The city of Niota, Tennessee, population 700, has a police department with just three officers. So when two of them wound up in court in 2011 accused of beating up a local motorist, Niota had a huge problem. The motorist sued for $35 million dollars— more than 75 times the city budget.
Civil courts are a common path for police misconduct victims, costing major cities hundreds of millions of dollars over the past decade. Many early Black Lives Matter headlines are now linked to a monetary settlement; Michael Brown, $1.5 million, Freddie Gray, $6.4 million, Eric Garner, $5.9 million, Tamir Rice, $6 million. The police almost never pay the bill — in most major cities, the burden falls to taxpayers.
But a town the size of Niota can’t raise that kind of money. Like most smaller cities, it purchases liability insurance, either via a commercial insurer or a nonprofit “risk pool” with other nearby governments. These insurers help cities weather the cost of legal claims ranging from playground injuries to wrongful convictions to police abuse.
“We could not have a city without insurance,” said Lois Preece, then and now Niota’s mayor. “Anyone slipping on the street could wipe our budget out.”
By the summer of 2013, Niota’s insurer, a Tennessee risk pool, was fed up. Preece said the insurer gave her a choice: remove the officers or lose coverage. And just like that, though criminal and civil cases against them were dismissed, two-thirds of Niota’s police force had to be replaced,
Niota’s dilemma is not unique. Roughly 85 percent of police departments serve municipalities with under 25,000 people and are likely covered by a liability insurer. These smaller departments rarely make national news, but they are more likely than big city departments to be troubled, experts say. While police killings have fallen in big cities over the past six years, a FiveThirtyEight data analysis shows they have increased in suburban and rural areas.
In recent years, a little-known player has been quietly reshaping America’s smaller police departments: the insurance industry. Across the nation, city insurers have demonstrated surprising success in “policing the police;” eliminating risky protocols, ousting police chiefs, and even closing problematic departments altogether.
Yet insurance is no white horse, experts caution. Some experts worry many insurers do little more than shield cities from the consequences of police misconduct.
“As an aggregate, insurers need to wake up,” said John Rappaport, a University of Chicago Law School professor who specializes in criminal justice. “There are high levels of fatal police violence. You may think you’re an insurance company, but you’re actually a police regulator.”
Hanging out at cop bars
For insurers, police reform is about money, not morality. Just as State Farm wants to prevent car crashes, a liability insurer wants to prevent lawsuits.
When the customers are cops, “loss prevention” means teaching a police department how to reduce risk. In the first in-depth study on how insurers affect police, Rappaport surveyed the industry’s carrots and sticks, from policy audits to virtual reality use-of-force simulators. Often, insurers educate departments on risky areas like vehicle pursuits and strip searches. Many do site visits and ride-alongs, keeping a “watch list” for departments with histories of costly lawsuits, according to the study. Rappaport’s favorite example is the insurer who sends representatives incognito to hang out at “cop bars” to observe the local police culture.
“Insurers are clearly affecting the behavior of police departments they insure, for better or for worse” said Rappaport. “They are capable of doing it for the better, and sometimes more efficiently than governmental agencies and prosecutors.”
The police department in the tiny California city of Maywood, for example, had faced pressure to change from the California attorney general, its city council, and the Los Angeles Times —but its insurer ultimately had the last word.
By 2010, the one-square-mile town just south of downtown L.A. had racked up $17.3 million in five years of claims against the police, according to court documents. The Los Angeles Times said the Maywood department was “a haven for misfit cops who had been pushed out of other law enforcement agencies for crimes or serious misconduct,” while the attorney general said it was responsible for “gross misconduct and widespread abuse including unlawful use of force against civilians,”
In response to Maywood’s climbing liability costs, the city’s insurer gave the department a 20-step “Performance Improvement Plan.” Maywood did not meet the insurer’s requirements to improve officer training and incident reporting, according to court documents. The city lost coverage and disbanded its police department. The Los Angeles County Sheriff’s Department is now responsible for patrolling Maywood’s streets.
