An Anarcho Capitalist Camel Nose Under the Tent Disguised as a Modest Wonkish Proposal

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90 Responses

  1. James Pollock says:

    Or you get the side effect, where cops would all try to get the "good" jobs, with low risk of liability (and thus lower cost for insurance), and the ones stuck in the "high-liability" jobs would be the worst ones, or at least, the ones with the least juice.

  2. Clark says:

    The magic comes from the fact that third parties are quantifying the risk.

    If a cop wants the excitement of a bad district, maybe that job comes with a $50/month bonus to cover expected insurance charges…but if he beats up a lot of perps and his insurance climbs to $250/mo, he's SOL.

  3. Ken in NH says:

    James,

    Possibly. Also it's possible that the high-liability areas attract the most determined and brightest, like surgeons in the medical field. On the gripping hand, a high-liability area is probably an undesirable place to live especially as police presence decreases and simultaneously becomes more expensive. Then people move away and policies bolstering poverty and crime (such as strict gun control and revolving door prisons) either change or the area becomes bankrupt. Oh look, Detroit.

  4. Ken in NH says:

    Clark,

    In a way, they already do buy malpractice insurance. It's just in the form of union or PBA dues. Of course, that form of insurance is more about removing all liability rather than covering it. It's also a hell of a lot more effective dollar-for-dollar as long as you ignore tax-payer costs and secondary effects.

  5. Clark says:

    Clark, In a way, they already do buy malpractice insurance. It's just in the form of union or PBA dues.

    I disagree, for two reasons:

    1) payouts from citizen lawsuits come from the taxpayers, not from the union

    2) even if they DID come from the union, the risk pool is far too large; to have every cop – regardless of record – covered by the same policy with the same premiums is like giving the same auto insurance quote to my mom and a drunk 17 year old in a Corvette.

  6. Mikhael says:

    We have a seccession on our hands

  7. Kevin says:

    a high-liability area is probably an undesirable place to live especially as police presence decreases and simultaneously becomes more expensive. Then people move away and policies bolstering poverty and crime

    I think this would be a major problem, as once a tipping point is reached it almost becomes an irreversible spiral downward. The cost for hiring a police force increases, while the take home salaries for police decrease.

  8. Haze says:

    Great idea; flawed mechanism.
    AFAIK, malpractice insurance isn't individually rateable.
    Auto liability insurance IS individually rateable thanks to driving record history, collision history, and other verifiable 3rd-party information that is (1)related to individual behaviour which is (2)deemed actuarially related to the insured risk.
    Malpractice insurance (for doctors, teachers, and other professionals – and cops) has no mechanism comparable to the driving record by which to appraise its applicants; moreover, because claim payments would likely be huge one-time catastrophic settlements, the insurer would learn only post-claim which insured is "dangerous."
    Malpractice policyholders with no claim history would be indistinguishable from a risk perspective: same job/ same training/ same experience/ same city equals same insurance rates for both good ones and bad ones, whether doctors, teachers, or cops.
    Which is part of the problem: how can one encourage honourable hard-working professionalism in ANY field if dishonourable lazy unprofessionals routinely collect the same pay, benefits, and pension?

  9. Shelby says:

    Kevin,

    True, but as Ken notes, that's already an issue; I see no reason to think Clark's proposal would make it any worse.

  10. James Pollock says:

    payouts from citizen lawsuits come from the taxpayers, not from the union

    Oops. Your proposed change does nothing to address this. The police agencies have liability because they negligently hire, negligently manage, and/or negligently discipline their employees. You haven't attacked this negligence at all.

    even if they DID come from the union, the risk pool is far too large

    Maybe this would act as an impetus to get the majority of cops to reject the bad apples within their ranks. "You're costing me money" is usually a pretty powerful argument.

  11. James Pollock says:

    Also it's possible that the high-liability areas attract the most determined and brightest, like surgeons in the medical field.

    Asserted without evidence; (and, AFAIK, the segment of the medical community with the highest insurance rates isn't surgeons, it's obstetricians.)

    There is a supply of medical professionals who are A) willing to take on underserved populations in exchange for medical-school debt relief, and B) willing to take on brief periods of service to underserved populations, while maintaining permanent, full-time (well-paid) positions.

  12. Malc says:

    While I quite like the concept, I think the reality is such that the pressure of police union will result in the cop's employer picking up the tab for those insurance dues, which is (in effect) no different from the situation in place today.

    It would, of course, make the Bad Apples easier to spot (because their dues would be higher), but I tend to believe that the Bad Apples are already known (within the department), but tolerated for a combination of union resistance and line management apathy (the "Blue Line" includes the people who manage the rank and file cops).

  13. Roscoe says:

    I presume your proposal implies that the current requirement that exists (in California and likely elsewhere) for the governmental entity employing the cop to indemnify him (or her) be eliminated. Otherwise the cop hasn't got anything to buy insurance for.

    Problem here is that you don't just deter cops from beating people up and violating their rights. You also deter cops from being proactive and investigating things when they think something illegal may be going on. Just one more reason to drive on by and not see anything (and that happens often enough already).

  14. Basil. Forthrightly says:

    In a better world, gun owners would have to buy liability insurance. Careless or reckless gun owners would have to pay more, leading some to change their habits.

  15. PonyAdvocate says:

    HOLY SH*T! Clark said something which I think is not just sensible: it is, in fact, an outstandingly good idea! And why stop with cops? How about over-zealous prosecutors? Or "experts" who peddle junk science in the courts?

