of the cost/risk equation featured prominently throughout the CfPP’s campaign. The CfPP promoted a new objective of risk management to reduce misconduct-related costs, and, on its initial campaign website, “$20 Million Dollars” appeared in big, bold letters with the following explanation: “That’s the cost of police brutality to Minneapolis taxpayers over the past seven years. … Despite clear incentives for the city to use risk management to reduce these costs, this has yet to occur, demonstrated by the lack of accountability of officers … and … continuing brutality” (CfPP 2018).

The CfPP’s strategic framing in terms of cost savings is part of a new, broader discourse in criminal justice policy that punishment scholar Hadar Aviram (Reference Aviram2015) refers to as “humonetarianism,” which first rose to prominence in response to the 2008 financial crisis. Humonetarianism is the increasing propensity of penal actors to consider criminal justice and punitive policies mainly on the basis of cost, including “criminal propensity, risk, deterrence, and rehabilitation” (Aviram Reference Aviram2010, 3). Humonetarianism can be viewed as a “direct continuation of the actuarial-managerial practices of New Penology,” but, rather than focusing primarily on the risk levels of criminal offender categories, humonetarianism focuses on the costs that aggregated offender classes impose on the penal system (16–17).

The CfPP employed humonetarianism and inverted this new penological discourse by focusing on the costs that aggregated policing categories impose on taxpayers. Since its ultimate objective was to drive out rogue officers, the CfPP sought to make visible policing categories that are both high cost and high risk: high cost due to officers’ involvement in misconduct-related payouts and high risk due to their likelihood of committing future misconduct. Just as risk and cost are seen as “two parts of a calculus of ‘worthiness of incarceration’” (Aviram Reference Aviram2015, 57), the CfPP considered risk and cost as two parts of a calculus of worthiness of employment as an officer.

The CfPP also viewed its campaign as a “win for taxpayers” because taxpayers would no longer have to subsidize police violence by “bail[ing] out rogue officers” (CfPP 2016c) and paying a monetary sanction in the form of what essentially amounts to a police violence tax. In the punishment literature, the conventional definition of “monetary sanctions” is all the costs imposed by the criminal justice and court system on individuals from the community convicted and/or accused of committing a criminal offense. Such costs include fines, fees, interest, surcharges, collection charges, court processing fees, and defense attorney fees, which generate and reproduce inequality by trapping individuals in legal debt cycles (see Harris Reference Harris2016). For example, in the lead up to the death of Michael Brown, Ferguson budgeted annually for significant increases in municipal fines and fees to finance the city budget and to compensate for tax revenue shortfalls (US DOJ 2015). Instead of focusing on how cities budget for revenue generated from monetary sanctions and the micro-level predatory effects on individuals convicted and/or accused of a criminal offense, the CfPP sought to illuminate: (1) how police misconduct-related settlements and judgments (along with the hidden costs of legal fees, court testimonies, depositions, and so on) contribute to tax revenue shortfalls and (2) how financially immunizing individual officers and departments has meso-level predatory effects on self-insured cities by diverting tax revenue from the public sector—in areas like education, social services, and infrastructure—to cover payouts.

The CfPP strategically chose to frame its campaign using humonetarianism and with these meso-level effects in mind, as Yates explained: “Part of our messaging is going to be explaining to voters how that twenty million dollars could have been spent. For instance, you could say twenty million dollars could hire this many teachers, … or … help this many homeless people, or … do this for roads.”Footnote ²¹ This dynamic of misconduct-related costs contributing to tax revenue shortfalls, and local government officials raiding city funds budgeted for other purposes, as the CfPP claimed, is not isolated to Minneapolis but part of a national pattern. Furthermore, in some US cities, it only takes one or two big payouts to create a budgetary emergency (Goodwin, Shepard, and Sloan Reference Goodwin, Whitney and Carrie2020).Footnote ²²

