There’s a meme I’ve seen floating around Facebook a few times which has two lines of text placed over a photo of Congress.
“Who pays when you screw up?” the top line asks, and answers: “You do.”
“Who pays when they screw up?” the bottom line reads, referring to Congress in the background. “Nope,” it replies, “still you.”
That’s true at the federal level—government is, after all, perhaps the one place where both success and failure are rewarded with more funding—but it’s true at the local level, too. Specifically, it’s true about cash settlements in police misconduct cases, which many Americans don’t realize are overwhelmingly paid for by taxpayers, not the police officer(s) who screwed up.
Of course, sometimes the cops pay a little. But I do mean little. One study concluded that of the $730 million paid in officer misconduct settlements between 2006 and 2011 by 44 of America’s largest police departments, a whopping 99.98 percent was covered by taxpayers. That leaves just 0.02 percent to be covered by the people whose wrong behavior caused the settlement to happen in the first place. That’s less than $150,000.
Offending cops in smaller cities typically “never contributed to settlements or judgments in lawsuits brought against them,” the same study reported. In some places, it’s illegal to make citizens pick up 100 percent of the tab, but crooked police department heads ignore the law and pass the entire cost onto innocent taxpayers anyway.
The logic of this practice is that if police have to worry they’ll be held financially responsible for their actions on the job, they’ll be too scared to actually do that job. The “threat of personal liability for damages can inhibit government officials in the proper performance of their duties,” as the Supreme Court said in Forrester v. White (1988).
FBI Director James Comey recently said something similar. “There’s a perception that police are less likely to do the marginal additional policing that suppresses crime,” he commented, attributing it to the “viral video effect.” If police officers think what they do might end up in a viral misconduct video online, they decide not to act all, he suggested.
Actual police officers disagreed. “He ought to stick to what he knows,” James O. Pasco Jr., executive director of the National Fraternal Order of Police, shot back. “He’s basically saying that police officers are afraid to do their jobs with absolutely no proof.”
The same can be said of settlement payments, for two reasons in particular. First, police already enjoy a lot of extra legal protections that don’t apply to the rest of us. They are indicted and convicted at much lower rates and are afforded extra privacy while accused. Many localities even have an “officers bill of rights,” which explicitly spells out a collection of unique legal privileges to avoid exactly the sort of chilling effect Pasco says isn’t happening.
And second, when officers do pay a significant portion of brutality settlements, the total amount of the settlement tends to be way, way lower. Think thousands instead of millions—because it’s easy to get big bucks from the taxpayers, but, of course, it’s not realistic to expect that kind of money from just a few individuals.
Moreover, the victims of police misconduct can feel a sense of justice not so much in the amount of money they get but in its source. “[These victims] want an acknowledgment that the police did them wrong or hurt them,” explains Craig Futterman, a Chicago Law professor who has worked on cases where the officers personally paid. “That’s why some of these [officer-paid] settlements are for such small amounts.”
The incentives of requiring an officer contribution to settlements against them are a huge improvement over the alternative, too—as anyone who has taken Economics 101 understands. Contrary Comey, accountability measures like this can serve to improve police behavior, not impede it. Just like the rest of us, cops are going to do a better job if they know they’ll be held responsible when they screw up.
Economist Thomas Sowell was speaking of education policy when he commented that, “It is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.”
But if I may slightly tweak the quote, it is equally hard to imagine a more stupid or more dangerous way of policing than empowering people to enforce our multitude of confusing and obscure laws who pay no price for being wrong.
Taxpayers shouldn’t be on the hook for police mistakes—and it’s not anti-police to say that. It’s anti-taxpayer to say otherwise.