  16. granny weatherwax says:

    TV stations would pay the high insurance premiums of the most dangerous cops purely for the dashcam rights.

  17. James Pollock says:

    TV stations would pay the high insurance premiums of the most dangerous cops purely for the dashcam rights.

    They get the stuff (dashcam footage, inside info, press releases, camera time from the PIO) that make the cops look good for free already. Why would they bite the hand that feeds them, and air stuff that makes the cops look bad?

  18. James Pollock says:

    You think it's hard to get a copy to take an interest in your case NOW…

  19. NI says:

    The problem is that beating people up and violating their rights are intentional torts, and usually you can't get insurance to cover intentional torts. I n fact, in some jurisdictions it is illegal to insure intentional torts, for reasons that are obvious if you spend a minute or two thinking it through.

    Here's what I would propose as an alternative: Abolish qualified immunity and let cops argue to the jury that their conduct was justified under the circumstances (most juries are sufficiently pro-cop anyway that the police still start with a huge advantage). When juries do award damages, make 90% of it come out of the department's budget and the remaining 10% out of the officer's pocket, with no ability to discharge it in bankruptcy. That would provide an incentive to the department to do a better job of managing its officers, and an incentive to the officers to behave.

    The City of Orlando just lost a lawsuit in which a police officer broke an 85-year-old man's neck. (Google "Travis Lamont" for further details.) The judgment was a half million dollars. The city's insurance paid for it. Had the department had to cough up 450k, and the individual officer another 50k, both of them would have noticed it.

  20. Zem says:

    Would it not be easier just to ban them from wearing their gang colours and dress in orange jumpsuits like the rest of us?

  21. jdgalt says:

    The trouble with malpractice insurance is that, like the present system (where in the very rare event a cop is found to owe someone recompense, the taxpayers pay), the cop doesn't foot the bill. The insurance company and its entire popluation of ratepayers do.

    This is quite reasonable in professions such as medicine, where nearly all acts of malpractice are true accidents (though even there, insurance creates a regrettable moral hazard). But for a cop, pretty much every act of malpractice is a deliberate and violent crime. About the only exception I can see is accidental damage to bystanders if a robber shoots it out with cops in a crowded place.

    So forget the insurance. Just strip cops of their immunity to lawsuit, so the first case where one of them severely mistreats someone without cause can cost him his life savings and home as well as his career, with no insurance allowed. A few successful awards of that sort will set an example to the rest.

    (Of course, we also need to prevent cops from evading the new liability rule by doing things like putting tape over their badge numbers. The only remedy for that I can offer is a rule saying that a covered badge is no badge, thus allowing victims to fight back physically if the cop does that.)

  22. tom says:

    @Clark, in some states, if your mom was to be found with a drunk 17 year-old in a Corvette, she'd be legally required to marry him. Normally, I'd say him/her… but lesbians can't marry in those states.

  23. G Joubert says:

    As they used to say back in the day, "When you're in trouble and in dire need of assistance, call a hippie."

  24. twency says:

    In a better world, gun owners would have to buy liability insurance. Careless or reckless gun owners would have to pay more, leading some to change their habits.

    Sure, and anyone who ever said anything to or about anyone in public would be required to carry slander insurance. Careless or reckless speakers would have to pay more, leading some to change their habits.

    Any other fundamental rights upon which you'd like to exercise a chilling effect while we're at it?

  25. James Pollock says:

    Any other fundamental rights upon which you'd like to exercise a chilling effect while we're at it?

    All of the fundamental rights come with responsibilities. Insurance is just a way of making sure you can meet those responsibilities when called to do so.
    That's actually the opposite of chilling.

  26. Mike G. says:

    So James, you're alright with paying a premium to say anything you want and then let the insurance company pay if you're sued for libel?

  27. James Pollock says:

    "So James, you're alright with paying a premium to say anything you want and then let the insurance company pay if you're sued for libel?"

    Oh, hell no! For that, I'm self-insured, which means I have to always watch myself, to make sure I'm not defaming anyone (i.e., my speech is chilled). Did I not just explain this?

  28. z says:

    The Thin Blue Line.

    Checkmate. :(

  29. Kirk Taylor says:

    Sounds like my response to your gun-insurance suggestion.

  30. Cat G says:

    Such a product already exists – it's called Professional Liability Insurance. In those cases where a governmental actor can be sued (usually alongside the state) for actions related to their professional duties, it provides some protection against financial ruin. It may be offered in conjunction with a Union or similar organization, or it may not be. However, in my experience mostly only supervisory individuals tend to get it – because they're most likely to get nailed with a lawsuit (often from disgruntled employees) related to their duties.
    It may or may not be necessary for police officers, largely because they already have partial immunity and the thin blue line and the convenient malfunctions of dashcams. Plus, as Clark has already noted, their defense it paid for by the state even in cases where the state is the plantiff against them. And usually it's the state that is on the hook for any judgements.
    But if you don't have those protections, professional liability insurance can be handy if you are likely to be targeted by a lawsuit while performing *lawful* duties as a government employee. (Although insurance in general seems a weird form of gambling in which you'd rather lose than win.)

  31. M. Alan Thomas II says:

    So, to be clear, the proposal is that the existing liability and insurance structure be shifted from a departmental-level one to an individual-level one?

