CHICAGO
COASE-SANDOR INSTITUTE FOR LAW AND ECONOMICS WORKING PAPER NO. 763
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 585

AN INSURANCE-BASED TYPOLOGY OF POLICE MISCONDUCT
John Rappaport
THE LAW SCHOOL
THE UNIVERSITY OF CHICAGO
July 2016

Electronic copy available at: http://ssrn.com/abstract=2808106

DRAFT

AN INSURANCE-BASED TYPOLOGY
OF POLICE MISCONDUCT
John Rappaport*
July 8, 2016
Not all police misconduct is the same, and different
institutional regimes might manage different sorts of
misconduct most effectively. This Article surveys the universe of
police malfeasance from the perspective of an important but
underappreciated regulatory regime: liability insurance. Nearly
all but the very largest municipalities buy insurance that covers
claims alleging police misconduct. In assuming the financial
risk of bad police behavior, the insurers become motivated to
prevent it. Criminal procedure scholarship almost entirely
overlooks the salutary regulatory influence these insurers may
have on police activity. Yet insurance is no panacea. Indeed, a
principal aim of this Article is to probe the limits of the
insurance mechanism—the places where the effects of insurance
on policing are likely weak or even perverse. This exercise points
us toward a typology of misconduct, along with a corresponding
set of plausible approaches for reducing the occurrence of each
of the types identified. In particular, the Article distinguishes
varieties of police misconduct based on (1) the dollar-value of
the legal claims to which they give rise and (2) the length of the
delay between when the misconduct occurs and when a legal
claim is typically filed. The typology suggests, among other
things, that the insurance regime is a plausible surrogate for
some governmental regulation of police violence but not, at
present, of the sorts of misconduct that lead to wrongful
convictions.

* Assistant Professor of Law, The University of Chicago Law School. Thanks to Ken
Abraham, Will Baude, and Joanna Schwartz for helpful conversations and
feedback on drafts. Scott Henney provided excellent research assistance.

Electronic copy available at: http://ssrn.com/abstract=2808106

INTRODUCTION
Not all police misconduct is the same, and different institutional
regimes might combat different sorts of misconduct most effectively.
This Article surveys the universe of police misconduct from the
perspective of an important but underappreciated regulatory regime:
liability insurance. Most small and mid-sized municipalities in the
United States purchase insurance that covers a range of police
misconduct claims, from improper service of process to outright assault
and battery, discrimination, and other civil rights violations. 1 In
assuming the financial risk of bad police behavior, the insurers become
motivated to marshal their substantial resources to prevent it. Criminal
procedure scholarship almost entirely overlooks the salutary
“regulatory” influence these insurers may have on police activity, often
reasoning, mistakenly, as though little or nothing stands between
judicial opinions or statutes and officer discretion.2 Understanding how
insurers regulate the police to reduce liability and defense costs is
crucial in grasping how civil rights lawsuits deter police misconduct.
Yet insurance is no panacea. Indeed, a principal aim of this Article
is to probe the limits of the insurance mechanism—the places where the
effects of insurance on policing are likely weak or even perverse,
suggesting a need for insurance reform or other, more familiar
regulatory interventions. These include domains in which moral
hazard—that is, the propensity of insurance to reduce the insured’s
incentives to prevent harm—seems most likely to predominate. By
laying these cases alongside those in which regulation-by-insurance
appears to function well, I show how thinking about police misconduct
through the lens of liability insurance points us toward a typology of
“Municipality” and “police,” as used here, include both city- and county-level
entities and law enforcement officers.
2 I describe the phenomenon of police “regulation-by-insurance” in detail in
other work. See John Rappaport, How Private Insurers Regulate Public Police, 130
HARV.
L.
REV.
__
(forthcoming
2017),
http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2733783 [https://perma.cc/2EC3-SBHE]. For two of the
very few other legal academic papers to touch on insurance, see Joanna C.
Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63 UCLA
L. REV. 1144 (2016) [hereinafter Schwartz, How Governments Pay]; Joanna C.
Schwartz, Who Can Police the Police?, 2016 U. CHI. LEGAL F. __; see also CHARLES
R. EPP, MAKING RIGHTS REAL 115–37 (2009) (studying insurance among numerous
factors that might influence “legalized accountability” by police agencies); Candace
McCoy, How Civil Rights Lawsuits Improve American Policing, in HOLDING POLICE
ACCOUNTABLE 111, 112 (Candace McCoy ed., 2010) (asserting that “insurance
companies [have] demanded that police improve their policies and practices in
adherence to constitutional requirements and thus avoid monetary payouts to
injured citizens”).
1

Electronic copy available at: http://ssrn.com/abstract=2808106

misconduct, along with a corresponding set of plausible approaches for
reducing the incidence of each of the types identified. My typology
suggests, among other things, that the insurance regime is a plausible
surrogate for some governmental regulation of police violence but not—
at least not yet—of the sorts of misconduct that lead to wrongful
convictions.
To construct my typology, I distinguish types of police misconduct
along two dimensions. First, I consider the dollar value of the legal
claims to which each type of misconduct typically gives rise. 3 Lowdollar-value claims are poor fodder for civil damages suits and, indeed,
rarely arise in that posture. Instead, criminal defendants assert these
claims defensively, to resist prosecution. As a class, these claims pose
little threat to insurers. Insurers therefore have little incentive to
regulate the underlying conduct. High-dollar claims, in contrast, create
sufficient financial incentive to induce potential plaintiffs—and
plaintiffs’ attorneys—to sue. They give insurers reason to pay attention.
This does not mean, however, that civil damages suits work equally
well to deter all types of high-dollar misconduct. A second crucial
consideration is the length of time between the occurrence of
misconduct and the filing of a lawsuit. In insurance parlance, a claim of
police misconduct may have either a “short tail” or a “long tail.”4 Longtail claims, I will explain, pose great difficulties for insurers, and there
are reasons to doubt that insurers are effectively managing the risks
that give rise to these claims.
These two criteria—the size of a claim’s expected payout and the
length of its tail—generate four categories of police misconduct. The
Article’s structure is accordingly straightforward: In each of the four
sections that follow, I describe one category of misconduct along with a
corresponding set of potential solutions. I begin in Part I with highdollar, short-tail claims. The archetype here is a claim that alleges the
use of excessive force. When a police officer employs unlawful force, the
harm he inflicts is often substantial (high-dollar)—especially where
death results—and also immediately apparent (short-tail). Drawing on
original qualitative research of the police liability insurance industry, I
explain how insurers work to manage the problem of police violence and
For a different typology that also sorts civil rights claims according to their
dollar value, see Paul D. Reingold, Requiem for Section 1983, 3 DUKE J. CONST. L. &
PUB. POL’Y 1, 13 (2008) (organizing claims by dollar value and substantive
strength).
4 “Long-tail claims are those which are not brought (or if brought, not resolved)
for some years after the action by the defendant that gives rise to the claim.”
Kenneth S. Abraham, Environmental Liability and the Limits of Insurance, 88
COLUM. L. REV. 942, 964 n.69 (1988). In practice, legal claims lie on a spectrum,
ordered by the length of their tail; the trait is continuous, not binary.
3

2

Electronic copy available at: http://ssrn.com/abstract=2808106

suggest why they may fare better in some regards than traditional
sources of regulation.5 The potentially provocative implication is that,
despite present political pressure to develop public-law solutions to
police violence, limited government resources may be better spent
fighting other kinds of law enforcement misconduct. To be clear, I do
not suggest that private regulation by insurers can or should substitute
for all public regulation of police use of force—only that, if public
regulatory resources are scarce, we might direct them elsewhere and let
insurers, where they operate, shoulder some of the load in this domain.
In Part II I turn to high-dollar, long-tail claims. Here I have in mind
“wrongful conviction” claims filed by individuals who have been
imprisoned and later exonerated of criminal wrongdoing. The average
exoneree spends over thirteen years wrongfully incarcerated (long-tail).
Damages for this sort of harm can be immense (high-dollar). Not all
wrongful conviction claims allege police misconduct, but many do. And
when they do, they typically fall within the standard police liability
policy. Insurers, therefore, have a financial incentive to prevent the
kinds of misconduct that lead to wrongful convictions. But the long tail
creates complications that make the risk difficult for insurers to price
and manage. The relative infrequency of the claims exacerbates these
challenges. In this context, insurers may actually make things worse
rather than better by creating (but not controlling) moral hazard. And
because the rate of exonerations is rising,6 it is reasonable to fear that
wrongful conviction cases will, before too long, disrupt this corner of the
liability insurance market. With an eye on this possibility, I suggest two
sets of reforms—one focused on improving the insurability of the
underlying risk and the other on alternative, non-insurance-based
5 In
my initial research for Rappaport, supra note 2, I conducted
semistructured telephone interviews with twenty-nine members of the industry,
typically high-ranking officials within their respective firms. I located my subjects
using a “snowball sampling” technique. See, e.g., JOHN LOFLAND ET AL., ANALYZING
SOCIAL SETTINGS: A GUIDE TO QUALITATIVE OBSERVATION AND ANALYSIS 43 (4th ed.
2006) (discussing “snowball” or “chain-referral” sampling: “a method for generating
a field sample of individuals possessing the characteristics of interest by asking
initial contacts if they could name a few individuals with similar characteristics
who might agree to be interviewed”). My interview subjects were geographically
diverse, including representatives of firms in every time zone and consultants who
travel the country. I followed up on some of these interviews with targeted
questions via email or a quick additional telephone call, which I did not count
toward the total twenty-nine. I also attended the 2015 annual conferences of the
Association of Governmental Risk Pools and the International Association of Chiefs
of Police. For this Article—in particular for the research in Part II—I requested
additional telephone interviews with the relevant experts who had been most
helpful during the first round of interviews; I ended up speaking with eight of
them. I ceased interviewing new subjects when responses became repetitious.
6 See sources cited infra note 78.

3

regulatory mechanisms for reducing police malfeasance that leads to
wrongful convictions.
The third and fourth categories of police misconduct in my typology
are largely—though not entirely—outside insurers’ purview. I therefore
deal with them more quickly. The third category, addressed in Part III,
contains low-dollar, short-tail claims. This includes many run-of-themill violations of law, like an investigatory stop unjustified by
reasonable suspicion or the failure to give Miranda warnings before
custodial interrogation. 7 Although the harm from these interactions
manifests immediately (short-tail), it is largely non-compensable in the
eyes of the law (low-dollar). To police these violations, we rely heavily
on criminal defendants to act as private attorneys general, and on the
occasional suit for injunctive relief. These tools undoubtedly help, but
more is needed. Drawing on prior work, 8 I suggest how we might
reorient some of our constitutional doctrine to focus defendants’ claims
on systemic rather than individualized concerns.
The last category, the topic of Part IV, involves low-dollar, long-tail
claims. It is not immediately obvious what, if anything, belongs in this
box. But I will make the case that one unique type of claim plausibly
does, at least some of the time: a claim alleging racial profiling by the
police. Under extant doctrine, absent a smoking gun, a colorable
profiling claim must marshal statistical evidence from a broad sample
of other cases. This creates, in many cases, a delay (i.e., a long tail)
between the profiling and the potential lawsuit brought to challenge
it—a delay that distinguishes these claims from mine-run (short-tail)
constitutional violations. And here too, even a successful plaintiff is
unlikely to recover much in damages (low-dollar). The unfortunate
upshot, I think, is that neither civil-damages actions nor criminal
litigation will work very well to combat racial profiling. Recourse to
more traditional forms of regulation, like legislation and administrative
rules, is therefore necessary. Criminal procedure doctrine might be refashioned to encourage this political regulation, I will suggest, but I do
not think that doctrine alone can save the day.
Figure 1 pulls together the strands of the typology:

See Terry v. Ohio, 392 U.S. 1 (1968); Miranda v. Arizona, 384 U.S. 436 (1966).
See John Rappaport, Second-Order Regulation of Law Enforcement, 103
CALIF. L. REV. 205 (2015).
7
8

4

High-dollar

Short-tail

Long-tail

Low-dollar
Terry;

Use of force

Miranda

Wrongful

Racial

convictions

profiling

Figure 1

This model, of course, is only one of myriad schemes we could sketch
to organize the universe of police misconduct. Those with different
frameworks or objectives might demarcate categories along different
dimensions. My approach is useful because it tells us something about
what solutions are likely to gain traction on each type of problem. But it
is not the only way to think about the topic.
Two caveats are necessary before proceeding. First, in my
descriptive case—that is, in determining how to classify different types
of police misconduct—I take legal doctrine on liability and damages as
given. This is why I refer to claims as “high-dollar” and “low-dollar”
rather than “high-value” and “low-value”: I mean to convey nothing
about the normative value of different claims, only their dollar value
under legal precedent. Second, I largely obscure the distinction among
different types of insurance providers. As I explain elsewhere, although
most municipalities purchase police liability insurance on the market,
that market is segmented between commercial insurers and
intergovernmental risk pools.9 And the largest municipalities tend to
“self-insure.” In large municipalities that take self-insurance seriously,
and replicate in house much of what market insurers do, the distinction
between self-insurance and market insurance may be inconsequential.
But where “self-insurance” really just means “going bare”—which may
be the typical case10—what I say about the influence of insurance on
A risk pool is a nonprofit, mission-driven organization formed by a group of
local government entities, usually within one state, to finance a risk, typically by
pooling or sharing that risk. The entities themselves ordinarily own and govern the
pool. See Rappaport, supra note 2 (manuscript at 21–22). See generally Jason E.
Doucette, Note, Wading in the Pool: Interlocal Cooperation in Municipal Insurance
and the State Regulation of Public Entity Risk Sharing Pools—A Survey, 8 CONN.
INS. L.J. 533, 541–42 (2002).
10 See, e.g., CAROL A. ARCHBOLD, POLICE ACCOUNTABILITY, RISK MANAGEMENT,
AND LEGAL ADVISING 25 (2004) (concluding, based on survey results, that “risk
9

5

policing likely does not apply, at least not in full. Unfortunately, too
little is known about municipal self-insurance for police liability to
permit any confident generalizations, which is why I do not separately
analyze self-insured and market-insured municipalities.
My primary aim is to help organize and systematize our thinking
about how to police the police. Even those who disagree with the
specifics of my typology, I hope, will take away two thematic points:
First, “police misconduct” is a capacious and variegated concept, and
strategies that are necessary or effective to combat one kind of
misconduct may not be necessary or effective to fight another. Second,
one cannot fully understand how our legal system does and can deter
police misconduct without understanding the role that liability insurers
play in that endeavor, both for good and ill.
I.