The City’s Lack of Transparency and Misuse of Taxpayer Dollars to Cover Payouts

While Yates estimated that police misconduct had cost the city twenty million dollars in recent years, determining the precise cost was a more challenging task. During an August 2016 CfPP board meeting, Gross attributed the difficulty of getting “exact figures” to the city’s lack of transparency and told the board she needs a researcher to go through all the city council meetings to determine how many payouts have been made and the amount it paid out. She said that some of the payouts are being hidden and not reported by the Minneapolis City Council’s Ways and Means Committee, after it approves them. The lack of transparency in how cities pay for misconduct is not a problem unique to Minneapolis. In her empirical study of how cities, counties, and states budget and pay for misconduct, Joanna C. Schwartz (Reference Schwartz2016, 1210) found a lack of transparency nationwide. Alyxandra Goodwin, Whitney Shepard, and Carrie Sloan (Reference Goodwin, Whitney and Carrie2020) also found a lack of transparency by cities that engage in bond borrowing. The majority of cities they examined “were unable, or unwilling, to provide a full accounting” (6), and many disregarded sections of their data requests or sent incomplete responses to their questions. The CfPP had a similar experience when trying to hold the city accountable for misusing taxpayer dollars.

In August 2016, Gross filed a formal complaint to the Minnesota Office of the State Auditor against Minneapolis for refusing to indemnify Blayne Lehner—an on-duty MPD officer who acted outside the scope of his employment during a 2013 incident—but still paying out $360,000 to the victim. She noted that in the past several years the city has frequently used taxpayer dollars on payouts to cover incidents that the city recognized as involving “willful or malicious acts and acts outside the scope of the officer’s employment.” Gross requested that the state auditor open an investigation into “this misuse of taxpayer funds,” but the office did not accept her complaint and, therefore, would not investigate the matter (CfPP 2016f). Gross contends that this lack of transparency is part of a larger pattern in Minneapolis. On several occasions, local newspapers have reported on a misconduct-related lawsuit that the city paid out, but the payout will not appear in the city’s itemized list of payouts when Gross makes a formal public data request. She says: “The city itself doesn’t even know when, to whom, and how much it’s paying out.”Footnote ²³

City’s Number One Risk Management Strategy: “Scorched-Earth Prosecution”

As the CfPP sought to develop a new objective of risk management through professional liability insurance, Kroll argued that the city ought to adopt a tougher legal strategy. He claimed that compared to other cities Minneapolis is not tough enough in fighting frivolous lawsuits that result in lucrative settlements for plaintiffs:

Gross challenged Kroll’s claims that the city is just giving away money to those who file supposedly frivolous lawsuits:

Thus, Kroll and the CfPP leaders perceived the issue of misconduct and the city’s litigation response in fundamentally different ways. The CfPP viewed large financial settlements as an inevitable outcome of legitimate lawsuits filed due to the human costs of misconduct. To develop a new objective of improved risk management, the CfPP sought to replace the city’s “scorched-earth prosecution” strategy with police misconduct insurance to reduce city payouts and misconduct. In contrast, Kroll, who was elected MPF president by police to represent the force’s nearly 880 sworn officers, wanted to adopt an aggressive zero-tolerance approach. Kroll advocated this position by appearing to minimize and deflect attention away from the legitimate human costs and financial risk that police who commit misconduct pose to the community while, at the same time, claiming that community members filing “weak” excessive use-of-force claims pose the real financial risk.Footnote ²⁷ These contrasting viewpoints illustrate the uphill challenge that the CfPP faced in trying to reconceptualize problem officersFootnote ²⁸ as a financial risk category that needs to be responsibilized.

Building a Bipartisan Coalition to Support Police Misconduct Insurance

Since the 2008 financial crisis, humonetarian discourse has started to dominate political and public discussions about criminal justice and correctional policies (Aviram Reference Aviram2015). In the case of penal reform, conservatives are increasingly motivated, at least in part, by a cost savings approach involving bipartisan efforts to curb the war on drugs and reduce mass incarceration, prison overcrowding, and sentencing (Dagan and Teles Reference Dagan and Teles2016). Hadar Aviram (Reference Aviram2015, 6) contends that bipartisanship is a defining feature of humonetarianism: “Humonetarian discourse is characterized by turning to former enemies—libertarians, old-school free market economists, and financially prudent politicians of all stripes—as new allies to create initiatives and alternatives that roll back years of punitive legislation.” To influence police accountability governance, the CfPP also deployed humonetarian discourse that emphasized bipartisanship.