    I suppose the same result could be effected by private parties if the insurance companies included clauses in their insurance contracts like "we can specify that officers we consider responsible for a claim are terminated as a condition of paying out and we must approve your hiring policies for excluding bad actors," but since they aren't already doing that—presumably because it would give a competitor a way to undercut them, so the market forces them to this position—you think we need the government to step in and require it?

  32. M. Alan Thomas II says:

    To be clear, I don't see that there is any way that the beneficiaries of this proposal—the public—could force it into existence short of requiring it through political action; they are not a party to the contractual relationship that they wish to alter. Thus, the only way that this would come about would be through the government regulation of the market for financial indemnification and a consequent restriction of the parties' freedom of contract.

  33. Clownius says:

    Just out of interest as the insurance rates go through the roof for cops working in high crime areas how do you staff them?

    Oh you dont. So no cops in the rough neighborhoods they only agree to work in the rich areas. I guess that would suit some just fine. more cops to protect you personally and less for groups you dislike.

  34. Christoph says:

    What good is malpractice insurance if the protection mechanisms (blue wall of silence, etc) are still in place? In a better world, the chances for holding cops and their employer (the government) responsible for unlawful behavior would be better. This would, in a better world again, result in the cops employer (the government) moving "expensive" cops to places where they can't do as much damage, or terminating their employment.

  35. JdL says:

    @James Pollock:

    Oops. Your proposed change does nothing to address this.

    I think you're confused. The cops buy insurance, and the insurance company pays any malpractice judgements against a given cop. That gives the insurance company reason to evaluate each applicant, and to quote premiums based upon an individualized assessment of risk. That gives cops incentive not to put themselves in a high risk category with their behavior.

  36. Mercury says:

    No way. In a better world the Bill of Rights would be taken seriously and you wouldn't even be thinking of drafting a Munich Agreement.

    First of all, -Occam's Razor time here- the best solution can’t possibly be: even more tort lawyers and lawsuits – that’s just not the way the universe operates. I mean, what are the top three problems that the introduction or expansion of the malpractice industry have fixed?

    The Bill of Rights is all about specific protections of individuals against government actions. Abuses of police powers against individuals fall squarely under this particular area of the Constitution and legal system. If proper redress in this specific area cannot be achieved via our nation’s most ancient citizen rights and protections then you/we have, to put it mildly, much bigger problems.

    Clark’s idea is akin to just admitting defeat – which may be a wise and prescient conclusion to draw given the circumstances but it’s not a fix, it’s a concession that ground has been permanently lost and it is an attempt to draw a different line in the sand farther back from the original one. Just like the USA will never have another constitutional amendment and Congress will never officially declare another war (because we have engineered similar, extra-legal work-arounds) Clark’s idea would end up making the government less accountable, not more, simply because the additional, inevitable bureaucracy, legal mumbo-jumbo and rent-seeking involved would ultimately work in the government’s favor (and the lawyers’), not the individuals.

  37. Haze says:

    Is the goal then to overlay the current (presumably flawed, biased, unaccountable) cop supervisory with a 3rd party (presumably less flawed, less biased, accountable via the "invisible hand" of cost) cop supervisory called "insurance?"
    Pity it is there's no means at hand to instead directly replace the problem of incompetent, ineffective supervisory with competent, effective supervisory able to weed out the bad and attract/promote the good.

  38. Bill says:

    @g joubert currently, calling a hippy has a much higher prospect of survival

  39. James Pollock says:

    I think you're confused. The cops buy insurance, and the insurance company pays any malpractice judgements against a given cop.

    I'm not confused.
    What you describe is a shift in the way the individual cop's liability is paid for (it left unsaid that there would be a shift to actually making the cops personally liable for official acts, but I went ahead and assumed that part). However, the complaint is that the city is having to pay judgments in lawsuits, and that problem has not been addressed. The city that hires a bad cop has liability for hiring a bad cop (negligent hire), liability for failing to properly manage a bad cop (negligent management, and sometimes respondeat superior), liability for failing to discipline their bad cop (negligent management again), etc. This is IN ADDITION TO the libabilty of the individual who acts badly while wearing the uniform. The city (or county, or state) will still be paying judgments in lawsuits due to their own liability, just as they do now. Just as any employer who is negligent in the hiring and supervision of its employees does now.

  40. James Pollock says:

    what are the top three problems that the introduction or expansion of the malpractice industry have fixed?

    Well, there's 1) people who are injured by malpractice may receive financial recompense. Where the malpractice is financial, that means the victim is actually made somewhat whole. Then there's 2) professionals are motivated by financial reasons as well as ethical and professional pride concerns to always do good work. Finally, there would be 3) the general increase in the availability of safety equipment created by fear of lawsuit.

    I'll give you that #3 is only tangentially related (most of the fear comes from product liability rather than malpractice liability for the engineers), so you could substitute in #4, since the medical professionals who are trained to provide care for those physically injured by malpractice are assured of being paid, the financial situation of those people is improved, thus it is more likely to be chosen as a career, and the supply of such people is maintained.

    Even with squishiness at #3, #1 and #2 seem pretty strong.

  41. WhangoTango says:

    Guys. You are not thinking four-dimensionally.

    What Clark wants is to get people to inadvertently agree that you can't say "it's not a bad system, just a few bad people", or "we just identify the Bad Cops and get rid of them and things will be fine", or "when a cop beats up some guy and shoots his dog, that's just the cop being a jerk, and the system did not encourage him to act that way".