HIGH-DOLLAR, SHORT-TAIL

Fourth Amendment doctrine prohibits the police from employing
excessive force in effecting a search or seizure.11 Police who violate this
stricture may be ordered to pay compensation for personal injuries they
inflict. Damages, especially in cases involving debilitating injury or
death, can be quite high; lawsuits stemming from recent high-profile
officer-involved deaths have settled for around five or six million dollars
each.12 And the types of injuries these cases involve typically manifest,

management programs are still in the infancy stage of being embraced by police
agencies”); Joanna C. Schwartz, Introspection Through Litigation, 90 NOTRE DAME
L. REV. 1055, 1095–1101 (2015) (reviewing evidence that few police departments
have risk managers); Joanna C. Schwartz, Myths and Mechanics of Deterrence: The
Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023
(2010) (finding that the largest police agencies only rarely learn from lawsuits filed
against them or their officers).
11 See, e.g., Graham v. Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471
U.S. 1 (1985).
12 See, e.g., Monica Davey, Chicago Pays $5 Million Over Killing of Teenager,
N.Y. TIMES, Apr. 16, 2015, at A15 (reporting $5 million settlement in death of
Laquan McDonald); Richard Fausset, Settlement Reached in Shooting by Officer,
N.Y. TIMES, Oct. 9, 2015, at A24 (reporting $6.5 million settlement in death of
Walter Scott); Sheryl Gay Stolberg, University of Cincinnati To Pay $5 Million to
Family in Killing by Police, N.Y. TIMES, Jan. 19, 2016, at A16 (reporting $4.85
million payout in death of Samuel DuBose, which “appears in line with other
recent settlements of cases involving police officers”); Sheryl Gay Stolberg,
Baltimore Announces $6.4 Million Settlement in the Death of Freddie Gray, N.Y.
TIMES, Sept. 9, 2015, at A20 (reporting $6.4 million settlement in death of Freddie
Gray, which “[l]egal specialists said . . . was in line with settlements for recent
racially charged police misconduct cases,” including Eric Garner, whose estate
settled for $5.9 million).

6

and are provable, immediately after the misconduct occurs. Those two
characteristics make use-of-force claims high-dollar, short-tail claims.
Because the financial stakes can be so high—and because the use of
excessive force is typically not causally related to the discovery of
incriminating evidence—use-of-force claims are usually litigated in civil
suits rather than defensively through suppression motions in criminal
cases. 13 Scholars have raised serious questions about how well civil
rights suits work to deter police misconduct, and to restrain the use of
force in particular.14 Some point out, for example, that “excessive force
doctrine is extraordinarily abstract.” 15 “This uncertainty in legal
authority,” one commentator argues, “results in a lack of institutional
guidance and leaves police officers to exercise their own discretion.”16
I take no issue with the premise that excessive force doctrine is
abstract and uncertain. But it does not follow that police officers have
free rein. That conclusion follows only if we ignore other sources of
police regulation, including (though certainly not limited to) regulationby-insurance. The standard police liability policy, however, covers
excessive-force claims,17 so insurers, not municipalities, typically bear
the financial risk of police violence. For reasons that I (and others) have
13 See Nancy Leong, Making Rights, 92 B.U. L. REV. 405, 425 (2012) (finding
that “98% of excessive force claims are litigated in the civil context”); see also id. at
441 (asserting that criminal “courts routinely ignore the use of force in analyzing
the legality of an investigative stop”).
14 See, e.g., NAT’L RESEARCH COUNCIL OF THE NAT’L ACADS., FAIRNESS AND
EFFECTIVENESS IN POLICING 278–80 (Wesley Skogan & Kathleen Frydl eds., 2004);
Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 NW. U.L. REV.
1609, 1626–34 (2012); Richard Emery & Ilann Margalit Maazel, Why Civil Rights
Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and
a Proposed Solution, 28 FORDHAM URB. L.J. 587 (2000); Diana Hassel, Living a Lie:
The Cost of Qualified Immunity, 64 MO. L. REV. 123, 145 n.106 (1999); Daryl J.
Levinson, Making Government Pay: Markets, Politics, and the Allocation of
Constitutional Costs, 67 U. CHI. L. REV. 345 (2000); Daniel J. Meltzer, Deterring
Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants
as Private Attorneys General, 88 COLUM. L. REV. 247, 283–86 (1988); Joanna C.
Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885 (2014). But see, e.g.,
Myriam E. Gilles, In Defense of Making Government Pay: The Deterrent Effect of
Constitutional Tort Remedies, 35 GA. L. REV. 845 (2001).
15 Leong, supra note 13, at 446; see also Rachel Harmon, When Is Police
Violence Justified?, 102 NW. U.L. REV. 1119, 1127 (2008) (calling the doctrine
“indeterminate” as well as “unprincipled”).
16 Leong, supra note 13, at 447.
17 See, e.g., Law Enforcement Liability Coverage Form, Nat’l Cas. Co. 5–6,
http://euclidps.com/2/wp-content/uploads/2014/05/
Law_Enforcement_II_PE_PL_2_0802.pdf [https://perma.cc/E538-LB3C]; see also
Kenneth S. Abraham, Four Conceptions of Insurance, 161 U. PENN. L. REV. 653,
656 (2013) (stating that “virtually all property-casualty insurance policies . . . are
standard-forms used by most insurers”).

7

explained,18 this financial arrangement gives insurers the incentive to
reduce the frequency of these claims. Indeed, when a prominent risk
management expert compiled a list of twelve “high risk/critical tasks” in
policing that warrant the attention of insurers and risk managers, use
of force topped the list.19
In Section A below, I describe the regulatory techniques insurers
use to manage the risk of excessive force. In Section B, I discuss the
interaction between regulation-by-insurance and more traditional
modes of public regulation.
A.

How Insurers Regulate the Use of Force

As I have detailed in other work, insurers use a variety of tools to
try to tame police violence, including operational policy development
and education, training, auditing, and risk-responsive underwriting and
rating. Insurers invest substantially, for example, in improving covered
agencies’ policies on the use of force. At the outset of the insurance
relationship, the insurer typically requests copies of the agency’s
policies.20 The insurer, sometimes contracting with outside attorneys or
expert consultants, then works with the agency to ensure the policy
incorporates industry best practices.21 In particular, insurers encourage
agencies to adopt a “use-of-force continuum” that specifies the degree of
force appropriate in various scenarios, and to focus on de-escalating
tense citizen encounters.22 At least some empirical evidence suggests
See Rappaport, supra note 2 (manuscript at 16–17); see also Omri BenShahar & Kyle D. Logue, Outsourcing Regulation: How Insurance Reduces Moral
Hazard, 111 MICH. L. REV. 197, 203–05 (2012).
19 G. PATRICK GALLAGHER, SUCCESSFUL POLICE RISK MANAGEMENT 53 (2014);
see also ROBERT J. GIROD, POLICE LIABILITY AND RISK MANAGEMENT 163 (2014)
(placing “[u]se of force and deadly force” atop a list of the “most common ‘actionable
conduct’ involving civil rights liability” for police).
20 See, e.g., Police Professional Liability Insurance Application, Prof’l Gov’tal
Underwriters, Inc. (June 2014), http://www.pgui.com/App_Content/media/
2014%20apps/
DRWN%20PPL%201010%2006_14%20PGU%20Police%20New%20Bus%20Applicat
ion.pdf [https://perma.cc/XLA2-36Z3].
21 See, e.g., Trident Risk Points: Operational Policies & Procedures: Use of
Force
Policy
Elements,
Trident
Ins.
Servs.
(July
2012),
https://www.argolimited.com/media/03C10U7X865H/docs/en_US/
9a5e44de9e07465726bcb14894240b67ba9c4565/5PLYTFCP9D5H/Trident-LELUse-of-Force-Policy-Elements-2012.pdf [https://perma.cc/2VCJ-QJAW]; see also
Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Conviction
Law, 2005 WIS. L. REV. 35, 107 (explaining that municipal liability “can be
premised on a police department’s deviation from national police practices”).
22 See Focus On: Police—Excessive Use of Force, Munich Re (May 2015),
https://www.munichre.com/site/mram-mobile/get/documents_E876514504/mram/
18

8

that these policies matter—that a good use-of-force policy helps reduce
the use of excessive force. 23 Throughout the insurance relationship,
insurers also disseminate written materials and videos designed to
educate officers (and agency leadership) about the appropriate use of
force, and some even engage in classroom instruction.26 Many insurers
also provide financial incentives for agencies to seek accreditation from
a recognized authority, such as the Commission on Accreditation of Law
Enforcement Agencies. 27 Accreditation requires, among other things,
continuous compliance with a thirteen-part set of standards on the use
of force.28
assetpool.mr_america/PDFs/3_Publications/Research_Spotlight/
FOCUS%20ON_Excess-Force.pdf [https://perma.cc/4LW9-T4S6]; Trident Risk
Points: Operational Policies & Procedures: Suggested Controls for Electronic Stun
Weapons, Trident Ins. Servs. (July 2012), https://www.argolimited.com/media/
03C10U7X865H/docs/en_US/dad1345ec51a64376baf01f33f257328aa66bfd5/
G5V9I05T5956/Trident-LEL-Electronic-Stun-Weapon-Policy-2012.pdf
[https://perma.cc/SA9W-DU3M]; Trident Ins. Servs., supra note 21; see also The
Use-of-Force Continuum, NATIONAL INSTITUTE OF JUSTICE, OFFICE OF JUSTICE
PROGRAMS (Aug. 4, 2009), http://www.nij.gov/topics/law-enforcement/officer-safety/
use-of-force/Pages/continuum.aspx [perma.cc/L2M3-S8LK]. A recent report by the
Police Executive Research Forum challenges the continuum’s status as a “best
practice,” arguing that the continuum can encourage officers to escalate encounters
and that “there are more effective ways to respond to many threats than through a
use-of-force continuum.” POLICE EXEC. RESEARCH FORUM, GUIDING PRINCIPLES ON
USE OF FORCE 19–20 (2016).
23See, e.g., Stephen A. Bishopp et al., An Examination of the Effect of a Policy
Change on Police Use of TASERs, 26 CRIM. J. POL’Y REV. 727 (2015) (electronic stun
weapons); James J. Fyfe, Police Use of Deadly Force: Research and Reform, 5 JUST.
Q. 165 (1988) (firearms).
26 See, e.g., Munich Re, supra note 22; Law Enforcement Training Videos, IND.
MUN.
INS.
PROGRAM,
http://www.indianamip.com/law_enforcement.html
[https://perma.cc/5JKX-XUEG] (last visited Aug. 31, 2015) (listing dozens of
training videos covering topics such as “Straight Baton Techniques,” “Line Officer
Tactical Shotgun,” and “Basic and Power Handcuffing Techniques”); Telephone
Interview with Consultant A (Aug. 16, 2014) (describing having conducted, on
behalf of insurers, “hands-on” training on use of force, transportation of prisoners,
and other related topics).
27 Risk Management, Liability Insurance, and CALEA Accreditation, CALEA,
http://www.calea.org/content/risk-management-liability-insurance-and-caleaaccreditation [https://perma.cc/UW7A-3VRU] (last visited Aug. 31, 2015)
(maintaining list of “liability insurance providers known to CALEA to offer some
type of financial incentive to CALEA accredited agencies”); Ileana Garcia, Slidell
Police Accreditation Keeps the Department’s Insurance Rate Low, SLIDELL SENTRYNEWS, reprinted in CALEA UPDATE MAG., Feb. 2001, http://www.calea.org/caleaupdate-magazine/issue-75/accreditation-works/slidell-police-accreditation-keepsdepartments-in [https://perma.cc/H43T-YXMS].
28 See Standards Titles, CALEA, http://www.calea.org/content/standards-titles
[perma.cc/D2VM-9ZT8] (last visited Nov. 30, 2015) (listing standards); Law