“It is very difficult on a city to maintain insurance in general in today’s climate,” the city of Maywood said in a statement. “During the time that the city reorganized and disbanded its police department it was facing a fiscal crisis. The PD was plagued with many issues … this it no longer the case for the city and we have found that it was [a] good fiscal and policy decision for the city.”
Insurers can also push operational and personnel changes. In the Tennessee city of Rutledge, pressure from an insurer led the mayor to fire a police chief facing assault charges. “I hate it for him, but my hands were tied,” the mayor said.
But not all insurers take such a hands-on approach to police risk. Some don’t see personnel changes as part of their philosophy. While Rappaport calls insurers “private regulators,” some shied away from that characterization in interviews with NBC News, preferring to be called “partners,” “consultants” and “extensions” of the cities they serve.
The downsides: “insurers are not the panacea”
Amid nationwide calls for police reform, some experts wonder why there are not many more cases where insurers prompt reform.
“It’s hard to believe police brutality payouts would not motivate a city struggling with their insurance,” said Lisa Soronen, executive director of the State and Local Legal Center. “How would that not make a difference?”
But Soronen says it’s more complicated than that, because lawsuits are an imperfect proxy for police misconduct. It is not easy to sue the police. Barriers range from attorney fees to legal doctrines like qualified immunity that protect government entities. Suits can drag on for years, which means consequences are delayed.
The Association of Governmental Risk Pools, which has 215 risk pool members, said it could not comment specifically on police-insurer relationships. It’s a difficult ask, said director Ann Gergen, since widespread variation across cities complicates trends even for general liability, anything from sidewalk maintenance to fire departments.
“There are no norms, there are no trends, and there are no single directional pointers,” said Gergen, “Every single jurisdiction is different, and many of the commonly cited cases are exceptions.”
That’s one of the drawbacks to relying on informal regulation by insurers rather than officials who are answerable to the public, some experts worry. Nobody notices when a risk pool drags its feet.
“There’s a high road and a low road to reducing liability costs, especially when there is no real standard,” said Joanna Schwartz, a law professor at UCLA who specializes in police liability. “The low road is reducing payouts as opposed to reducing harm.”
For each case like Niota and Maywood, experts say, there are likely dozens more where insurers opted not to demand changes. That’s what happened in one of Washington state’s largest-ever police payouts, a $13 million settlement for the 2013 shooting of Leonard Thomas.
Court documents say the 30-year-old Black man was killed by a Lakewood police sniper while unarmed and clutching his four-year-old son on his porch. When Thomas’ mother reported a domestic dispute, a Pierce County SWAT team that included Lakewood officers had responded with military-style vehicles, explosives, and snipers.
The city of Lakewood and four of its officers were later found liable in a lawsuit for civil rights violations. Insurance paid $11.5 million of the $13 million settlement. The risk pool did not drop Lakewood, nor did it pressure Lakewood to make internal personnel changes. After Thomas’s death, the Lakewood department looked quite similar. Lakewood left the county SWAT team, but all four officers remained on the Lakewood force. One was promoted to chief.
Now the city faces another wrongful death claim involving one of those same officers. In May, Lakewood officer Michael Wiley shot and killed 26-year-old Said Joquin during a routine traffic stop. The $28 million claim alleges Joquin had his hands up. In 2013, Wiley led the SWAT team that breached Thomas’s door with explosives. He also repeatedly shot Thomas’s dog, which the court found unreasonable because the dog had already been shot by a different officer.
It’s a tough pill to swallow for Jack Connelly, a civil rights lawyer who represents Joquin’s family and previously worked on Thomas’ case.
“When you’re bringing these cases, you hope they’re going to cause some change and prevent something similar from happening in the future,” said Connelly. “It’s very disconcerting that nothing was done to prevent this from happening again.”
The Joquin claim alleges Lakewood was negligent and reckless, because it “did nothing” to improve training or rein in officers after Thomas’s death. Wiley is not Lakewood’s only repeat liability risk. Jason Cannon, another Lakewood officer named in the Thomas suit, has been involved in two other fatal police shootings, one in 2011 and one in 2015. Joquin’s claim is now the third Lakewood police killing case that names Michael Zaro, the current Lakewood police chief who commanded the SWAT team that killed Thomas.