In 2012, before the CfPP officially formed, CUAPB spent a year crafting the insurance amendment and had a bipartisan coalition vet the wording, which comprised insurance professionals, labor attorneys, retired police officers, and community stakeholders from across the political spectrum. Gross says that they all thought the insurance amendment was a “brilliant idea” for addressing misconduct and fighting government corruption.Footnote ²⁹ During the campaign, Bicking remarked: “I think we have as much support among Republicans as we do among Democrats. The libertarians … definitely support us.”Footnote ³⁰ At a CfPP board meeting in August 2016, a board member named Kim sought to increase bipartisan support by brainstorming cost-centered campaign slogans:

Thus, in the CfPP’s effort to influence police accountability governance, it deployed humonetarianism to increase bipartisan support by illuminating how taxpayers could save money currently being spent on misconduct, if they supported the insurance amendment.

Creating a New Insurance Market

John Rappaport (Reference Rappaport2016, Reference Rappaport2017) and Joanna C. Schwartz (Reference Schwartz2016), preeminent legal scholars on police misconduct, payouts, and liability insurance, have noted the honest brokerage role that insurers can play to force cities to reform their police departments. Bringing in insurance companies is a solution to the problem that Gross also supported: “Right now, we have people working in the city of Minneapolis who have cost us multiple million-dollar lawsuits. … An insurance company isn’t gonna put up with that. … They’re gonna say, ‘You pay more for your premiums just like a bad driver, … repeat drunk drivers, … or … eventually become uninsurable.’”Footnote ³¹ In the new penology, the government employs novel techniques, like actuarial risk assessments, to manage aggregates of dangerous criminal categories based on criminal histories. In flipping the new penology, the CfPP sought to use similar techniques, while creating a new insurance market, to manage aggregates of dangerous police categories based on misconduct histories and other risk indicators (for example, settlements, judgments, complaints, claims) (CfPP 2013a). Just as aggregates of offender classes are surveilled in prisons and on parole and probation in the new penology of corrections (Feeley and Simon Reference Feeley and Simon1992), officers would be surveilled by risk management and insurance experts under the CfPP’s proposal, incorporating various risk indicators to construct risk profiles. Creating a new insurance market to regulate police behavior though remains unchartered territory, especially in this emerging “algorithmic age,” to which the insurance industry is quickly adapting (Elliott Reference Elliott2017; Hannah-Moffat Reference Hannah-Moffat2019; Rothschild-Elyassi, Koehler, and Simon Reference Rothschild-Elyassi, Johann, Jonathan and Deflem2019). The novelty of adopting such insurance was made clear during the CfPP’s board meetings and volunteer orientations as well as during the CfPP’s legal challenges with the city over placing the proposed amendment on the ballot.

During a CfPP question-and-answer session at an orientation for new volunteers in July 2016, a thirty-something-year-old Black female volunteer asked Gross who would pay for the insurance. Gross said that the city would cover the base rate and that if the officer acted outside the scope of his duties, the city and officer could be sued. Bicking added that this insurance idea worked a lot like car insurance: the officers would have a lawyer from the insurance companies working on their behalf, and the insurance company would defend them against the plaintiff. A white volunteer in her late thirties then asked if they had an insurance company in mind. Before answering the question, Gross acknowledged that she personally could not stand insurance companies but that they played an important risk management role. She then said that Wright USAFootnote ³² and Travelers are the biggest players in insurance, implying that such insurance companies would provide coverage and that in fifteen years she thinks people will look back and say: “What? They didn’t have insurance back then?” She envisioned that creating this new insurance market would later be viewed as common sense.