9

Importantly, insurers’ efforts extend well beyond the Fourth
Amendment’s ambit into an array of extra-legal considerations that
likely affect the frequency and severity of use-of-force events. Consider
four brief examples. First, insurers educate officers on managing the
significant stresses of the job.29 Officers who handle stress poorly, the
evidence suggests, are more likely to act out. 30 Second, insurers
encourage psychological testing of each job applicant “to ensure that the
applicant is free of mental illness or other defect that would render him
or her incapable of self-control or appropriate behavior in positions of
authority and/or responsibility.”31 Third, insurers increasingly tout the
Enforcement Program: The Standards, CALEA, http://www.calea.org/content/lawenforcement-program-standards [perma.cc/JR8C-3JZM] (last visited Nov. 30, 2015)
(requiring compliance with standards); Law Enforcement Program: Process,
CALEA, http://www.calea.org/content/law-enforcement-program-process [perma.cc/
QJ84-ARP5] (last visited Nov. 30, 2015) (requiring continued compliance and
reaccreditation).
29 E.g., Telephone Interview with Risk Pool D (July 6, 2015).
30 See, e.g., DANIEL CRUSE & JESSE RUBIN, DETERMINANTS OF POLICE BEHAVIOR
5 (1973) (reporting, based on field study, that “the amount of stress seems to have a
good deal of effect on the behavior of the officer”); GAIL A. GOOLKASIAN ET AL.,
COPING WITH POLICE STRESS 10 (1986) (reporting findings that stress can
negatively affect work performance, though noting studies’ limitations); Ronald J.
Burke & Aslaug Mikkelsen, Burnout, Job Stress and Attitudes Towards the Use of
Force by Norwegian Police Officers, 28 POLICING INT’L J. POLICE STRATS. & MGMT.
269, 269–72 (2005) (summarizing studies finding that chronic work stress causes
burnout, which is positively and significantly related to the use of force); Nicolien
Kop & Martin C. Euwema, Occupational Stress and the Use of Force by Dutch
Police Officers, 28 CRIM. JUST. & BEHAV. 631 (2001) (similar); Manny Fernandez,
Officer Was Under Stress When He Arrived at Texas Pool Party, Lawyer Says, N.Y.
TIMES, June 11, 2015, at A15 (describing lawyer’s assertion that McKinney, Texas
police officer who was videotaped tackling a black teenager in a bikini outside a
pool party was under stress after responding to two earlier calls involving a suicide
and attempted suicide); Mark Bond, The Impact of Stress and Fatigue on Law
Enforcement Officers and Steps To Control It, INPUBLICSAFETY (Feb. 24, 2014),
http://inpublicsafety.com/2014/02/the-impact-of-stress-and-fatigue-on-lawenforcement-officers-and-steps-to-control-it [perma.cc/L8ZS-VBLN] (asserting that
officer stress can lead to fatigue, which in turn can lead to misconduct and
“inappropriate reactions to a situation”).
31 See, e.g., Trident Risk Points: Operational Policies & Procedures: Law
Enforcement Employment Hiring Policy, Trident Ins. Servs. (Sept. 2012),
https://www.argolimited.com/media/03C10U7X865H/docs/en_US/
74ab995451582b436242abc67f5252a8f9e34329/795717IY6X5I/TridentEmployment-Hiring-Program-2012.pdf
[https://perma.cc/2P9J-PQAM].
The
research on the benefits of psychological screening of officer candidates is mixed.
See, e.g., Michael G. Aamodt, Predicting Law Enforcement Officer Performance with
Personality Inventories, in PERSONALITY ASSESSMENT IN POLICE PSYCHOLOGY 229,
238–40 (Peter A. Weiss ed., 2010) (reporting, based on meta-analysis of 200
studies, that some aspects of certain personality tests do a reasonable job of

10

harm-reducing potential of body-worn cameras. At a recent conference
for the Association of Governmental Risk Pools, for example, one
speaker, addressing a group of municipal insurers, discussed studies
finding that body-worn cameras had markedly reduced both the use of
force and citizen complaints about the use of force. 32 And fourth,
insurers have begun efforts to reduce the risks of harm from police
departments’ use of military equipment. Although I have not seen
insurers purport to forbid agencies from possessing or using military
equipment, “police departments with access to military equipment,” one
insurance newsletter admonishes, must take care to have “appropriate
training and deployment standards in place.”33
Insurers also help police departments train their officers by
supplying materials, funding training programs, or even purchasing
costly training equipment. Especially relevant here, some insurers
provide or subsidize expensive “virtual reality” training on use-of-force
simulators. 34 These “[m]odern computerized use of force simulators
predicting officer performance, including disciplinary problems, but many do not);
Robert E. Cochrane et al., Psychological Testing and the Selection of Police Officers:
A National Survey, 30 CRIM. JUST. & BEHAV. 511, 515 (2003) (collecting sources
that have “demonstrated the usefulness of personality measures in predicting job
performance” of police officers); Candice Bernd, Evaluating Police Psychology: Who
Passes the Test?, TRUTHOUT (Feb. 20, 2015, 9:25 AM), http://www.truth-out.org/
news/item/29191-evaluating-police-psychology-who-passes-the-test
[perma.cc/
YXM7-TFD6] (asserting that, “[w]hen departments forgo psychological screenings,
the result is often violence,” but also highlighting the lack of standardization and
sophistication of screening exams).
32 Ken Wallentine, Vice President & Senior Legal Advisor, Lexipol, Body Worn
Cameras: Risk and Reward (Oct. 6, 2015). Wallentine cited studies from Rialto,
California, and Denver, Colorado. See Barak Ariel et al., The Effect of Police BodyWorn Cameras on Use of Force and Citizens’ Complaints Against the Police: A
Randomized Controlled Trial, 31 J. QUANT. CRIMINOLOGY 509 (2015); Cole Zercoe,
Body Camera Study: Denver Police See Drop in Arrests, UOF Complaints,
POLICEONE (Sept. 4, 2015), http://www.policeone.com/police-products/bodycameras/articles/9485301-Body-camera-study-Denver-police-see-drop-in-arrestsUOF-complaints/ [https://perma.cc/ZD3X-QETH]; see also Munich Re, supra note
22 (“[P]olice departments are encouraged to purchase body cameras, provide
training and set standards for their use.”); The Effect of Body Worn Cameras &
Police Use of Force, Trident Ins. Servs. (Feb. 2015), https://www.argolimited.com/
media/03C10U7X865H/docs/en_US/
d94acf91189467168892daca4ba90de76bc8a263/D6L33YO488Y0/
Your_Risk_Control_Resource_-_Feb15.pdf [https://perma.cc/33HQ-LVYG] (“[B]odyworn cameras appear to be a potentially valuable tool in reducing police use of
force and related incidents.”).
33 Munich Re, supra note 22.
34 See, e.g., Law Enforcement Training Solutions, MEGGITT TRAINING SYS.,
http://meggitttrainingsystems.com/Law-Enforcement [https://perma.cc/2M6B-4F76]
(last visited Aug. 31, 2015); VIRTRA, http://www.virtra.com/ [https://perma.cc/

11

expose police officers to highly realistic and interactive scenarios
whereby they can learn appropriate responses using the full range of
use of force options available.” 35 Rather than simply honing
marksmanship, these tools teach officers to apply their skills
appropriately under “field-compatible” conditions. 36 In empirical
research, such “simulation training has been demonstrated to increase
the number of preventative actions taken by police officers, enhance
shooting accuracy, reduce the number of shots fired to achieve an
objective, increase the degree to which police officers use cover, and
decrease the number of unjustified shootings.”37
Insurers also facilitate training about how not to use force. Another
presentation at the Association of Governmental Risk Pools conference
focused on using mediation and alternative dispute resolution
techniques on the policing beat.38 Many insurers offer courses on verbal
de-escalation techniques, subsidized for policyholders. 39 And in a
newsletter recommending measures to reduce the use of force, one
insurer advises that “a comprehensive training program should be
conducted by outside personnel and focus on defusing incidents.”40
One ubiquitous challenge in policing the police is ensuring
continued compliance with departmental policies. Adopting good
policies and procedures, that is, and training on those policies when
officers join the force, may get a department off to the right start, but
proper maintenance remains essential. 41 Accredited agencies must
3DKA-Q4ZK] (last visited Aug. 31, 2015); MILO RANGE, http://www.milorange.com
[https://perma.cc/UQ35-KHNN] (last visited Aug. 31, 2015).
35 CRAIG BENNELL & NATALIE J. JONES, CAN. POLICE RESEARCH CTR., THE
EFFECTIVENESS OF USE OF FORCE SIMULATION TRAINING 8 (2005),
http://www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn000032136920-eng.pdf
[https://perma.cc/P35H-NGY6].
36 Id.
37 Id. at 6; see also Evelyn-Rose Saus et al., The Effect of Brief Situational
Awareness Training in a Police Shooting Simulator: An Experimental Study, 18
MILITARY PSYCH. S3 (2006).
38 William Micklus, Assoc. Dir., Upper Midwest Cmty. Policing Inst. & Jeffrey
Range, Senior Practitioner, Resologics, Dispute Resolution: Skills Training for Law
Enforcement (Oct. 7, 2015).
39
See,
e.g.,
Training
Calendar,
WASH.
CITIES
INS.
AUTH.,
http://www.wciapool.org/education-training/calendar
[https://perma.cc/6QWJF4NE] (last visited Nov. 30, 2015); Featured Training Notice, CITIES & VILLS. MUT.
INS. CO. (Mar. 26, 2015), http://www.cvmic.com/featured-training-notice/
[https://perma.cc/DQ6E-NEJP].
40 Munich Re, supra note 22.
41 See, e.g., Barbara E. Armacost, Organizational Culture and Police
Misconduct, 72 GEO. WASH. L. REV. 453 (2004) (discussing the separation between
formal departmental policies and informal de facto norms); Samuel Walker, The
New Paradigm of Police Accountability: The U.S. Justice Department “Pattern or

12

demonstrate their continued compliance with accreditation standards,
though the extent of those obligations is unclear.42 Insurers address the
compliance problem by auditing agencies on a regular basis—anywhere
from semi-annually to once every three years, according to the experts I
interviewed.43 Insurers send auditors or retained consultants to visit
insured agencies, sometimes for two- or three-day stints. The auditors
review police reports, internal affairs files, and other liability-related
documentation.44 They may go out in the field with the chief or other
officers.45 Insurers also use data on claims involving the use of force to
identify troubled agencies and problem officers.46 Agencies that make
an insurer’s “watch list” are audited more frequently and intensely.
These auditing practices seem to capture at least the spirit of the “early
warning systems” many policing experts have praised.47
None of what I’ve said so far addresses whether municipalities
listen to their insurers—whether they actually do what insurers say
Practice” Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3, 45 (2003) (disaggregating
“primary compliance,” which “involves the development of a formal policy on a
particular aspect of police operations”; “secondary compliance,” which “involves
evidence that the department has incorporated the policy into training and
supervision”; and “operational compliance,” which “involves evidence that officers
comply with the policy in their routine activities”).
42 See supra note 24.
43 Telephone Interview with Commercial Insurer A (July 20, 2015) (every three
years); Telephone Interview with Risk Pool A (Sept. 2, 2014) (annual); Telephone
Interview with Risk Pool B (Sept. 2, 2014) (semi-annual). Some insurers require
online updates from agencies in between audits or encourage self-audits in
addition. Telephone Interview with Risk Pool B, supra (requires periodic online
updates); Trident Risk Points: Operational Policies & Procedures: Monitoring
Compliance with Law Enforcement Manual, Trident Ins. Servs. (July 2012),
https://www.argolimited.com/media/03C10U7X865H/docs/en_US/
1ff185e22af3a5c38781aa76ee68fcccad4ee5e6/IQJ40V3Z1A83/Trident-LELCompliance_with-Manual-2012.pdf
[https://perma.cc/G5FS-XPR8]
(providing
guidelines for self-audits).
44 Telephone Interview with Risk Pool A, supra note 43; Telephone Interview
with Consultant B (Aug. 27, 2014).
45 Telephone Interview with Risk Pool A, supra note 43; Telephone Interview
with Risk Pool C (June 29, 2015).
46 Telephone Interview with Commercial Insurer A, supra note 43; Telephone
Interview with Commercial Insurer D (Oct. 13, 2015); Telephone Interview with
Risk Pool A, supra note 43; Telephone Interview with Risk Pool D, supra note 29;
Telephone Interview with Consultant A, supra note 26; Telephone Interview with
Consultant C (Aug. 20, 2014).
47 See, e.g., SAMUEL WALKER & CAROL A. ARCHBOLD, THE NEW WORLD OF POLICE
ACCOUNTABILITY 137–77 (2d ed. 2014); Armacost, supra note 41, at 459–60;
SAMUEL WALKER ET AL., RESPONDING TO THE PROBLEM OFFICER: A NATIONAL STUDY
OF EARLY WARNING SYSTEMS 2.4–2.6 (2000), https://www.ncjrs.gov/pdffiles1/nij/
grants/184510.pdf [https://perma.cc/EXE6-X4TN].