    But on the other hand he's not posting this from a Somali IP address, so I guess we see the courage of his convictions.

  42. piperTom says:

    It's important to evaluate Clark's idea in the context it is offered: camel's nose. Success depends on two conditions: (a) some improvement on the current situation and (b) a stimulus for further gain. Already we see (b) in action: qualified immunity must go. Another for (b) — why must the administration of policing be a bureaucracy? What if each jurisdiction were to hire a company to do the hiring/firing, the payroll, and insurance (!!) for cops who would be otherwise have the same legal standing? Communities benefit from offloading administration and from the ability to switch providers in case of substandard performance.

    As to point (a), the gain from having third parties compete to own the jurisdiction's liability is obvious.

    Progress always depends on the intellectual climate. In this case, discussion of ways to introduce an element of competition into the monopoly of government services will help us even if the particular idea is not widely adopted. Kudos to Clark for that much.

  43. CJColucci says:

    It would be a better world if all of us carried insurance to cover all the shitty things we do. Actually, many of us do carry insurance for many of them already: auto insurance, homeowner's policies, umbrella policies, professional liability insurance, etc. And there actually is libel insurance.

  44. twency says:

    It would be a better world if all of us carried insurance to cover all the shitty things we do. Actually, many of us do carry insurance for many of them already: auto insurance, homeowner's policies, umbrella policies, professional liability insurance, etc. And there actually is libel insurance.

    Many people carry self-defense/concealed carry insurance too. There's nothing wrong with that. What's wrong is making the carrying of insurance a precondition of exercising a fundamental civil right, that of armed self-defense.

    Let me try another variation of the analogy: In a better world, owners of computers capable of posting on the internet would have to buy libel insurance. Careless or reckless users of such computers would have to pay more, leading some to change their habits.

    The above would be plainly contrary to public policy and to established First Amendment jurisprudence.

    Oh, and James Pollock, your assertion that requiring everyone hold insurance before engaging in constitutionally-protected activity is "the opposite of chilling" is risible.

  45. Gabriel says:

    Could have sworn I posted this exact suggestion in a comment here a few weeks ago, but I can't find it now.

  46. James Pollock says:

    Already we see (b) in action: qualified immunity must go.

    Of course, if you do that, then every person arrested who can spare the filing fee will sue their arresting officer (assuming they're the vindictive sort… want to bet against that?), the courts get clogged with frivolous cases which can't be dismissed without due process, and taxes go up for all of us (not to mention being on jury duty every other month.)

  47. James Pollock says:

    In this case, discussion of ways to introduce an element of competition into the monopoly of government services

    We have this now. It's called "federalism".

  48. Nathan says:

    Ahhhh Clark you crack me up. Although most people troll on other websites not their own.

  49. James Pollock says:

    Let me try another variation of the analogy: In a better world, owners of computers capable of posting on the internet would have to buy libel insurance. Careless or reckless users of such computers would have to pay more, leading some to change their habits.

    I wrote a paper in law school on a similar topic… whether failing to maintain security on a computer connected to the Internet is, or should be, negligence… and whether a guarantee of security should be required to authorize a computer to connect to the Internet. The justification being that a malware-infested computer does damage to other people's networked computer systems.

    The above would be plainly contrary to public policy and to established First Amendment jurisprudence.

    I don't see it.

    your assertion that requiring everyone hold insurance before engaging in constitutionally-protected activity is "the opposite of chilling" is risible.

    Either you don't know what "chilling" means (in this context), or you don't know what "risible" means.

    It is the fact that liability exists for defamatory speech that chills speech. If no such liabiilty existed, then people could speak freely without any fear of liability; there would be no chilling effect at all. But because there IS a risk of liability, people must avoid defamatory speech. To avoid the cost of litigation over the matter, people must also avoid the margin between what is and what is not defamatory… that is, they must avoid some speech which is not actually prohibited, which is to say, speech is chilled.

    Defamation insurance would NOT be chilling, because people could indulge in speech right up to the margin of what is defamatory, knowing that any costs of litigation would be borne by the insurance company, not the speaker. Of course, a person who regularly indulged in actual defamation would quickly find insurance unaffordable or unavailable.

    If there was a law that said defamation insurance was illegal, THAT would be chilling, because it would force every person to chill their speech under risk of liability.

    If there was a law that said defamation insurance was mandatory, that would not be chilling, because everyone would be able to speak right up to the margins of defamation, risk-free. Of course, people who are unable to afford insurance, but speak anyway, would be in violation of the mandatory insurance law, and subject to prosecution (right up until the law is challenged for being unconstitutional, which it plainly is… but that's a different question.).

    Mandatory defamation insurance is flatly unconstitutional. But it does not chill speech; rather, it does the opposite.

  50. twency says:

    Mandatory defamation insurance is flatly unconstitutional. But it does not chill speech; rather, it does the opposite.

    You're confusing the effect of insurance with the effect of a purchase requirement.

    Insurance is not chilling, but a requirement to purchase insurance as a precondition of ownership is plainly chilling. In the case of the hypothetical firearm liability insurance mandate there will be some quantity of persons who do not own, or at least consider not owning, a firearm due to the added expense of the associated insurance.

    Imagine if in order to own a Quran one were required to maintain "jihad insurance" on the chance you decided to employ the teachings of that book in a manner which hurt other people. Constitutional? Of course not, that would plainly have a chilling effect and infringe on the free exercise of religion.

