POLICING THE POLICE: A ROADMAP TO POLICE ACCOUNTABILITY USING PROFESSIONAL LIABILITY INSURANCE

"I can't breathe," pleaded George Floyd in May 2020 after an officer stopped him for allegedly using a phony $20 bill. Police officer Derek Chauvin knelt on Floyd's neck for over nine minutes, killing Floyd and sparking protests around the country that continue to this day. A few years earlier, in Staten Island, Eric Garner uttered the same words as Officer Pantaleo used an illegal chokehold on Garner that ended his life for allegedly selling untaxed cigarettes. In light of recent police shootings and violence, there have been rampant discussions about defunding and abolishing the police, the abolition of qualified immunity, and police accountability more generally. These discussions have revealed that it is nearly impossible to weed out the bad officers so that the good officers can thrive. Incident after incident demonstrates to the nation what many of those in communities of color have long known: there is currently no real police accountability for police misconduct. It is our thesis that even if we defund, dismantle, and reimagine a narrowed police force by transferring responsibilities to other professionals such as social services, healthcare, and community services, we will still need a system of accountability for a police force focused more narrowly on routine, on-going, and violent crimes. This Article proposes a four-part solution to the current lack of real police accountability by restricting police unions' collective bargaining, narrowing qualified immunity, and using professional liability insurance as an instrument for identifying officers engaged in risky policing behaviors and pricing them out. Just as physicians, lawyers, accountants, and other professionals carry insurance for protection against claims made by their clients, our solution proposes that police officers carry insurance to mitigate police misconduct. Our proposal offers a constructive roadmap to police accountability and aims to create a system that will save lives by detecting, preventing, and deterring police misconduct, while at the same time reducing taxpayer costs and compensating victims fairly.