13

they ought to do. The answer, generally speaking, seems to be yes.48
Insurers have two principal ways to induce agencies to cooperate with
loss-prevention initiatives: they can raise rates and threaten to
terminate coverage. Insurers charge more to agencies that frequently
tender claims, just like your auto insurer does to you; and they lower
prices for agencies that demonstrate commitment to loss prevention,
such as by obtaining accreditation. Some also adjust rates based on the
existence and quality of various departmental policies. And when rate
adjustments are not enough to make municipalities listen, insurers can
terminate coverage, or credibly threaten to do so. At least partly in
response to these incentives, police agencies adopt or amend
departmental policies on important subjects like the use of force and
firearms. They change the way they train their officers. And they even
fire problem officers, all the way up to the chief.49 In extreme cases,
municipalities have shuttered police departments after their insurers
pulled coverage.50
According to one expert with several decades of experience in the
industry, municipal liability insurers are more heavily focused on
policing now than at any time since the early 1990s. The Rodney King
beating in 1991, this expert said, had “ripple effects” throughout the
industry. Insurers sought to ensure that police agencies had adequate
policies and procedures on the use of force and related subjects. After a
48 For far more detail on this topic, see Rappaport, supra note 2 (manuscript at
50–55, 57–59).
49 See, e.g., Alex Green, Niota Officials Tied to Beating Fired; They Say
Insurance Company Forced the Action, TIMES FREE PRESS (Chattanooga), Aug. 24,
2013 (quoting mayor’s report that city’s coverage would have been dropped if two
officers involved in misconduct had been allowed back on duty); Rutledge Mayor
“Had No Choice” in Firing: Police Chief Refused To Resign; City at Risk of Losing
Insurance, KNOXVILLE NEWS-SENTINEL, Mar. 23, 2010 (reporting mayor’s assertion
he “had no choice” but to fire a police chief accused of misconduct because “the city
was at risk of losing its liability insurance” if the chief remained (internal
quotation marks omitted)); see also Rob Karwath, Calumet City Will Lose Police
Liability Insurance, CHI. TRIBUNE, Mar. 29, 1988 (reporting council member’s
comment that city’s insurance cancellation was “the final argument for the mayor
to pick a new police chief from outside the department” when the interim chief
retired).
50 See, e.g., Schwartz, How Governments Pay, supra note 2, at 1190–91 &
nn.165–71 (collecting four examples of police departments that closed due to
premium increases or termination of coverage); see also George J. Church, Sorry,
Your Policy Is Canceled, TIME, Mar. 24, 1986, at 16, 17, 18 (reporting that police
patrols were suspended in two towns and five counties closed their jails due to lack
of coverage); Tyler Jett, City of Niota, Tenn., Shutting Down. Again., TIMES FREE
PRESS (Chattanooga), June 19, 2013 (reporting that the city’s “police department is
closed” after its insurer pulled coverage); cf. Liability Insurance in Crisis, N.Y.
TIMES, Mar. 4, 1986, at A26 (reporting that “police in West Orange, N.J., had to
stop patrolling in cars they could no longer insure”).

14

while, though, attention waned as other sources of municipal liability
captured insurers’ interest. Now, after the recent wave of highly
publicized officer-involved deaths, insurers find themselves “back in the
soup.” Many insurers, moreover, now recognize that the problems with
police go “beyond policies and procedures”; in order to reduce
misconduct, insurers—and we, as a society—“need to find the root
cause.”51
B.

Private Regulation, Public Regulation

Meanwhile, politicians, too, have considered how to respond to
recent police violence. According to the National Conference of State
Legislatures, in the year 2015 alone, twenty-four state legislatures
considered bills to address investigatory procedures for officer-involved
deaths.52 Measures in thirteen of those states concern the appointment
of special prosecutors. Seven states are evaluating bills about the
collection of data and tracking of statistics in officer-involved deaths.
Other related bills deal with chokeholds, body-worn cameras, the
public’s ability to film law enforcement, and military equipment.
These are positive developments that I do not wish to disparage in
any way. They may be crucial for regulating self-insured departments
that do not take loss prevention seriously, which likely describes many
major metropolitan agencies, including some that are (rightly) under
the microscope today. And they may serve retributive and expressive
purposes necessary to rebuild community trust in the police. Yet, from a
regulatory (i.e., deterrence) perspective, I am skeptical about their
capacity to improve meaningfully upon what insurers are already
doing.53 In fact, insurers’ private regulation may well be more nuanced,
51 Telephone Interview with Commercial Insurer B (July 24, 2015); see also
Telephone Interview with Commercial Broker A (July 22, 2015) (agreeing that
underwriters have become more concerned with police liability since Ferguson);
Roberto Ceniceros, Scandals Can Influence Police Liability Coverage, BUS. INS.
(June 5, 2000), http://www.businessinsurance.com/article/20000604/ISSUE01/
10002637/scandals-can-influence-police-liability-coverage [https://perma.cc/26HYXAF5] (discussing effect of police scandals on rates and coverage nationwide);
Zusha Elinson & Dan Frosch, Cost of Police-Misconduct Cases Soars in Big U.S.
Cities; Data Show Rising Payouts for Police-Misconduct Settlements and Court
Judgments, WALL ST. J., July 15, 2015 (“[I]nsurers and lawyers who defend police
say current scrutiny of law enforcement is broadly affecting the resolution of
lawsuits.”).
52 Law Enforcement Overview, NAT’L CONFERENCE OF STATE LEGISLATURES
(May
29,
2015),
http://www.ncsl.org/research/civil-and-criminal-justice/lawenforcement.aspx [https://perma.cc/EP3X-EKD5].
53 The prospect of criminal punishment may discourage some egregious
misconduct, but I am inclined to agree with Paul Chevigny that “[c]riminal law is
. . . not a system of ‘discipline’ for police misconduct; it defines the outer limits of

15

nimble, and data-driven than what state legislatures can accomplish.54
To the extent that legislative resources, or the political support
necessary to marshal those resources, are scarce, one can make a case
that they should be spent where the private regulatory system is absent
or fails to function, rather than where it seems to function best.
Instead, we might devote public efforts to supporting the regulatory
function insurers provide. Although it wouldn’t come without some cost,
we might consider mandating market insurance across the board, or at
least requiring self-insured municipalities to tender some proof of
meaningful loss-prevention programs. We might also examine whether
there are legal threats that cause insurers to shy away from more
intensive regulation. Although, as I mentioned above, some insurers
have successfully pressured agencies to terminate problem officers,
others I interviewed expressed fear that doing so might subject them to
liability, or at least to legal action, under employment, labor, or contract
law.55 If this fear is well founded, it may be worth creating narrow safe
harbors from liability for insurers to remove a disincentive to socially
beneficial risk regulation.56
II.

HIGH-DOLLAR, LONG-TAIL

An individual who is wrongfully convicted, incarcerated, and later
exonerated and freed can generally sue for damages for the time spent
unjustly imprisoned.57 Successful plaintiffs—by one estimate, twentyeight percent of all those exonerated by DNA who sue58—have in some
cases obtained judgments and settlements upwards of one million
dollars for each year of incarceration.59 Multiply that by the thirteen
what is permissible in society” and is at best a “patchy deterrent.” See PAUL
CHEVIGNY, EDGE OF THE KNIFE 98–101 (1995).
54 See generally Ben-Shahar & Logue, supra note 18.
55 See, e.g., Telephone Interview with Risk Pool D, supra note 29.
56 Cf. Kyle D. Logue, Encouraging Insurers To Regulate: The Role (If Any) for
Tort Law, U.C. IRVINE L. REV. (forthcoming), (Univ. of Mich. Law Sch. Law & Econ.
Research Paper Series, Paper No. 15-001, 2015), http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2547358 [https://perma.cc/3PNX-SXBQ].
57 “Generally” is a meaningful modifier here. See Garrett, supra note 21, at 54.
See generally Michael Avery, Obstacles to Litigating Civil Claims for Wrongful
Conviction: An Overview, 18 B.U. PUB. INT. L.J. 439 (2009).
58 See INNOCENCE PROJECT, MAKING UP FOR LOST TIME: WHAT THE WRONGFULLY
CONVICTED ENDURE AND HOW TO PROVIDE FAIR COMPENSATION 4,
http://www.innocenceproject.org/files/imported/
innocence_project_compensation_report-6.pdf [https://perma.cc/CS7U-MJMW].
59 Garrett, supra note 21, at 43 n.30, 44 n.32 (collecting cases); see also Mark
Iris, Your Tax Dollars at Work! Chicago Police Lawsuit Payments: How Much, and
for What?, 2 VA. J. CRIM. L. 25, 44–45 (2014) (reporting average payouts of $2.4 and
3.2 million per case for Chicago police defendants in wrongful conviction cases

16

years the average exoneree spends in prison,60 and it’s not hard to see
how enormous the liability risk can be. Police misconduct, my focus
here, contributes to many, though not all, of these wrongful
convictions.61 The leading police-related causes of wrongful conviction
include erroneous eyewitness identification, faulty forensic evidence,
false informant testimony, and false or coerced confessions.62 Where
police are implicated, police liability policies generally cover the
claims.63
One might think, therefore, that insurers would be highly attuned
to the risk of wrongful convictions and, as with the use of force, would
closely regulate the agencies they insure in an effort to reduce that risk.
But the long tail of most wrongful conviction claims—the delay between
when the wrongful conduct occurred and when the claim is filed—
makes the claims an insurance nightmare.64 Section A briefly explains
why. Section B discusses potential responses to the difficulties insurers
face.
between 2006 and 2012 in federal and state courts, respectively). Compensation is
all over the map, however, and in some cases is grievously lacking. Compare
Martin G. Hacala, Insights: Wrongful Convictions: What Governmental Risk Pools,
and the Public Entities They Insure, Need To Know, GENESIS, at 5 (May 2012),
https://www.genesisinsurance.com/assets/pdfs/In%20the%20News/Insights201252.pdf [https://perma.cc/P9KB-GNT4] (“[D]amages awarded in wrongful conviction
claims vary significantly. Indeed, it isn’t unheard of for the wrongfully convicted to
recover nothing or a trivial amount.”), with id. at 6 (collecting cases sustaining
damages in the millions).
60 Hacala, supra note 59, at 3. A prisoner may not sue for wrongful conviction
until his conviction is reversed, expunged, or otherwise invalidated. See Heck v.
Humphrey, 512 U.S. 477 (1994).
61 See Garrett, supra note 21, at 42 (“[I]n a surprisingly large number of cases,
wrongful convictions were caused by police misconduct.”). See generally Russell
Covey, Police Misconduct as a Cause of Wrongful Convictions, 90 WASH. U. L. REV.
1133 (2013). According to a 1999 study, the figure is fifty percent. JIM DWYER ET
AL., ACTUAL INNOCENCE 246 (2003). Other common causes of wrongful convictions
include prosecutorial misconduct and deficient defense counsel. See, e.g., JAMES R.
ACKER & ALLISON D. REDLICH, WRONGFUL CONVICTION: LAW, SCIENCE, AND POLICY
(2011); JON B. GOULD ET AL., PREDICTING ERRONEOUS CONVICTIONS: A SOCIAL
SCIENCE APPROACH TO MISCARRIAGES OF JUSTICE (2012).
62 Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 75–91
(2008). See generally BRANDON L. GARRETT, CONVICTING THE INNOCENT (2011).
63 See, e.g., Nat’l Cas. Co., supra note 17, at 5–6 (covering “[f]alse arrest,
detention or imprisonment, or malicious prosecution” and “[v]iolation of civil rights
protected under 42 USC 1981 et sequential or State Law”); Telephone Interview
No. 2 with Risk Pool A (Oct. 5, 2015); Telephone Interview No. 2 with Risk Pool B
(Oct. 5, 2015).
64 See Hacala, supra note 59, at 2 (“[E]xoneration . . . presents a significant
legal and financial challenge for public entities and the [entities] that insure
them.”).

17

A.

The Challenges of Insuring Long-Tail Risks

Insurance theory suggests several reasons that long-tail risks may
strain insurers’ regulatory capabilities. The problem worsens when the
risks are also low in probability but high in consequence, as wrongful
conviction claims tend to be. Sections 1 and 2 address these respective
points. Section 3 reports qualitative empirical findings that tend to
substantiate the challenges theory predicts.
1.

The Basic Theory

A long tail of liability creates at least three distinct problems for
insurers. First, the long tail heightens the degree of correlation (i.e.,
statistical dependence) among the covered risks. All liability insurance,
at least in theory, involves problems of correlated risk “if the rules
under which liability is determined and damages are assessed change
over the life of the insurance contracts.”65 In many insurance contexts,
the law is unlikely to change much, but the delay entailed by long-tail
risks exposes insurers to “judicial, legislative, and economic changes
that commonly influence the ultimate determination of awards.”66 “For
example, unexpected inflation over the runoff period could commonly
increase the ultimate payoff on all outstanding claims beyond the
amount reserved by the insurer. Similarly, a new judicial precedent or
legislation can expand the area of liability, ease the burden of proof for
future plaintiffs, or cause a common upward shift in the value of
awards on all outstanding claims.” 67 Even changes in prevailing
attitudes toward the police and the criminal justice system can have a
substantial (and correlated) effect.68 All this matters because, the more
that risks are correlated, the less insurers can reduce the risks by
aggregating them, which is, after all, one of their defining functions.69
This is why losses from risks that affect many policyholders
simultaneously, like earthquakes, are commonly excluded from
homeowners and renters policies.70

65 Neil A. Doherty & Georges Dionne, Insurance with Undiversifiable Risk:
Contract Structure and Organizational Form of Insurance Firms, 6 J. RISK &
UNCERTAINTY 187, 188 (1993).
66 Id. at 198.
67 Id. For an excellent clarifying discussion that classifies types of “liability
developments risk,” see Tom Baker, Insuring Liability Risks, 29 GENEVA PAPERS ON
RISK & INS. 128 (2004).
68 See Ceniceros, supra note 51.
69 See HOWARD C. KUNREUTHER ET AL., INSURANCE AND BEHAVIORAL ECONOMICS
83–85 (2013); S. HUN SEOG, THE ECONOMICS OF RISK AND INSURANCE 47 (2010).
70 See Ben-Shahar & Logue, supra note 18, at 215.