  51. James Pollock says:

    Another approach to the point I made above:

    Currently, we have socialized mandatory insurance for criminal defense (if you cannot afford an attorney, one will be appointed for you at no cost to you.) What activity does this chill?

  52. Clark says:

    @James Pollock

    In this case, discussion of ways to introduce an element of competition into the monopoly of government services

    We have this now. It's called "federalism".

    Correction:

    We had this then. It was called "federalism".

  53. Clark says:

    @James Pollock

    Currently, we have socialized mandatory insurance for criminal defense (if you cannot afford an attorney, one will be appointed for you at no cost to you.)

    It is an entitlement, not insurance. There is a big distinction.

  54. James Pollock says:

    In the case of the hypothetical firearm liability insurance mandate there will be some quantity of persons who do not own, or at least consider not owning, a firearm due to the added expense of the associated insurance.

    Of course, that insurance cost represents the risk that engaging in that behavior entails, rather impersonally rendered in dollars. If firearms owners were personally responsible for the risk their ownership creates, then some people would forego ownership because they choose not to take on that risk. That's part of the nature of ownership, and it applies to the ownership of anything… real property, motor vehicles, industrial machinery (all insurable). Of course, some people may accept the risk, and then find themselves unable to pay the costs associated when a tree on their property falls on a passing car in the street, when the brakes malfunction on their car and they strike several other cars, or when their worker is injured on the job. Mandatory insurance makes sure that they can pay for the risk they have accepted as a consequence of ownership. (Of course, some are wealthy enough to self-insure… which is why, for example, both the mandatory auto insurance and mandatory workmen's compensation laws of my state allow for this.)

    I am broadly in favor of people who can and do handle firearms responsibly having access to them. By definition, however, accepting the risks incombent with ownership without ensuring the ability to pay damages resulting from that ownership is irresponsible, and that's true regardless of what type of property is being owned.
    People who own their own houses can have their freedom limited, even terminated, if they fail to maintain their property in a state of safety (for example, by failing to adhere to fire codes.) People who own their own cars can have their freedom limited, even terminated, if they fail to maintain their car in a state that is safe to operate it (for example, states that require mechanical inspection as a condition of registration). Why should firearms be treated differently from other types of property?

  55. Clark says:

    @Nathan

    Ahhhh Clark you crack me up. Although most people troll on other websites not their own.

    Hmm.

    http://en.wikipedia.org/wiki/Troll_(Internet)

    In Internet slang, a troll is a person who sows discord on the Internet by starting arguments or upsetting people, by posting inflammatory, extraneous, or off-topic messages in an online community (such as a forum, chat room, or blog), either accidentally or with the deliberate intent of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion.

    I try to start discussions, not arguments.

    I try to engage people intellectually, not emotionally.

    If I post at my own blog, that is – by definition – on topic, not off-topic.

    Given that the subtitle of this blog is "a group complaint about law, liberty, and leisure", if you think my posts are trolling, then you're confused, because you're not reading the blog you think you're reading.

  56. James Pollock says:

    It is an entitlement, not insurance. There is a big distinction.

    I said it was socialized. But it's still insurance. The only difference between other socialized insurances (workman's comp, Social Security, unemployment) is that it isn't itemized on your paystub.

  57. James Pollock says:

    We had this then. It was called "federalism".

    Interesting thesis. But you seem to have omitted the supporting evidence. Assuming you could find evidence that law enforcement doesn't vary across jurisdictions. You might start by comparing the conviction rate for marijuana possession between, say, Alabama and Washington.

  58. James Pollock says:

    I try to start discussions, not arguments.

    The line between "I am being snarky" and "I am being inflammatory" is a thin one, and subjectively drawn. An observer could come to the conclusion that you enjoy the conversational approach of "look, I dropped a grenade!" just to watch the reactions in the immediate vicinity.

    I try to engage people intellectually, not emotionally.

    What we try to do and what we actually achieve are not always the same, or even similar.

    If I post at my own blog, that is – by definition – on topic, not off-topic.

    I don't buy this as a definitional matter. Whatever you post on your blog is "authorized" by definition, but "on topic" and "authorized" are not the same concept.

    And, in any case, trolling does not have to be off-topic to be trolling. I think the Usenet OS wars are a prime example of this. "Macs are awesome and Windows sucks!" is just as much a troll in comp.os.* or alt.religion.* as they are in alt.sex.binaries.*

    Note that none of this is intended as a criticism… you do what you feel like doing, and it is everyone else's choice whether to engage or not. My choice to do so is an informed one.

  59. Clark says:

    Note that none of this is intended as a criticism…

    Oh, clearly not.

    (That, for the record, was sarcasm. And/or trolling, if you prefer.)

  60. Ryan says:

    Clark swings and misses here because this little thought-experiment ignores the role of policing hiring, training, and management – in short, the organization.

    I've maintained previously that law enforcement organizations are populated largely by good people with a small proportion of bad ones who do outrageous things, but in saying that I also neglected part of the picture: because the problem is not that there is a minority of hirees that do outrageous things, its that there is a persistent minority of this type. Herein lies the difference between the piecemeal law enforcement of the United States versus the consolidated approach in many other countries: organizational accountability.

    If American police who committed rights violations and/or criminal actions in the course of their duties were independently and rapidly investigated, disciplined, and (when appropriate) criminally charged, and this process was assured to be rigorously followed each time a citizen complaint was laid, the probability of such violations occurring would drop. If policing management were held accountable for their hiring practices and training, the probability of such violations would further drop. If the employer – that is, the governing body that pays the budget of the police force – was held accountable, the drop would be even more precipitous – but the problem will never been eliminated entirely because of the human factor.