Building on Otu (Reference Otu2006) and the CfPP’s campaign efforts, Ramirez et al. (Reference Ramirez, Marcus, Lauren and Carly2019) have similarly advocated mandatory professional liability insurance for officers. Like the CfPP, the central analogy they employ is automobile insurance. Though they acknowledge that other professions, like law and medicine, encounter risks that are often insured, they contend that automobile insurance is a more appropriate analogy to policing than professional liability insurance in other professions. For instance, medical malpractice insurance employs “broad risk classes” (for example, by specialty) and rarely adjusts premiums based on a doctor’s behavior or disciplinary record in like manner as a motorist who experiences increased premiums due to a bad driving record. Consequently, low-risk doctors end up subsidizing the legal liability of high-risk ones since doctors who share a specialty generally pay the equivalent amount. Because premiums remain unaffected, prior claims history appears not to affect the quality of care provided by doctors. Furthermore, while automobile insurance is compulsory nationwide, individual-level insurance in other professions is not. Up until 2017, Oregon was the only state that required all lawyers to carry professional liability insurance. In the medical profession, only seven states currently require doctors to carry medical malpractice insurance. In contrast to using broad risk classes, which offer no economic incentive for improving one’s behavior, raising drivers’ insurance premiums and/or deductibles based on their bad driving histories have both been shown to decrease the number of auto accidents.

In August 2016, Tracey N. Fussy, a Minneapolis assistant city attorney, submitted an affidavit to the county district court during the city’s court battle with the CfPP over the legality of placing the insurance amendment on the ballot. In the city’s attempt to challenge the practicality of the proposed amendment, the affidavit included a letter from John M. Ratelle, the city’s insurance broker and risk advisor. Ratelle raised a number of potential insurance and risk-related issues if Minneapolis were to mandate individual insurance. He explained that there would not likely be different base rates for officers based on one’s risk level and position within the force (for example, SWAT team members versus traffic officers), as the CfPP envisioned, because an insurance company would employ broad risk classes:

In an internal legal strategy memo circulated among board members, the CfPP leaders sought to refute Ratelle’s claim that broad risk classes would be employed. They believed that an administrative officer would have a lower base rate than a patrol officer and “if a desk officer is reassigned to patrol during the year, the rate [will] get … adjusted.” The CfPP further argued that setting the base rate for officers would be dependent upon different individual risk factors and considerations “just as the base rate for auto insurance differs based on the location, the type of car, the miles driven” (CfPP 2016a).

Ratelle further claimed that, if several claims were filed against officers, then the insurer would likely raise premiums of both individual officers and the entire force. Consequently, low-risk officers would end up subsidizing the legal liability of high-risk ones since the whole force would be affected by increased premiums regardless of an officer’s involvement in the claims. Ratelle then noted that a similar scenario would likely play out if a lawsuit were filed. Regardless of the merit of the suit, if the insurer decided it was more cost effective to settle out of court than to go to trial, the insurer would then “recoup the costs by raising the rates of the insured officer and potentially the group.”Footnote ³⁴ Thus, Ratelle’s claims appeared to undermine one of the CfPP’s central arguments that the premiums of ethical and low-risk officers would remain stable and incentivize them to continue to refrain from misconduct (CfPP 2013a, 2016m). However, Bicking contended that it would not be logical for insurance companies to recoup costs by raising rates on the group. But if they did, he argued, then ethical and low-risk officers would be incentivized in a different way: to intervene and prevent officers, particularly high-risk ones, from committing misconduct to ensure that their premiums do not increase.Footnote ³⁵

At an August 2016 board meeting, the board discussed how it believed base rates would be determined and the cost of them. Bicking explained that, if officers are on the beat in different neighborhoods, their base rate would still be the same as officers patrolling other neighborhoods. So even if they work in high-crime areas and, therefore, have higher incidents of use of force than officers in lower-crime areas, they should not have higher rates of police misconduct that would increase their insurance premiums since they would still be acting within the scope of their employment. Gross then presented her research, finding that the base rate per federal officer was three thousand dollars. Bicking estimated that it would cost between one thousand to one thousand five hundred dollars per year for the base rate for officers with no risks or low risks to be insured. He then reminded the board that, since this is a new proposal, insurance companies have not yet figured out the details.