18

Second, the long tail can create incentives that lead insurers to
regulate too little. “Because of turnover, risk managers may have a
much shorter time horizon than the firm. Current decisionmakers may
reap no reward within the organization for reducing remote risks and
may even be penalized for expending current funds for doing so.”71 As a
result, insurance managers may “externalize to the future,” maximizing
their short-term results at the expense of long-term interests.72 This
“coordination-across-time problem” is another reason that “latent
harms . . . can put insurers in a poor regulatory position.”73
Third, and maybe most important, the long tail creates uncertainty
about the number and magnitude of wrongful conviction claims
insurers should expect. Here I mean to reference the distinction
insurance theorists draw between risk and uncertainty. Risk refers to “a
probability that can be estimated, whether on the basis of observed
frequency or of theory.” 74 Uncertainty refers to “a probability that
cannot be estimated.”75 Risk, put differently, “is something that you can
put a price on,” whereas uncertainty “is risk that is hard to measure.”76
The long delay between the collection of premiums and the processing
of claims complicates measurement of a long-tail risk. “Even if the
frequency and severity of future claims were predictable in current
dollars, economic and legal inflation over such a long period would
make assessment of ultimate financial exposure extremely
speculative.”77

Martin T. Katzman, Pollution Liability Insurance and Catastrophic
Environmental Risk, 55 J. RISK & INS. 75, 83 (1988).
72 KENNETH S. ABRAHAM, DISTRIBUTING RISK 48 (1986); cf. Ben-Shahar &
Logue, supra note 18, at 230 (“Some of the risks that insurers regulate materialize
into harms far into the future, which means that insurers’ efforts to reduce such
risks will largely benefit future insurers.”).
73 Ben-Shahar & Logue, supra note 18, at 230.
74 RICHARD A. POSNER, CATASTROPHE 171–72 (2004).
75 Id. at 172.
76 NATE SILVER, THE SIGNAL AND THE NOISE 29 (2012). The distinction traces
back to FRANK H. KNIGHT, RISK, UNCERTAINTY, AND PROFIT 197–232 (1921); see also
CASS R. SUNSTEIN, WORST-CASE SCENARIOS 147 (2007) (describing uncertainty as a
situation “where outcomes can be identified but no probabilities can be assigned”
and risk as “where outcomes can be identified and probabilities assigned to various
outcomes”); id. at 159–62 (defending the distinction). But see MILTON FRIEDMAN,
PRICE THEORY 282 (1976) (challenging the distinction’s validity).
77 ABRAHAM, supra note 72, at 47.
71

19

2.

The Additional Difficulty
High-Consequence Risks

of

Low-Probability,

It seems, moreover, that the frequency of future wrongful conviction
claims is not particularly amenable to prediction, largely because it is
too low. 78 A wrongful conviction claim is what is called a lowprobability, high-consequence event, a phenomenon that consistently
eludes human predictive capacity: “Much of the time, human beings
ignore low-probability, high-consequence events, giving them far less
attention than they deserve. But when people experience or see a
relevant bad outcome, their concern frequently becomes exaggerated.”79
This may be why one insurer asserts that “[t]here is no way for [an
insurer] to predict the likelihood or volume of exonerations and civil
claims.”80
All this uncertainty gums up the insurance machine, for insurance
deals far better with risk than uncertainty. Insurers faced with
uncertainty cannot accurately price coverage. “[D]espite high levels of
expertise and strong incentives to make logical decisions, [insurance
managers] make errors with respect to situations where there is
78 SAMUEL R. GROSS & MICHAEL SHAFFER, NAT’L REGISTRY OF EXONERATIONS,
EXONERATIONS IN THE UNITED STATES, 1989–2012,
at
3
(2012),
http://www.law.umich.edu/special/exoneration/Documents/
exonerations_us_1989_2012_full_report.pdf
[https://perma.cc/97NR-SVK7
]
(“[E]ven 2,000 exonerations over 23 years is a tiny number in a country with 2.3
million people in prisons and jails.”). The rate of exonerations does seem to be
increasing, however. See, e.g., NAT’L REGISTRY OF EXONERATIONS, THE FIRST 1,600
EXONERATIONS 5 (2015), http://www.law.umich.edu/special/exoneration/Documents/
1600_Exonerations.pdf [https://perma.cc/AT36-S4WG]; Sam R. Gross et al.,
Exonerations in the United States: 1989 through 2003, 95 J. CRIM. L. &
CRIMINOLOGY 523, 527 (2005). Perhaps this is not surprising, given that the errors
that lead to wrongful convictions are typically systemic, not idiosyncratic. See, e.g.,
GARRETT, supra note 62, at 274; Jennifer E. Laurin, Still Convicting the Innocent,
90 TEX. L. REV. 1473, 1475 (2012) (book review).
79 SUNSTEIN, supra note 76, at 21–24. There is a substantial related literature
finding that individuals purchase too little insurance against low-probability
events. See, e.g., Mark J. Browne, Behavioral Bias and the Demand for Bicycle and
Flood Insurance, 50 J. RISK & UNCERTAINTY 141 (2015); Philip T. Ganderton et al.,
Buying Insurance for Disaster-Type Risks: Experimental Evidence, 20 J. RISK &
UNCERTAINTY 271 (2000); Paul Schoemaker & Howard C. Kunreuther, An
Experimental Study of Insurance Decisions, 46 J. RISK & INS. 603 (1979); Paul
Slovic et al., Preference for Insuring Against Probable Small Losses: Insurance
Implications, 44 J. RISK & INS. 237 (1977); see also Gary H. McClelland et al.,
Insurance for Low-Probability Hazards: A Bimodal Response to Unlikely Events, 7
J. RISK & UNCERTAINTY 95 (1993) (finding extreme bimodality in willingness to
pay). But see Susan K. Laury et al., Insurance Decisions for Low-Probability Losses,
39 J. RISK & UNCERTAINTY 17 (2009).
80 Hacala, supra note 59, at 9.

20

uncertainty or ambiguous information regarding the low probability
risks they face. When insurers have limited data and limited past
experience with extreme events, there is a tendency for them to engage
in intuitive thinking when determining what coverage to offer against
specific risks and how much to charge.”81 For this reason, “[i]t would not
be unusual for a governmental risk pool to have little or no remaining
[incurred but not reported] reserves in the accident year in which the
trigger date falls,” i.e., the year in which a wrongful arrest or conviction
occurred.82 “This means a single significant claim could put significant
pressure on the pool’s surplus.”83
Nor can insurers be confident about what loss-prevention measures
they can reasonably insist upon. As Kenneth Abraham explains, “the
threat of uncertain liability can promote optimal safety levels only by
mere chance, because risk-optimizing behavior requires cost-benefit
calculations that are necessarily impossible in the face of great
uncertainty.” 84 And any attempt by insurers to adjust to new
understandings of the scope of liability—through, say, raising
premiums or crafting an exclusion—cannot have impact for years, when
claims stemming from today’s conduct will arise. It can only cut future
losses.85 As for the conduct covered long ago, which may give rise to a

81 Howard C. Kunreuther & Mark V. Pauly, Behavioral Economics and
Insurance: Principles and Solutions, in RESEARCH HANDBOOK ON THE ECONOMICS OF
INSURANCE LAW 15, 21–23 (Daniel Schwarcz & Peter Siegelman eds., 2015); see
KUNREUTHER ET AL., supra note 69, at 7 (“Insurers … misunderstand how to predict
rare events and therefore sometimes make decisions that appear to ignore risks
altogether. Alternatively, they sometimes fixate on the magnitude of recent losses
and claims without weighting these figures by an estimate of the likelihood of
another catastrophe occurring.”); Katzman, supra note 71, at 85. This is not to say
there are no methods to predict extreme events. See, e.g., Robert Lund, Revenge of
the White Swan, 61 AM. STATISTICIAN 189, 190 (2007) (discussing extreme value
theory, “the statistician’s bible for quantifying rare events”).
82 Hacala, supra note 59, at 9.
83 Id.
84 Abraham, supra note 4, at 944; see also ABRAHAM, supra note 72, at 51
(“[T]he capacity of any system of liability to promote optimal deterrence depends on
how predictable liability is.”). Compare Richard Lempert, Low Probability/High
Consequence Events: Dilemmas of Damage Compensation, 58 DEPAUL L. REV. 357,
385 (2009) (listing reasons, including “psychological denial,” that “make it almost
inevitable that insufficient precaution will be taken” against low-probability, highconsequence events), and Katzman, supra note 71, at 83 (“Given a ‘finite reservoir
of concern,’ risk managers may pay little attention to low-probability risks, no
matter how severe the potential consequences.”), with Eric A. Posner, Probability
Errors: Some Positive and Normative Implications for Tort and Contract Law, 11
SUP. CT. ECON. REV. 125, 126 (2004) (showing that a “person who discounts remote
risks might take too much care, rather than too little”).
85 ABRAHAM, supra note 72, at 965.

21

claim tomorrow, insurers cannot escape the familiar truism: “the past is
the past.”86
3.

The Empirics

My own empirical research, conducted for this Article, largely
confirms what theory predicts. Exploiting contacts made while
conducting a larger, related empirical project, I interviewed eight
insurers—including both commercial firms and intergovernmental risk
pools—about how they price and manage the risk of wrongful
convictions.87 For the most part, they don’t. Some had not even given
the issue any thought. 88 The insurers confirmed that wrongful
conviction suits are covered when law enforcement is implicated, absent
some particular exclusion. But none of them attempts to determine the
share of the premium attributable to wrongful conviction coverage. Nor,
for the most part, do they engage in any loss prevention specifically
designed to reduce the incidence of wrongful convictions. These insurers
seemed simply to ignore the risk.89
A few insurers emphasized that, although they take no steps to
address wrongful conviction risks in particular, their general
underwriting and loss-prevention practices should sufficiently control
the exposure. One stressed the importance of accreditation by agencies
that impose continuing education standards and check for wellmaintained policies and procedures.90 Another said his pool educates
the police about their obligation to disclose exculpatory evidence and
audits policyholders’ evidence rooms for conformance with best
practices.91 That pool also scrutinizes the integrity of agency personnel,
86 Telephone Interview with Commercial Insurer C (Oct. 26, 2015). I do not
mean to suggest there is nothing insurers can do to improve their position vis-à-vis
claims arising from actions taken years ago. Some insurers have gone back to shore
up their reserves for past coverage years. Id. But this does not reduce the
likelihood that harm from past actions will manifest.
87 For more on methodology, see supra note 5.
88 See, e.g., Telephone Interview No. 2 with Risk Pool A, supra note 63
(explaining that the pool had never priced the risk or looked at specific lossprevention measures because it had never considered the risk, which it believed
more relevant in big cities and in the South).
89 Id.; Telephone Interview No. 2 with Commercial Insurer B (Oct. 1, 2015)
(speculating that wrongful convictions are not a significant issue for pools his
company reinsures because the pools’ members are “puny munis”). But see
Telephone Interview with Commercial Insurer D, supra note 46 (reinsures small
pools that have encountered wrongful conviction claims).
90 Telephone Interview with Commercial Insurer D, supra note 46.
91 Telephone Interview No. 2 with Risk Pool C (Sept. 28, 2015); see also
Telephone Interview with Risk Pool E (Oct. 7, 2015) (reporting that wrongful
convictions are “just coming onto the radar,” and that an industry conference, last

22

reviewing the veracity of employment applications and performance
during probationary employment periods.92 The same expert added that
underwriters will notice a department that’s generally sloppy, based on
responses to questionnaires about best practices. 93 But, he added,
tellingly, as for how such measures actually affect (and reflect) the risk
of wrongful conviction, “There’s no science behind it.”94
My research therefore suggests that, to the extent insurers attempt
to price the risk of wrongful convictions, their efforts are crude, at best.
This means that, in this context—in contrast to what I said in Part I
about the use of force—insurers may be making matters worse rather
than better. “Failure to risk-rate premiums,” it is well known, can
“create[] moral hazard.”95 Depressed prices, assuming that’s what we
have, weaken incentives for loss prevention and send inaccurate signals
to both insured municipalities and the public about the risk and cost of
wrongful convictions.96
What is more, if experience in analogous domains is any guide,
insurers’ ostrich-like approach to covering wrongful conviction claims
may mask fragility and volatility in this corner of the market, which a
run of wrongful convictions may lay bare. “After a severe loss, insurers
may withdraw from covering this risk because they focus on the losses
from a worst-case scenario without adequately reflecting on the [low]
likelihood of this event occurring in the future.” 97 This is what
happened with coverage against terrorism risks. “[P]rior to 9/11,
insurance losses from terrorism were viewed as so improbable that the
year for the first time, included a session on wrongful convictions, focusing on the
duty to disclose exculpatory evidence).
92 Telephone Interview No. 2 with Risk Pool C, supra note 91; see also
Telephone Interview No. 2 with Risk Pool A, supra note 63 (stressing “integrity
first in personal and professional behavior”).
93 Telephone Interview No. 2 with Risk Pool C, supra note 91.
94 Id. This expert’s admission calls to mind the terrorism context, in which
insurers have been similarly unable to gauge risk levels accurately. See Michelle E.
Boardman, Known Unknowns: The Illusion of Terrorism Insurance, 93 GEO. L.J.
783, 815–20 (2005) (arguing that terrorism risk is incalculable largely because the
data are too scarce and disparate; that insurers are “guessing” on prices, which
vary wildly; and that pricing has “not been very scientific” because “underwriters
are relying on their experience and instincts”).
95 Kunreuther & Pauly, supra note 81, at 24.
96 See Boardman, supra note 94, at 836–42 (discussing the efficiency costs of
inaccurate pricing, which sends inaccurate signals about the risk and cost of harm).
In theory, insurers could be (unwittingly) charging too much, rather than too little,
to cover the risk of wrongful convictions, leading insured municipalities to
overinvest in loss prevention. I think this is unlikely, however, and I heard no hint
of it during any of my conversations with industry experts.
97 Kunreuther & Pauly, supra note 81, at 19; see Cass R. Sunstein, Terrorism
and Probability Neglect, 26 J. RISK & UNCERTAINTY 121 (2003).