    Clark's thought proposal pins all the responsibility on the individual, when the individual's behaviour is not the result of individual decision-making alone. It absolves the organization and managerial structures that permit these types of actions to occur.

    This is, un-coincidentally, the reason why many legal jurisdictions outside the United States have dedicated independent investigator teams (comprised of ordinary citizens and former law enforcement both) whose sole mandate is the independent investigation of any use of force incident involving police officers – it helps get away from the idea of cops investigating their colleagues.

  61. James Pollock says:

    Imagine if in order to own a Quran one were required to maintain "jihad insurance" on the chance you decided to employ the teachings of that book in a manner which hurt other people. Constitutional? Of course not, that would plainly have a chilling effect and infringe on the free exercise of religion.

    Again, I don't think you understand what "chilling" means in this context. Let's leave the Muslims out of this, and select a different religion, one which has some behaviors which are clearly illegal… Aztec human sacrifice, for example, or Native American use of hallucinogenics, certain fundamentalists' belief that sex with multiple underage females is holy, or whatever. Freedom of religion is NOT a blanket permission slip to ignore laws that apply to everyone.

    So, our fictional religion has some behaviors associated with it that are illegal, and are outside the range of the first amendment's guarantee of free practice of religion, which we will call "X". Nobody, whether they be practitioners of our fictional religion nor anyone else, is allowed to do "X" under penalty of law. By coincidence, "X" is both a crime AND a tort, so there is both criminal and civil liability for those who choose to do "X", whether for religious or whatever reasons.

    Meanwhile, related activites "A" through "T" are plainly allowable, not just to followers of our fictional religion but to anyone. So… if someone indulges in behaviors "U", "V", or "W", is it legal or not? It's legal, but it looks enough like "X" that a court case could arise, imposing litigation costs, even though U, V, and W are legal activities. To give an example of what I mean, compare child pornography with pornography that involves a person who is chronologically 18 years of age but who looks much younger… this is legal to do BUT you might be dragged into court and required to PROVE that your actor(s) reached 18 years of age before appearing in your production.

    OK so far? You have been "chilled" if you decline to exercise your right to do "U", "V", or "W" for fear of being dragged into court on a charge of "X". You have not been "chilled" if you may exercise the full range of your freedom without fear of being charged with a crime (or tort). This is not to say that all methods of avoiding "chill" are equivalent… the first choice would be if prosecutors didn't bring shaky cases overextending the statutes they're trying to enforce, second choice would be if someone else indemnified you for all costs at the time they were incurred, and third would be if someone indemnified you after the legal proceedings were completed. All reduce chill, but they do it to different extents.

    Now, requiring people to buy "X liability insurance" as a condition of practicing our fictional religion would be an obvious violation of the first amendment, which does not permit restrictions of any kind on the lawful practice of religion. That is, we CAN prohibit some actions, even if they are part of a religious tradition, for a good enough reason, but cannot place restrictions of any kind on the practice of other, related traditions.
    However, if we were to ignore that constitutional restraint and pass a mandatory "X insurance" requirement for the practice of our fictional religion, this would not have the effect of preventing people from engaging in the behavior of "U", "V", or "W". In fact, given the fact of mandatory insurance, they might be more likely to engage in "U", "V", or "W", knowing that they have insurance to cover the litigation costs that arise from such practice.

    There is a question, which was debated here last year, as to whether the effect of promises of pro bono assistance are an anti-chilling mechanism, or have the effect of chilling the other side. Will people who have been defamed incur the expense of suit if they know that the other side is getting defended for free? It's just a variation on the eternal access-to-justice question of how you assure that trials are won by the party iwth the better case rather than the party with the most resources to draw on.

  62. James Pollock says:

    (That, for the record, was sarcasm. And/or trolling, if you prefer.)

    QED.

  63. James Pollock says:

    This is, un-coincidentally, the reason why many legal jurisdictions outside the United States have dedicated independent investigator teams (comprised of ordinary citizens and former law enforcement both) whose sole mandate is the independent investigation of any use of force incident involving police officers – it helps get away from the idea of cops investigating their colleagues.

    This is not exactly unknown within the U.S., as well, but they have the same problem… frequently, the only witnesses are A) people accused of crimes, and B) police. Since both sides have reason to lie, finding truth is extremely difficult.

    I think the solidarity of police is stronger than is ideal for public policy (in other words, cops as a whole would make their jobs easier if they ran out the bad cops amongst their number.) I attribute the reluctance to do so with the notion that any cop could find him or herself charged with wrongdoing where there is insufficient evidence to come to a solid conclusion either way. And if I found myself so accused, I'd want "my" side to assume that the truth in such a case is that I am, in fact, a good person; therefore, I'd be inclined to extend such assumption to others. This is the same dynamic that exhibits when jurors believe the cop's story of what happened and disbelieve the accused's, and it's why cross-examination is so vital to finding the truth.

  64. Quarthinos says:

    Did you use Steve Jackson's fnorder code to make the title? If not, you need to make some changes to the source to allow it!

  65. Jon says:

    Clark,

    This is a really intriguing idea, and I rarely agree with anything you write! It really addresses the heart of the problem of policing, which is a lack of accountability (or, conversely, reward for a job well done).