In her presentation before the PCOC in June 2016, Gross made clear the CfPP’s uncertainty over insurance costs:

Thus, even if the projected costs seem high, Gross contended that they will eventually go down after insurers employ “risk management strategies” to weed out the aggregated risk category of “problem officers.” This would have been a likely outcome since insurance opens up a population to indefinite scrutiny as subclasses of risk are finely specified, and risks that undermine the integrity of the risk pool are unpooled (Ericson, Doyle, and Barry Reference Ericson, Aaron and Dean2003). Though Rappaport remains skeptical (qtd. in Balko Reference Balko2016), the CfPP believed that the logic of loss prevention and the current use of risk management techniques applied in the case of municipal-level police insurance (Rappaport Reference Rappaport2017) would extend to individual-level insurance, which Ramirez et al. (Reference Ramirez, Marcus, Lauren and Carly2019) have also recently suggested and on which they have elaborated.

At an earlier board meeting in June 2016, Gross said that insurance companies are starting to discuss this individual insurance concept because they see police as an untapped insurance market. She noted how Insurance Business Magazine had published an article earlier that spring about the role that insurance companies could play in addressing police misconduct.Footnote ³⁷ In what appeared to be more of an observation than a serious strategy proposal, Gross pondered whether insurance companies should be funding the CfPP’s effort since the amendment was in their economic interest. Kim said that the CfPP did not want to accept the insurance industry’s money because it would take away from the campaign’s message of police accountability.

In late August 2016, after the city council and district court blocked the CfPP’s ballot measure, the city argued to the Minnesota Supreme Court that state law and the police union contract require that the city indemnify officers. The CfPP rebutted, arguing that the proposed amendment “addressed an area not covered by state law: insurance for claims of misconduct involving willful and malicious acts outside of the scope of the officer’s employment, where the City is not required under law to indemnify.”Footnote ³⁸ In early August 2016, the CfPP argued before the city council that, in such cases, “the City is under no obligation to defend … or pay damages resulting from legal actions and … sometimes … has chosen not to” (CfPP 2016g). Ratelle challenged the practicality of the CfPP’s proposal: “I have never seen an Insurance Company issue a policy that only covers ‘Malfeasance’. … [T]he Insurance Company could deny the claim if they were only brought in when ‘Malfeasance’ was established for prejudice.”Footnote ³⁹ In its internal legal strategy memo, the CfPP countered his argument: “If coverage is allowed by law, it is safe to presume that insurance companies will offer it—the beauty of the free market.” The CfPP then refuted another concern of Ratelle’s that its proposal overlapped with the city’s duty to indemnify:

Thus, in underscoring the city’s inconsistent indemnification practices, the CfPP challenged what it perceived as a “law on the books” versus “law in action” discrepancy. By addressing an area of indemnification not covered by state law and the police union contract,Footnote ⁴⁰ the CfPP strategically crafted its proposal to allow insurers to weed out problem officers. Achieving this reform through a grassroots referendum would have enabled the community to influence the future collective bargaining process and police union contract, thus circumventing labor protections against officers being fired. Since police union contracts often “contain provisions that can insulate frontline officers from accountability,” and many state labor laws exclude community input in the collective bargaining process (Rushin Reference Rushin2017b, 1222), this action would have been a radical departure from the status quo.

Engaging the Public Safety Debate: Police Misconduct Insurance versus the “Ferguson Effect”

Rappaport worries that requiring police to carry their own liability insurance would impose too much financial burden on officers and that they may start quitting once their premiums are too high (qtd. in Balko Reference Balko2016). But upending the status quo of police impunity by driving out rogue officers whose repeated misconduct makes them unable to pay higher premiums or uninsurable was precisely the CfPP’s goal. The CfPP implicitly sought to apply the new penological strategy of selective incapacitation, which Simon and Feeley (Reference Simon, Feeley, Thomas and Cohen2003, 102) view as “the exemplar of the new penology.” Thus, the CfPP’s primary aim was not to rehabilitate or retrain problem officers but, rather, to bring about substantial aggregate effects in the reduction of misconduct by driving them out of the department to create a more professional and safer working environment for ethical and low-risk officers and to increase public safety.