23

risk was not explicitly mentioned or priced in any standard policy.”98
But “[f]ollowing the 9/11 attacks, most insurance swung to the other
extreme.”99 The same thing occurred with pollution insurance.100 The
few insurers I spoke to who do have an eye on the issue agreed that
wrongful conviction coverage could meet a similar fate, especially if the
present “soft” market firms up.101
B.

Responding to Insurance Shortfalls

If what I have said is correct, a two-headed reform agenda is in
order. First, we should seek ways to shore up the insurance function,
both to improve insurers’ capacity to regulate the risk of wrongful
convictions and to avert the type of insurance crises we experienced
with terrorism and pollution coverage. If changes are required, better to
implement them in a preventive, orderly fashion than to walk headlong
into a disruptive, destabilizing felt emergency. Second, cognizant that
insurers do not appear to control this risk especially well, we should
bolster other forms of regulation that do not rely on the threat of civil
liability to create the incentives necessary for harm reduction.
1.

Improving Insurance

This section considers two commonplace insurance devices that
might allow insurers to gauge the risk of wrongful convictions more
accurately: feature rating (rather than experience rating) and claimsmade coverage (rather than occurrence-based coverage).

98 KUNREUTHER ET AL., supra note 69, at 221; accord Boardman, supra note 94,
at 786–87.
99 KUNREUTHER ET AL., supra note 69, at 221.
100 See Benjamin J. Richardson, Mandating Environmental Liability Insurance,
12 DUKE ENVT’L L. & POL’Y F. 293 (2002).
101 Telephone Interview with Commercial Insurer C, supra note 86; Telephone
Interview with Commercial Insurer D, supra note 46. Liability insurance tends to
follow an “underwriting cycle” in which “premiums and restrictions on coverage . . .
rise and fall as insurers tighten their standards in response to the loss of capital”—
called a “hard market”—“or, alternately, loosen their standards in order to
maintain or grow market share when new capital enters the market”—a “soft
market.” See TOM BAKER & SEAN J. GRIFFITH, ENSURING CORPORATE MISCONDUCT:
HOW LIABILITY INSURANCE UNDERMINES SHAREHOLDER LITIGATION 55 (2010).

24

a.

Experience Rating vs. Feature Rating

Insurers use two principal techniques to tailor rates for their
policyholders: experience rating and feature rating.102 Experience rating
uses the insured’s history of past losses—its “loss experience”—during
some designated period (say, five years) to calculate current premiums.
Feature rating instead relies on the insured’s individual risk
characteristics. (Experience rating might raise Richard’s auto premium
because Richard had an accident last year; feature rating because
Richard is only nineteen years old and young drivers are accidentprone.) Because wrongful convictions are a low-probability, long-tail
risk, insurers lack the experience base necessary to do experience
rating well.
As far as I can tell, however, insurers are not feature rating based
on the risk characteristics known to affect the likelihood of wrongful
convictions. For example, insurers could—but, to my knowledge, do
not—raise rates for agencies that fail to videotape interrogations (to
help avoid false or coerced confessions) or use double-blind lineup
procedures (to reduce the danger of erroneous eyewitness
identifications).103 To facilitate reform, insurance regulators could work
with state attorneys general or other law enforcement experts to devise
a list of risk-related features that underwriters should (or must)
consider when setting rates. Insurers might combine a feature-rating
approach with “sub-limits” capping the amount of coverage available for
wrongful conviction claims, which alerts the insured municipalities to
the gravity of the perceived risk.
b.

Occurrence vs. Claims-Made Coverage

Even feature-rated premiums, however, may not be accurate enough
to encourage optimal loss prevention and ensure insurer stability.
There is an additional, somewhat more drastic step insurers might
take. I have assumed, so far, that police liability coverage is offered, as
has been the general (though not exclusive) tradition, on an occurrence
basis. “Occurrence policies cover liability for activities that take place
during the policy period, regardless of when a suit that seeks to impose
liability for these activities is filed.”104 Policyholders tend to like this
feature, but it makes pricing very difficult, especially for long-tail risks.
Pricing occurrence coverage requires insurers “to charge in the present
102

For descriptions of the two approaches, see ABRAHAM, supra note 72, at 71–

74.
See Garrett, supra note 21, at 103–04 (discussing these and other reforms to
reduce the risk of wrongful convictions).
104 ABRAHAM, supra note 72, at 49–50.
103

25

for all the eventual results of present activities.” 105 The principal
alternative form of liability coverage is the claims-made policy.
“[C]laims-made policies insure against liability for claims that are filed
during the policy year” that arise out of activities occurring after a
specified retroactive date. 106 That is, a “claims-made policy provides
coverage during the policy year for injuries caused by activities
occurring in the past.”107 And “[b]ecause the insurer need not predict
long-term claim exposure, claims-made policies can be priced more
confidently than occurrence policies.” 108 In fact, claims-made policies
were first introduced when “concern over the difficulty of predicting the
scope of long-tail liabilities became pronounced.”109
More accurate pricing, while generally beneficial, may not translate
straightforwardly into better loss prevention. “Although the shift from
occurrence to claims-made coverage solves many of the insurance
industry’s prediction problems,” Kenneth Abraham explains, “it does
little to remove the obstacles to thorough cost internalization. If
anything, such a shift may be a step in the opposite direction.”110 This is
because a “claims-made premium increase reflects only the additional
costs anticipated this year as a result of past activities,” which “can
send incomplete and imprecise messages to insureds.” 111 Abraham
continues: “In contrast, an increase in occurrence premiums is a
message about the future costs of this year’s activities.”112 The fear is
that “a claims-made pricing system may induce an enterprise to
underestimate the cost of prospective liability as compared to the cost of
an investment in loss prevention that would avoid some of that
liability.”113

Id. at 50.
Id.
107 Id.
108 Id.
109 KENNETH S. ABRAHAM, INSURANCE LAW AND REGULATION 622 (5th ed. 2010);
see also Jaap Spier, Long Tail (Liability) Risks and Claims Made Policies, 23
GENEVA PAPERS ON RISK & INS. 152 (1998). More generally, claims-made policies
work well to reduce the problem of insuring correlated risk. See Doherty & Dionne,
supra note 65, at 198; see also Neil A. Doherty, The Design of Insurance Contracts
When Liability Rules Are Unstable, 58 J. RISK & INS. 227 (1991). Municipal risk
pools, which are essentially small mutual insurers, may have less need to use a
claims-made policy, as the mutual form may accomplish similar objectives. See
Doherty & Dionne, supra note 65, at 196–97.
110 ABRAHAM, supra note 72, at 50.
111 Id.; see also Katzman, supra note 71, at 88 (asserting that, under claimsmade policies, “current premiums are not easily affected by current risk
management practices”).
112 ABRAHAM, supra note 72, at 50.
113 Id.
105
106

26

That is not to say, of course, that a claims-made insured is without
any incentive for careful behavior—it is “always at risk that its
coverage will not be renewed because of unsafe operations, and that it
will be exposed thereafter to claims that have not yet been reported.”114
In any event, and despite the drawback just mentioned, the gains from
more accurate pricing may well justify a shift to claims-made coverage.
In particular, insurers could segregate coverage for wrongful conviction
claims and write that portion alone on a claims-made basis, continuing
to write the rest of the police liability policy on an occurrence basis.115
2.

Complementing Insurance

Even were insurers to adopt all of my proposals, I would remain
skeptical about just how well they could regulate the risk of wrongful
convictions. There is a need here for a more active government
presence—a vessel into which we might funnel some of the reform
efforts presently focused on the use of force. 116 Fortunately, as I
mentioned in passing above, we know a fair amount about a set of
policies with promise to reduce the risk of wrongful convictions. 117
There are numerous ways to encourage adoption of these policies. Oldfashioned political lobbying has more promise than one might think;
states have gradually adopted meaningful reforms concerning
interrogation, eyewitness lineups, and other critical stages of the
criminal process. 118 Reorienting some of our constitutional criminal
procedure doctrine from individual to systemic issues—that is, making
a criminal defendant’s constitutional claim turn in part on the systemic
measures the prosecuting jurisdiction has taken to safeguard the
underlying constitutional principle—is one way to support and foster
these political reforms.119 Another might be Congress’ spending power.
Id. at 51.
See Telephone Interview with Commercial Insurer D, supra note 46; cf.
Katzman, supra note 71, at 87 (describing how environmental impairment liability
is excluded from occurrence-based general liability policies and written separately
on a claims-made basis).
116 See Lempert, supra note 84 at 385 (arguing that government planning and
regulation is necessary to control low-probability, high-consequence events).
117 See, e.g., GOULD ET AL., supra note 61, at 97–101; INT’L ASS’N OF CHIEFS OF
POLICE & OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T OF JUSTICE, NATIONAL SUMMIT
ON WRONGFUL CONVICTIONS: BUILDING A SYSTEMIC APPROACH TO PREVENT
WRONGFUL CONVICTIONS (2013), http://www.innocenceproject.org/files/imported/
wrongful_convictions_summit_report_2013.pdf
[https://perma.cc/Y3NW-HTTF];
Garrett, supra note 21, at 103–06 (detailing reforms and describing them as
“inexpensive and easy to adopt”).
118 See Rappaport, supra note 8, at 252–54.
119 See generally id.
114
115

27

Congress could reduce federal law enforcement funding to jurisdictions
that have not yet implemented best practices to prevent wrongful
convictions;120 in theory, the moneys not disbursed could even pour into
a fund to help compensate exonerees. Nor should we stop with the basic
set of established reform proposals. Why not take a page from the
financial-crisis literature and try to develop an early warning system to
anticipate wrongful convictions and mitigate the damage from them?121
If insurers substantially improve their ability to reduce the risk of
wrongful convictions, these public regulatory mechanisms may recede
in importance. But until that time, the case for intensified government
intervention is strong.
III.

LOW-DOLLAR, SHORT-TAIL

Low-dollar, short-tail claims are the bread and butter of
constitutional criminal procedure litigation. That is, many
constitutional violations in the criminal process cause some immediate
harm, but not one the legal system deems compensable to any
significant extent. 122 This is because deprivation of a constitutional
right, in itself, is non-compensable; only nominal damages are due.123
To exceed nominal damages, a plaintiff must demonstrate some
separate, compensable harm, like a physical injury or loss of wages.124
Many plaintiffs cannot make this showing.
Cf. Kami Chavis Simmons, Cooperative Federalism and Police Reform:
Using Congressional Spending Power To Promote Police Accountability, 62 ALA. L.
REV. 351 (2011).
121 See, e.g., Matthieu Bussière & Marcel Fratzscher, Low Probability, High
Impact: Policy Making and Extreme Events, 30 J. POL’Y MODELING 111 (2008). To
some extent, we see this occasionally already. See, e.g., Jess Bidgood,
Massachusetts Justices Clear Way for New Trials in Cases Chemist May Have
Tainted, N.Y. TIMES, May 19, 2015, at A11 (describing decision to allow thousands
of defendants whose cases may have been tainted by a state chemist’s work to seek
new trials); Steve Mills & Ken Armstrong, Hard Calls Face Ryan in Death Row
Review, CHI. TRIB., Mar. 5, 2002 (describing the Illinois governor’s pledge to review
the cases of all 159 death row inmates due partly to concerns about wrongful
convictions stemming from systemic flaws).
122 See RONALD JAY ALLEN ET AL., CRIMINAL PROCEDURE: INVESTIGATION AND
RIGHT TO COUNSEL 337 (3d ed. 2016) (“The typical Fourth Amendment case—say, a
gratuitous frisk or car search—does not involve the kind of physical injury or
property damage that would translate into significant money damages . . . .”).
123 See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986)
(holding that “damages based on the abstract ‘value’ or ‘importance’ of
constitutional rights are not a permissible element of compensatory damages”).
124 Carey v. Piphus, 435 U.S. 247, 248, 263–67 (1978) (holding that, “in the
absence of proof of actual injury. . . only nominal damages” are due for a procedural
due process violation).
120