    Pay officers more to take harder (unfilled) jobs and let the police sort themselves into these positions. If not enough people take the hard jobs, raise the wage. If an officer is being a racist jerk in any kind of job, his premia will rise and he'll basically be forced out of the profession.

    Another aspect of this policy is that it would provide a disincentive to militarize the police–if police are driving tanks and arm themselves with rocket launchers, their insurance is probably going to go way up. It will create a real and instantaneous price feedback to either the police officers or their employing agencies and force people to make more cost effective, sensible decisions about equipment.

    As interesting as it is, I have no idea how one would begin to implement this kind of approach. To the commenter who said insurance are PBA dues or whatever, that misses the point entirely. The consequences have to be personal; individual liability policies offer that advantage, which is not something provided by group policies.

  66. Clark says:

    Did you use Steve Jackson's fnorder code to make the title? If not, you need to make some changes to the source to allow it!

    I'm not sure what you're referencing; more info, please?

  67. James Pollock says:

    To the commenter who said insurance are PBA dues or whatever, that misses the point entirely. The consequences have to be personal; individual liability policies offer that advantage, which is not something provided by group policies.

    If you want the consequences to be personal, then you want no insurance at all, and you want bad cops (or lawyers, or doctors, or engineers, or whatever) paying the entire damage award when they do wrong. If you allow them to insure, then you allow them to transfer some of the cost onto people who don't do anything to need it.
    Conversely, if you let them group insure, then the cost of insurance (for each and every one of them) goes up if there are more bad cops, and goes down if there fewer bad cops. This gives the good cops a good incentive to get rid of the bad cops.

    The main point of malpractice/liability insurance is to make sure that the claims of innocent parties can and will be paid, regardless of the means of the defendant. This helps keep them from becoming dependent on the taxpayer, which is good.

  68. Quiet Lurcker says:

    The city that hires a bad cop has liability for hiring a bad cop (negligent hire), liability for failing to properly manage a bad cop (negligent management, and sometimes respondeat superior), liability for failing to discipline their bad cop (negligent management again), etc. This is IN ADDITION TO the libabilty of the individual who acts badly while wearing the uniform. The city (or county, or state) will still be paying judgments in lawsuits due to their own liability, just as they do now. Just as any employer who is negligent in the hiring and supervision of its employees does now.

    Nice idea that. When's the last time any of that found traction at trial?

  69. James Pollock says:

    Nice idea that. When's the last time any of that found traction at trial?

    A few minutes with the Google can answer that for you.

    This document came up on the first page of my search results. It's a little dated, but seems thorough on a quick glance-through:
    http://www.lemitonline.org/publications/telemasp/Pdf/volume%209/vol9no6.pdf

  70. BC says:

    This is a great idea. It allows republicans to have identical plans for the reform of our medical and criminal justice systems: tort reform!

  71. piperTom says:

    Without qualified immunity, "the courts get clogged with frivolous cases which can't be dismissed … taxes go up…"

    Aha! Yes, yes, we DO need "loser pays" rules for all civil suits.

    And the beat goes on…

  72. James Pollock says:

    Aha! Yes, yes, we DO need "loser pays" rules for all civil suits.
    And the beat goes on…

    Of course, with "loser pays" for all civil suits, pursuing rightful claims in court becomes too risky for poor people. I hope there aren't any bad side effects to that…

  73. Nathan says:

    @Clark

    http://en.wikipedia.org/wiki/Troll_(Internet)
    In Internet slang, a troll is a person who sows discord on the Internet

    Having read some comments I would say there was some discord sown by your post. Would you disagree?

    by starting arguments or upsetting people, by posting inflammatory, extraneous, or off-topic messages in an online community (such as a forum, chat room, or blog),

    Clearly some of the responses show they see your question as inflammatory or upsetting. Also clearly some are arguing here.

    either accidentally or with the deliberate intent of provoking readers into an emotional response

    I try to start discussions, not arguments.
    I try to engage people intellectually, not emotionally.

    Accidental trolling is still trolling by the definition you quoted. :)

    If I post at my own blog, that is – by definition – on topic, not off-topic.
    Given that the subtitle of this blog is "a group complaint about law, liberty, and leisure", if you think my posts are trolling, then you're confused, because you're not reading the blog you think you're reading.

    I think that most people don't even halfway understand the title you picked for this post. Not everyone has read "A Modest Proposal" but I think in this age "A Modest Proposal" would itself be called trolling. That in no way takes away from its value though. Sometimes people need to have the ridiculousness of our situation pointed out so we can work towards a solution. If a few people get all excited that's okay. Hopefully no one would get upset because of a little teasing.

    P.S. The Blog I'm reading is the one about the evil evil ponies. Everything else is just "guest articles" ;)

  74. Ken in NH says:

    Clark,

    You and I do not disagree on police union/PBA being a type of liability insurance. My tongue was planted firmly in cheek. Hence I said, "It's also a hell of a lot more effective dollar-for-dollar as long as you ignore tax-payer costs and secondary effects". It is insurance for the thug as the unions and PBAs lobby the government for various legal immunities, thwart investigations into thugs, and contract governments into using tax-payer dollars to cover liabilities.