Bicking claimed that, instead of firing some rogue officers, the city promotes them to internal desk jobs just to get them off the street, so that they have minimal, if any, direct contact with the public. If insurers applied broad risk classes and charged every officer a base rate covering the highest risk of policing activity, as Ratelle anticipated, insurers would still have discretion not to insure high-risk officers, including those who have escaped accountability by being reassigned to internal desk jobs. This is because private insurers are able to exert pressure on departments to terminate problem officers and sometimes succeed in doing so (Rappaport Reference Rappaport2017). If the base rates varied depending on one’s misconduct history and position within the force, as the CfPP envisioned, insurers would have discretion to offer a base rate covering the highest risk of policing activity for low- and moderate-risk officers, while either terminating high-risk officers or reassigning them to low-risk positions to reduce police liability and increase public safety.

Lieutenant Kroll, on the other hand, advocated the “Ferguson effect,” arguing that violent crime in US cities is rising due to increased scrutiny of officers following the widely publicized 2014 fatal shooting by police of Michael Brown, which has inhibited officers from proactive policing (Mac Donald Reference Mac Donald2016).Footnote ⁴¹ Kroll viewed proactive policing as synonymous with aggressive policing:

In contrast to Kroll, the CfPP’s ideal conception of proactive policing de-emphasized aggressive policing. The CfPP believed that insuring officers would challenge and reshape the current organizational culture that rewards such policing. In a July 2016 letter to the city council, Yates explained that by passing the insurance amendment “[o]fficers would be incentivized to engage in quality policing that increases community safety and improves police-community relations.” Failing to adopt an effective accountability mechanism like this, Yates said, will perpetuate not only financial costs but also human costs: “[O]ne must … consider the nonmonetary costs to people harmed by police misconduct and the cost to the community of distrust and poor police-community relations” (CfPP 2016d). Thus, the CfPP believed its campaign would promote a form of proactive policing predicated on community policing and de-escalation efforts that increase public safety and police-community trust.

During the campaign, in a National Public Radio interview, Kroll applied the Ferguson effect logic to argue against the insurance amendment. He stated that requiring such insurance would make officers overly cautious and prevent them from looking into suspicious activities. He further argued that “[i]f you don’t do that proactive police work, your likelihood of being sued is a lot less” (Kaste Reference Kaste2016). However, he did so without acknowledging that police who refrain from carrying out their duties—whether proactive or reactive—might still be held liable in a civil lawsuit (Otu Reference Otu2006) and that “[j]ustified use-of-force incidents should not raise the premium” (D. Ramirez et al. Reference Ramirez, Marcus, Lauren and Carly2019, 452). Moreover, researchers have previously found that “[o]fficer initiated aggressive behaviors … do not seem to be deterred to any substantial extent by concerns about liability” (Novak, Smith, and Frank Reference Novak, Smith and James2003, 363). Around the same time, in an interview with the Chicago Reporter, Kroll further argued against the amendment by trying to rebut the CfPP’s attempt to analogize police officers to professionals in other occupations who carry insurance: “Doctors, with the exception of those in the ER, have the luxury of analysis before, during and after their decisions. Lawyers have the opportunity to research, review and consult before they decide. … Comparing them to police officers who make split-second decisions is like a whole other realm” (Murphy Reference Murphy2016).

During the campaign, the CfPP board members struggled to rebut Kroll’s Ferguson effect argument, and, at a June 2016 board meeting, discussed ways to challenge it:

The group thus grappled with how to frame a response to accusations that its insurance proposal would undermine public safety by inhibiting officers from making split-second decisions and investigating suspicious activities.