28

Consider some familiar examples. Even a brief investigatory stop,
especially if accompanied by a frisk, may intrude significantly on
privacy and dignity interests we say the Fourth Amendment protects.125
Where the stop is not justified by reasonable suspicion, the Constitution
forbids it.126 Yet no damages are due for an unjustified stop, without
more. Similarly, a “bare” Miranda violation—the failure to give
Miranda warnings before conducting a custodial interrogation—is not
compensable at all.127
What this means is that insurers have little reason to fear paying
out on claims stemming from such mine-run violations, and thus little
incentive to expend resources to prevent them. Three additional facts
bolster this conclusion. First, although attorney fees provisions of the
federal civil rights statutes were enacted partly to overcome plaintiffs’
financial disincentives to suit,128 fees are likely to be paltry—or even
waived in settlement—when a plaintiff recovers only nominal
damages. 129 Second, although, in theory, defense costs in suits for
125 See, e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613–14 (1989)
(stating that “the [Fourth] Amendment guarantees the privacy, dignity, and
security of persons against certain arbitrary and invasive acts by officers of the
Government or those acting at their direction”). Ironically, in the very decision that
condoned the stop-and-frisk maneuver, laying the groundwork for controversial
“order maintenance” policing programs, the Supreme Court articulated quite
sharply the personal harms a frisk inflicts:
[I]t is nothing less than sheer torture of the English language to suggest
that a careful exploration of the outer surfaces of a person’s clothing all
over his or her body in an attempt to find weapons is not a “search.”
Moreover, it is simply fantastic to urge that such a procedure performed in
public by a policeman while the citizen stands helpless, perhaps facing a
wall with his hands raised, is a “petty indignity.” It is a serious intrusion
upon the sanctity of the person, which may inflict great indignity and
arouse strong resentment, and it is not to be undertaken lightly.
Terry v. Ohio, 392 U.S. 1, 16–17 (1968) (footnote omitted).
126 Terry, 392 U.S. at 20–22.
127 Technically, a Miranda violation is not itself a constitutional violation. See
Chavez v. Martinez, 538 U.S. 760 (2003). But even if it were, it is hard to see why
damages would be more than nominal.
128 See Robert V. Percival & Geoffrey P. Miller, The Role of Attorney Fee
Shifting in Public Interest Litigation, 47 LAW & CONTEMP. PROBS. 233, 239–41
(1984).
129 See Farrar v. Hobby, 506 U.S. 103, 114–15 (1992) (holding that, when
recovery of damages is the purpose of a suit, the fee award should depend on “the
amount of damages awarded as compared to the amount sought,” and that
plaintiffs who seek compensatory damages but receive only nominal damages
“often” should receive “no attorney’s fees at all” (quoting City of Riverside v. Rivera,
477 U.S. 561, 585 (Powell, J., concurring in judgment))). Notwithstanding Farrar,
“there are circumstances where a judgment of nominal damages will support an
award of attorneys’ fees, based on the vindication of important constitutional
rights.” MICHAEL AVERY ET AL., POLICE MISCONDUCT: LAW AND LITIGATION 974 (3d

29

injunctive relief could be substantial enough to justify insurer lossprevention efforts, standing doctrine makes it extremely difficult for
plaintiffs to seek injunctions.130 Moreover, many police liability policies
cover only damages claims.131 And third, some—maybe many—policies
contain a deductible or self-insured retention that effectively allocates
to the municipality losses for claims below a specified attachment
point. 132 An occasional Terry claim resulting in a modest damages
payment may never even touch the insurer.
Insurers do not disregard these claims entirely. Some insurers—
especially municipal risk pools, which are owned by their policy-holding
member municipalities—see one of their roles as promoting police
professionalism. Reducing the number of Terry or Miranda violations
could support this goal. 133 And where a plaintiff is able to make a
lawsuit financially viable—such as by obtaining pro bono
representation by an interested organization—defense costs might be
substantial even where damages are not. Perhaps most important,
“everyday” violations, even if not themselves compensable, may ground
claims of more egregious conduct that are compensable. Although a
brief (unlawful) Terry stop, for example, likely causes no compensable
harm, a prolonged one, or one accompanied by abusive language or
conduct, might. Insurers thus have some incentive to make sure their
agencies are generally following Terry. Similarly, although a bare
Miranda violation is non-compensable, it may help support a
compensable claim of outrageous conduct that violates due process.134
Still, at the end of the day, insurers will be hard-pressed to regulate
closely an aspect of police conduct that does not, itself, threaten
substantial civil liability. This describes a good deal of plain vanilla
unlawful behavior. And if insurers do not regulate, someone else has to.
For the most part, we rely on criminal defendants to act as private
ed. 2015). Even so, defendants are permitted to condition settlement of civil rights
cases on the waiver or reduction of attorney fees, which, by some accounts, has
“destroyed section 1983 as a remedy for civil rights plaintiffs with only modest
damages.” Reingold, supra note 3, at 4.
130 See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Rizzo v. Goode,
423 U.S. 362 (1976); O’Shea v. Littleton, 414 U.S. 488 (1974).
131 See, e.g., Nat’l Cas. Co., supra note 17, at 2 (excluding from coverage
“‘claim(s),’ demands, or actions seeking relief or redress in any form other than
monetary damages”).
132 See, e.g., Telephone Interview with Commercial Insurer A, supra note 43
(stressing importance of deductibles and self-insured retentions for effective risk
management).
133 See, e.g., IND. MUN. INS. PROGRAM, supra note 26 (advertising police training
videos covering Terry and Miranda).
134 See, e.g., Chavez v. Martinez, 538 U.S. 760, 798–99 (2003) (Kennedy, J.,
concurring in part and dissenting in part).

30

attorneys general by raising the claims in a defensive posture, in
motions to suppress evidence. 135 According to one study, ninety-five
percent of Terry claims are litigated in this fashion.136 We supplement
this with a tiny bit of injunctive litigation137 and a handful of “pattern
or practice” suits by the U.S. Department of Justice under 42 U.S.C.
§ 14141.138 These are useful tools but they are probably insufficient, as
they seem to leave us with underdeterrence, judging by the number of
legal violations we presently experience.139
As I have argued elsewhere, and alluded to above, in my view the
biggest advance that can be made here, within the limits of practicality,
is to reorient some of our constitutional doctrine to focus defendants’
claims on systemic rather than (or in addition to) individual issues.140
The courts in this model would not be first-order regulators, announcing
conduct rules for cops on the street to follow, but second-order
regulators, articulating constitutional principles for political
policymakers to operationalize as they craft the conduct rules that
govern the police. Suppression hearings would then focus not only on
the isolated conduct of the individual officers alleged to have acted
illegally, but also on the steps that policymakers took—both before and
after the challenged conduct—to channel discretion and encourage law
compliance. The basic theory is to address the systemic
underdeterrence of police wrongdoing by having the courts pressure
political actors to prevent and punish misconduct rather than try to
catch it all themselves. I would not expect this systemic turn to
eradicate the targeted misconduct, but I do think it could improve upon
the status quo.
IV.

LOW-DOLLAR, LONG-TAIL

As a doctrinal matter, the Constitution forbids racial profiling—
targeting an individual for suspicion of crime because of his race.141
See generally Meltzer, supra note 14.
Leong, supra note 13, at 425.
137 See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).
138 For a proposal on how to extract the greatest returns from the limited
resources available for § 14141 litigation, see Rachel A. Harmon, Promoting Civil
Rights Through Proactive Policing Reform, 62 STAN. L. REV. 1 (2009).
139 See, e.g., Floyd, 959 F. Supp. 2d at 559–60 (finding that, during an eightyear period in New York City, “at least 200,000 stops were made without
reasonable suspicion,” and “[t]he actual number of stops lacking reasonable
suspicion was likely far higher”).
140 See generally Rappaport, supra note 8.
141 See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (stating that “the
Constitution prohibits selective enforcement of the law based on considerations
such as race”).
135
136

31

Payouts on profiling claims, however, while more than nominal, are
typically insubstantial. In one recent case, for example, a Kashmiri man
stopped at subway checkpoints twenty-one times by the New York City
police settled for $10,001,142 a fraction of the deductible many insured
municipalities carry.143 Other, similar examples are not hard to find.144
Although the media occasionally report high-dollar judgments and
settlements in racial profiling cases, those cases always involve, as far
as I can tell, some separate compensable harm from police violence or
other aggravating conduct.145 As a result, despite substantial evidence
of discrimination on the roadways and elsewhere,146 insurers have little
incentive to expend resources combatting “mere” racial profiling.147
As before, this is not to say that insurers pay no attention to racial
profiling. Discrimination can factor into broader, more costly
occurrences like the racially motivated use of force. In an effort to
manage this risk, some insurers have begun to consider the racial and
ethnic diversity of the police force at underwriting.148 Others encourage

Stipulation and Order of Settlement and Discontinuance at 2, Sultan v.
Kelly, No. 09-CV-00698(RJD)(RER) (E.D.N.Y. June 30, 2009).
143 Telephone Interview with Commercial Insurer D, supra note 46 (asserting
that $100,000 is a common self-insured retention among his company’s
policyholders).
144 See, e.g., Settlement Agreement at 1–2, Md. State Conf. of NAACP Branches
v. Md. State Police, No. FPS-98-1098 (D. Md. Apr. 3, 2008) (agreeing to settle the
claims of six plaintiffs for $300,000 total); Settlement Agreement at 7, Wilkins v.
Md. State Police, No. MJG-93-468 (D. Md. Jan. 5, 1995) (settling the claims of four
plaintiffs for $12,500 per plaintiff); ACLU, ACLU of NJ Wins $775,000 for Victims
of Racial Profiling by State Troopers (Jan. 13, 2003), https://www.aclu.org/news/
aclu-nj-wins-775000-victims-racial-profiling-state-troopers [https://perma.cc/3ZDZURSF] (awarding majority of plaintiffs around $31,000 each).
145 See, e.g., Gousse v. City of Los Angeles, No. B174896, 2007 Cal. App. Unpub.
LEXIS 2882 (Cal. Ct. App. Apr. 10, 2007) (affirming trial court’s decision to grant a
new trial on damages after a jury awarded $33,000,000 to a urological surgeon who
claimed lost earning capacity, among other damages); ACLU, supra note 144
(reporting having settled claims of two plaintiffs who were beaten and held at
gunpoint for $200,000 each).
146 See, e.g., THE LEADERSHIP CONFERENCE, RESTORING A NATIONAL CONSENSUS:
THE NEED TO END RACIAL PROFILING IN AMERICA
(Mar.
2011),
http://www.civilrights.org/publications/reports/racial-profiling2011/
racial_profiling2011.pdf [https://perma.cc/4EUN-JNWN] (collecting evidence); Ian
Ayres, Racial Profiling in L.A.: The Numbers Don’t Lie, L.A. TIMES, Oct. 23, 2008.
147 Recall that most policies do not cover defense against suits for declaratory
and injunctive relief. See supra note 131.
148 Susan Kostro, Police Excessive Force Raises Liability Risk Scrutiny,
IRONSHORE (Oct. 1, 2015), http://www.ironshore.com/blog/police-excessive-forceraises-liability-risk-scrutiny [https://perma.cc/RFP7-4PUG].
142

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departments to train officers on confronting implicit racial bias.149 Still,
racial profiling does not make the risk manager’s top-twelve list of “high
risk/critical tasks.”150
One commonsense way to focus additional attention on racial
profiling would be to lobby for loftier damages. Higher payouts would
better reflect the dignitary harms racial profiling inflicts and create
stronger financial incentives for municipalities—and their insurers—to
beef up efforts to prevent profiling. This strategy would likely improve
upon the status quo, yet substantial impediments to effective
regulation-by-insurance would remain. One such impediment is that
racial profiling claims frequently have longer tails than one might
expect.
To be sure, an individual who is profiled by the police might
personally suspect (or even know) as much immediately. (The same is
true, of course, of a wrongfully convicted defendant who knows he is
innocent.) But from a risk management perspective, the more
important question is when the individual can prove that he has been
profiled, i.e., when he is likely to sue. And it turns out that racial
profiling claims frequently lie dormant for years. Why? In all but the
rarest cases that involve direct evidence of discriminatory intent,151 a
colorable racial profiling claim must, to trigger Fourteenth Amendment
protections, marshal statistical evidence from a broad sample of other
incidents.152 This can make it impossible to prove that racial profiling is
happening right when it first occurs—only situating the challenged
Telephone Interview with Risk Pool D, supra note 29; Telephone Interview
with Risk Pool E, supra note 91.
150 GALLAGHER, supra note 19, at 52; see also GIROD, supra note 19, at 163
(declining to list racial profiling among fourteen “most common [types of]
‘actionable conduct’ involving civil rights liability” for police).
151 See, e.g., Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1168
(10th Cir. 2003).
152 See, e.g., id. (“In general, the absence of an overtly discriminatory policy or
of direct evidence of police motivation results in most claims being based on
statistical comparisons between the number of black or other minority Americans
stopped or arrested and their percentage in some measure of the relevant
population.”); David Rudovsky, Litigating Civil Rights Cases To Reform Racially
Biased Criminal Justice Practices, 39 COLUM. HUM. RTS. L. REV. 97, 109–12 (2007)
(“[W]here discrimination is sufficiently ‘clandestine and covert,’ statistical evidence
of a discriminatory pattern is the ‘only available avenue of proof.’” (quoting Int’l Bd.
of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977))); Brian L. Withrow &
Jeffrey Doug Dailey, Racial Profiling Litigation: Current Status and Emerging
Controversies, 28 J. CONTEMP. CRIM. JUST. 122, 130 (2012). Fourth Amendment
doctrine regards discriminatory intent as irrelevant; as long as the police have
sufficient cause to, say, pull over a vehicle, it matters not whether the driver’s race
supplies their true motive for the stop. Whren v. United States, 517 U.S. 806, 813
(1996).
149