No criminal charges were filed against officers in any of the cases. The 2015 officer-involved shooting was settled with the plaintiff in civil court for $500,000.
The City of Lakewood, its police department, Wiley, Zaro and Cannon all declined or did not respond to NBC News’ requests for comment. A review of annual police department reports from Lakewood says that Lakewood has expanded a program where officers partner with mental health professionals. The reports say use of force reports dropped nearly 20 percent between 2014 and 2018.
The situation in Lakewood is an illustration of the role economics can play in police accountability failures across the country, says the ACLU of Washington.
“Insurance is not the only problem with police accountability, but it is an important factor,” said Nancy Talner, a senior staff attorney with the ACLU of Washington. “Economics are supposed to be about incentives and deterrents affecting people’s behavior. That failed here.”
Insurers have no mandate for police reform, and many wouldn’t want one. However, Connelly believes insurance provided a “a cushion” for Lakewood, insulating politicians and taxpayers from financial consequences.
“When the Thomas verdict was read, you could really feel justice in the courtroom,” Connelly continued. “And that’s what’s so sad about the city of Lakewood. They just did not pay attention.”
To insure or not to insure?
Some wonder whether cities would tolerate less police risk if they had no insurance at all.
The Detroit suburb of Inkster, Michigan, had to fix its problems without the help of an insurer. When it was hit by a police claim in 2015, it was in financial no-man’s-land, too financially distressed to pay any claims out of its budget or obtain sufficient insurance.
The city was sued for the beating of Floyd Dent, a 57-year-old unarmed Black man who rolled through a stop sign. Inkster police officers pulled him from the car, put him in a chokehold, punched him 16 times, kicked him and Tasered him, all on dashboard camera.
Dent’s settlement was $1.4 million, but Inkster’s insurance only covered payouts above $2 million. Budget strains had already forced the city to dissolve its school district and lay off employees. So Inkster, where one in three people live in poverty, had to raise property taxes.
“The costs of insurance for communities that look like Inkster seem to be higher across the nation,” current Inkster Mayor Patrick Wimberley said via email. “Unfortunately the residents of the city took the hit in this instance as there was a tax levy added to every residence to cover the cost of the judgement.”
It was a breaking point for the city — among the most dangerous in Michigan, with a history of police trouble, perceived as “slum lord heaven,” with “no police, no rules” according to residents. Soon thereafter, the chief of Selma, Alabama’s police department, William Riley, got an unexpected phone call from Michigan, asking if he would help reform the Inkster department.
“The lawsuit was the wake-up-call,” said Riley, who took the job. “They sort of had no choice but to change.”
Riley inherited an over three-quarters white department policing a nearly three-quarters Black population. With local businesses and faith leaders, he started a police academy scholarship that has brought five Black officers onto the 23-person force. He emphasizes “community policing” — initiatives like movie nights and a police athletic league. His other investments have included body cameras, engagement with incarcerated citizens and training on areas like cultural awareness and mental health. Crime has dropped nearly 25 percent since 2016.
“The word reform doesn’t say much.” said Riley. “ We’ve been ‘reforming’ for decades now. We had to transform.”
But growing pains linger. Inkster cut nearly two-thirds of its officers and now partners with the Michigan State Police.
“You changed the local department, but you’ve now got a city full of state police who don’t know me and don’t know Inkster,” said James Gibson, a formerly incarcerated resident of Inkster. “So now there’s no schools, but more cops. It’s the opposite of what you do when you want to improve the community.”
In the question of who pays for police misconduct, there are no perfect answers. Relying on an insurer to fix a flawed department may seem to some like a poor proxy for a courtroom reckoning, but at least insurers can make multi-million dollar settlements possible.
“This is a story about potential, about promise,” said Rappaport. “This is a story about getting insurers to wake up and embrace the role they’re playing.”
“If you’re not doing good, you’re doing harm,” he added.