33

conduct within the context of future (or future-disclosed) police
activities will reveal its discriminatory nature. To reflect this reality, at
least some courts have applied the “discovery rule” and held that a
racial profiling cause of action does not accrue until the injured party
discovers, or reasonably should have discovered, the basis for an
actionable claim. The Third Circuit, for example, delayed accrual in one
case for eleven years, until the State of New Jersey released documents
revealing a statewide practice of racially selective law enforcement,
“information vital to [the plaintiff’s] selective-enforcement claim.”153
More generally, there is an incentive for racial profiling claimants to
delay pursuing their claims; many cases will gain strength as time
passes and more data roll in. The incentive may well be the opposite in
the use-of-force context: sue quickly while witnesses’ memories are
fresh. In addition, both plaintiffs and courts routinely rely on data from
outside the limitations period to inform the legality of more recent
activity, which means that expiration of the statute of limitations does
not signal the same degree of repose for insurers that it might in, say,
the use-of-force setting. 154 To put the point slightly differently, the
factual and evidentiary basis for a racial profiling lawsuit may ripen for
years without alerting insurers to the need to collect premiums and
build reserves to cover any eventual payout.
To give one example, the plaintiffs in a major racial profiling lawsuit
in California—a class of individuals whom the police had stopped
beginning in 1998—alleged that the California Highway Patrol (CHP)
had “long relied upon race and ethnicity in conducting stops, detentions,
interrogations and searches of motorists” as part of an “unabated,
continuing pattern and practice of discrimination” that had intensified
in recent years.155 The challenged conduct dated back to at least the late
1980s, when the CHP became involved in “Operation Pipeline,” a
federally funded drug interdiction program the plaintiffs described as a
“roving program of discrimination.” 156 Yet the plaintiffs did not sue
until 1999, the year California’s Joint Legislative Task Force on
Government Oversight released a report, based on a review of
Dique v. N.J. State Police, 603 F.3d 181, 184 (3d Cir. 2010).
See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 558–60, 572 n.100,
590 (S.D.N.Y. 2013) (relying, in a lawsuit filed in 2008, on data and expert analysis
reaching to January 2004, a state attorney general report from 1999, and evidence
of “more than a decade” of institutional indifference); Floyd v. City of New York,
283 F.R.D. 153, 160 (S.D.N.Y. 2012) (certifying a class covering individuals stopped
by police beginning in 2005); Complaint at 9–13, Floyd v. City of New York, No. 08
Civ. 1034(SAS) (S.D.N.Y. Jan. 31, 2008) (connecting present-day allegations to
history of police activity dating to the 1970s).
155 First Amended Complaint at 6, 16, Rodriguez v. Cal. Hwy. Patrol, No. 5:99CV-20895-JF (N.D. Cal. Nov. 30, 1999).
156 Id. at 6–7.
153
154

34

thousands of CHP records, finding that Operation Pipeline
discriminated against motorists of color.157
Two implications follow. First, even if racial profiling triggered
heavier damages, insurers would face substantial challenges in pricing
and managing the risk. This is true for the reasons discussed in Part
II—namely, that the long tail of liability heightens the degree of
correlation among the covered risks, tempts insurers to externalize to
the future, and creates uncertainty about the number and magnitude of
claims insurers should anticipate.158 Consider, for example, the effects
of a statute easing the burden of proof for racial profiling plaintiffs,
which would buoy a large number of outstanding claims
simultaneously, upending insurers’ financial planning.
Second, criminal defendants are poorly situated to serve as private
attorneys general, at least relative to how well they can play that role
for claims with shorter tails. In many cases, present proof of
discriminatory intent—through statistical analysis of prior incidents—
will simply be unavailable when the defendant is charged, even though
proof may bubble up in patterns of future police activity. But even
where present proof is theoretically available—and where defense
resources exist to analyze and present that proof—pretrial detention
creates strong incentives for defendants to resolve their cases as quickly
as possible, sooner than will allow for the development of a relatively
complex racial profiling claim. 159 Stingy discovery standards further
hamstring criminal defendants’ efforts to prove profiling.160 Indeed, I
could find no criminal case in which a defendant has prevailed on a
racial profiling defense under federal law.161
Id. at 7.
See supra pp. __.
159 See, e.g., Nick Pinto, The Bail Trap, N.Y. TIMES MAG., Aug. 13, 2015, at
MM38.
160 See Armstrong v. United States, 517 U.S. 456 (1996) (denying defendants
discovery on selective prosecution claims unless they can show that the government
declined to prosecute similarly situated suspects of other races). Courts are divided
on whether (and how) the Armstrong standard applies in the selective enforcement
(i.e., policing) context. See JODY FEDER, CONG. RESEARCH SERV., RL31130, RACIAL
PROFILING: LEGAL AND CONSTITUTIONAL ISSUES 6–9 (2012).
161 My research uncovered no complete victories by criminal defendants based
on racial profiling under either state or federal law. New Jersey courts have
granted motions to suppress evidence based on state-law equal protection
violations, though even these partial victories are rare. See, e.g., State v. Segars,
799 A.2d 541, 552 (N.J. 2002) (“This is a very unusual case. Without Officer
Williams’s repudiated testimony, the evidence produced by Segars that Officer
Williams saw him prior to the MDT check would have been completely inadequate
to support an inference of discriminatory enforcement.”); State v. Soto, 734 A.2d
350 (N.J. Super. Ct. 1996); see also David A. Harris, Racial Profiling Redux, 22 ST.
LOUIS U. PUB. L. REV. 73, 77–79 (2003) (characterizing as unsurprising the “lack of
157
158

35

It appears, therefore, that neither civil plaintiffs—with liability
filtered through insurance—nor criminal defendants, acting as private
attorneys general, show much promise in the fight against racial
profiling. A relatively small amount of injunctive-relief litigation has
helped call attention to the problem, and may reduce the frequency of
profiling in the targeted jurisdictions, but it seems unlikely to be a
general solution.162 In light of these realities, it would be wise to shift
our attention from the judicial forum to political ones. This is not a
novel suggestion; the work is already underway. According to one
report, thirty states have enacted some form of ban on racial profiling,
and seventeen also forbid pretextual traffic stops. Eighteen require
mandatory data collection for all stops and searches.163 The most recent
efforts pin hope on more cutting-edge reforms like implicit bias training
(“debiasing”) and body-worn cameras. 164 Increasing the diversity of
litigation success in suits against racial profiling,” and crediting “unusual
circumstances” for successes in Soto and a famous civil case); Lewis R. Katz,
“Lonesome Road”: Driving Without the Fourth Amendment, 36 SEATTLE U.L. REV.
1413, 1427 (2013) (“Only New Jersey courts have granted motions to suppress in
Fourteenth Amendment equal protection claims, based on their interpretation of
the New Jersey Constitution.” (footnote omitted)).
162 See, e.g., Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) (upholding part
of a permanent injunction); Floyd v. City of New York, 959 F. Supp. 2d 668
(S.D.N.Y. 2013) (entering a permanent injunction); see also Arnold v. Ariz. Dep’t of
Pub. Safety, No. CV–01–1463–PHX–LOA, U.S. Dist. LEXIS 53315 (D. Ariz. July
31, 2006) (affirming a settlement agreement containing extensive prospective
relief, including modifications to police procedures and training requirements); In
re Cincinnati Policing, 209 F.R.D. 395 (S.D. Ohio 2002) (similar). On the general
difficulty of litigating racial profiling claims effectively, see DAVID COLE, NO EQUAL
JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 40 (1999);
Albert W. Alschuler, Racial Profiling and the Constitution, 2002 U. CHI. LEGAL F.
163, 245, 248; Harris, supra note 161, at 78; Kevin R. Johnson, Racial Profiling in
America, 98 GEO. L.J. 1005, 1069, 1069 n.394 (2011); Kami Chavis Simmons,
Beginning To End Racial Profiling: Definitive Solutions to an Elusive Problem, 18
WASH. & LEE J. CIVIL RTS. & SOC. JUST. 25, 37 (2011).
163 NAACP, BORN SUSPECT: STOP-AND-FRISK ABUSES AND THE CONTINUED FIGHT
TO END RACIAL PROFILING IN AMERICA 19 (Sept. 2014), http://action.naacp.org/page/
-/Criminal%20Justice/Born_Suspect_Report_final_web.pdf [https://perma.cc/T54TKVU2].
164 Id. at Appx. II (listing, among essential components of an effective racial
profiling law, “funds for periodically retraining officers and installing in-car video
cameras, body-worn cameras, and gun cameras”); see L. Song Richardson, Police
Racial Violence: Lessons From Social Psychology, 83 FORDHAM L. REV. 2961, 2975–
76 (2015) (describing the Fair and Impartial Policing program, which educates
agencies about implicit bias); Robert J. Smith, Keynote Address, Reducing Racially
Disparate Policing Outcomes: Is Implicit Bias Training the Answer?, 37 HAW. L.
REV. 295, 300 (2015) (describing implicit bias training as an “ascendant idea in
policing and scholarly circles” and providing citations); Implicit Bias, NAT’L
INITIATIVE FOR BUILDING CMTY. TRUST & JUST., http://trustandjustice.org/resources/

36

police forces may help too. 165 At the national level, federal policy
prohibits U.S. agents from profiling, although the policy has some
loopholes, and efforts to enact broader, federal legislation have
faltered. 166 A recent report by the President’s Task Force on 21st
Century Policing urges local agencies to adopt their own policies
banning profiling.167 There is a supportive role for doctrine to play as
well: The Court’s current, hands-off approach to stamping out
discriminatory motive could become a sort of doctrinal carrot—a “safe
harbor” available only to jurisdictions that have implemented adequate
safeguards to prevent discrimination.168

intervention/implicit-bias [https://perma.cc/T8XH-Y2A8] (last visited Dec. 19, 2015)
(discussing implicit bias interventions and collecting academic research); Press
Release, State of Cal. Dep’t of Justice, Attorney General Kamala D. Harris Kicks
Off First-of-its-Kind Law Enforcement Training on Implicit Bias & Procedural
Justice (Nov. 17, 2015), https://oag.ca.gov/news/press-releases/attorney-generalkamala-d-harris-kicks-first-its-kind-law-enforcement-training
[https://perma.cc/
ZJ8T-XBM5].
165 See, e.g., John J. Donohue III & Steven D. Levitt, The Impact of Race on
Policing and Arrests, 44 J.L. & ECON. 367, 371 & tbl. 2 (2001) (finding that “an
increase in the number of white police is associated with more arrests of minorities
but little change in white arrests,” while “an increase in minority officers is
associated with more white arrests but not more minority arrests”); Joscha Legewi
& Jeffrey Fagan, Group Threat, Police Officer Diversity and the Deadly Use of Force
(Columbia Law Sch. Pub. Law Research Paper No. 14-512, 2016),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2778692 (finding that a diverse
police force reduces the influence of group threat, lowering the number of officerinvolved killings of African Americans); see also LORIE FRIDELL ET AL., RACIALLY
BIASED POLICING: A PRINCIPLED RESPONSE 68–78 (2008) (arguing that hiring a
racially diverse police force can help reduce racial bias in policing); Robert J.
Friedrich, Police Use of Force: Individuals, Situations, and Organizations, 452
ANNALS AM. ACAD. POL. & SOC. SCI. 82, 90 (1980) (finding that biracial teams of
partners use less force). Overall, however, the empirical evidence regarding the
performance effects of having a diverse police force is mixed. See David A.
Sklansky, Not Your Father’s Police Department: Making Sense of the New
Demographics of Law Enforcement, 96 J. CRIM. L. & CRIMINOLOGY 1209, 1224–25,
1229, 1230 (2006) (reviewing studies).
166 See U.S. DEP’T OF JUSTICE, GUIDANCE FOR FEDERAL LAW ENFORCEMENT
AGENCIES REGARDING THE USE OF RACE, ETHNICITY, GENDER, NATIONAL ORIGIN,
RELIGION, SEXUAL ORIENTATION, OR GENDER IDENTITY (2014); see also NAACP,
supra note 163, at 18–19 (describing repeated attempts to pass federal legislation);
Letter from The Leadership Conference to Barack Obama, President of the U.S.
(Feb. 24, 2015), http://civilrightsdocs.info/pdf/Sign-On-Letter-Re-DOJ-GuidanceRevisions.pdf [https://perma.cc/AR6Q-8EEH] (conveying the “serious concerns” of
eighty public interest groups about the DOJ’s 2014 guidance).
167 PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING, FINAL REPORT OF THE
PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING 28 (2015).
168 See Rappaport, supra note 8, at 269.

37

There is one major sticking point I have obscured, however: We have
little idea which, if any, of these leading reform proposals actually
work.169 While mustering political will to enact reforms is an important
step toward change, there will be no change if the reforms enacted turn
out to be ineffective. This field is ripe with opportunity for researchers
who can figure out how to measure the effects of our “leading solutions”
to the problem of racial profiling.
V.

CONCLUSION

To tame police misconduct, we must first understand the nature of
the beast. Careful attention to the incentives of, and constraints on,
some of the major players in policing reveals not one but many species
of misconduct. These players include the constitutional rights-holders—
i.e., the victims of misconduct, on whom we rely to serve as private
attorneys general—as well as the intermediary institutions, like
insurers, that help operationalize the deterrent ambitions of our civil
liability regime. Some misconduct inflicts harms the legal system
compensates meaningfully; some inflicts harms that, even if
normatively serious, the system leaves largely unremedied. Some legal
injuries manifest immediately; others manifest only after significant
delay. These distinctions make it unlikely that any one solution, or any
single remedial regime, will work best to reduce police misconduct
across the board. Given these truths, police reformers ought to start
thinking like foxes rather than hedgehogs.170

See, e.g., Smith, supra note 164, at 302 (noting that, despite the growing
popularity of implicit bias training, when it comes to efficacy, “empirical support is
lacking”); Jack Glaser, How To Reduce Racial Profiling, GREATER GOOD (May 28,
2015),
http://greatergood.berkeley.edu/article/item/how_reduce_racial_profiling
[https://perma.cc/7UQW-T5ZA] (maintaining that, “to date, research has yet to
uncover a straightforward method that can lastingly mitigate implicit biases” that
result in racial profiling).
170 See ISAIAH BERLIN, THE HEDGEHOG AND THE FOX 1 (Henry Hardy ed.,
Princeton Univ. Press 2013) (1953) (“The fox knows many things, but the hedgehog
knows one big thing.”).
169

38