  75. Jon says:

    If you want the consequences to be personal, then you want no insurance at all, and you want bad cops (or lawyers, or doctors, or engineers, or whatever) paying the entire damage award when they do wrong. If you allow them to insure, then you allow them to transfer some of the cost onto people who don't do anything to need it.
    Conversely, if you let them group insure, then the cost of insurance (for each and every one of them) goes up if there are more bad cops, and goes down if there fewer bad cops. This gives the good cops a good incentive to get rid of the bad cops.

    The "no insurance" thing only works if the police can actually pay out claims out of their pockets, which they generally can't in the case of 5, 6, or 7 figure liability. Same for lawyers, doctors, and engineers. That's why we require insurance.

    This also works like car insurance–you pay a premium based on other characteristics–performance evaluations, citizen complaints, equipment used, areas patrolled, prior lawsuits, credit rating, etc.–that proxy for your likelihood of sustaining a catastrophic claim. My buddy pays $2000 a year, I pay $500 a year. Now he doesn't drive anymore. This is not going to work nearly as well if we each pay $1250. So yes, this misses the point by not letting the underwriters price the risk.

  76. Grey Ghost says:

    You're talking about "insurable risk" in terms of the damage they cause, not the job hazard they face, right?

  77. 205guy says:

    James Pollock is kryptonite tonight!

  78. James Pollock says:

    The "no insurance" thing only works if the police can actually pay out claims out of their pockets, which they generally can't in the case of 5, 6, or 7 figure liability.

    If you want the bad cops priced out of being cops, isn't 5, 6 or 7 figure liability the way to go? (Especially if it can't be discharged by bankruptcy, and we add a tweak like "cops with outstanding damage awards are suspended without pay or benefits until the awards are paid.")

    That extra $125 a month probably isn't going to do it, at least, not for a while. Ask yourself if you'd pay $125 a month to get (or keep) a job that paid well, offers excellent health and retirement benefits, and there you have it.

  79. Christoph says:

    Of course, with "loser pays" for all civil suits, pursuing rightful claims in court becomes too risky for poor people.

    If a claim is most likely rightful, then pursuing it isn't risky. It's questionable claims that are risky to pursue. Also, at least where I live (non-US), there's something like legal cost insurance, and if you check with your insurance before filing a lawsuit, they'll probably tell you whether your claim is most likely rightful or only questionably rightful.
    Also, for really poor people, nothing really changes. You can't get water from a rock. The "winner" will still pay for their own legal cost if they can't get the money out of the loser.

  80. James Pollock says:

    If a claim is most likely rightful, then pursuing it isn't risky.

    Idealistic, and not all related to experience in the real-world judicial system. Going to a jury is ALWAYS risky. It is all too often the case that a rightful claim is buried by the side that has enough set aside for legal expenses. (How many lawsuits did the tobacco industry lose right up until the big one, when they ran into an opponent… 37 state governments… that could match them dollar-for-dollar?)

  81. markm says:

    Clark's post does not address the real problem: It is incredibly difficult to win a lawsuit against a cop, let alone a police department. (Qualified immunity is only a tiny part of this; it only protects a cop if no court has previously found a particular action to be unlawful. The big problems are bias by juries and judges, and the difficulty of gathering evidence against an organization that has both a large staff of investigators, and the power (not always used lawfully) to hide evidence and harass witnesses.) If abusive cops were routinely found liable, their employers would soon have second thoughts about keeping them on the payroll while paying judgments against them – and this would be amplified by the likelihood of "failure to supervise" judgments against the department and the supervisors in the _next_ lawsuit concerning that cop. But as things are, PD's do not have to pay out often enough or big enough to

    Some changes that might actually help:

    1. Require cops to wear a video camera and have it recording in all interactions with the public. The recordings must be stored for 10 years, and available to any person shown on them. Any missing recording not only creates a presumption against the cop and his department in any legal action civil or criminal, but failure to produce a recording of any interaction between a non-cop person and a cop on duty is a strict liability tort with a fixed minimum liability of $50,000. That is, if they have a recorder malfunction, first they'll pay everyone that cop touched or said one word to $50K, and then actual and punitive damages may be piled on top of that.

    2. Mandatory jury instruction: "Police officers cannot be presumed to be any more honest than alleged criminals."

    3. Make unions liable for protecting members when they engage in illegal activities. This doesn't mean providing a lawyer for an accused member, but when, e.g., a cop is shown by a preponderance of evidence to use excessive force or file a false report and the union helps him keep his job, the union has assumed supervisory liability for this cop's future actions.

    4. Restore the right we once had of private prosecution – that is, allow private citizens to not only sue for damages, but also seek indictments for crimes by government agents in front of a grand jury or judge under the same rules as a DA seeking an indictment. If the citizen wins a conviction, all legal costs are re-imbursed from the budget of the prosecuting agency that had jurisdiction, and the jury or court will also award damages to the plaintiff if there were any individual damages. It's paradoxical if seeking to prove a criminal case beyond reasonable doubt is easier to win than a civil suit, but all the cases won by DA's with laughable evidence seems to say that this is often the case. Not to mention the incentive it gives official wrongdoers to settle the case!

    At a minimum, this would provide a powerful incentive to the people in power to reform the indictment and criminal trial processes.

    5. The qualified immunity rule – that cops are not liable for constitutional and statutory violations if the courts have not yet ruled that a particular act is a violation – should be modified, not thrown out. Private citizens should have the same protection as government agents – you should not have to risk jail or ruinous fines to get a court ruling on a foggy part of constitutional interpretation or the statutes and regulations. The reach of the rule should be reduced to cover only fringe cases that are truly questionable, not any act that is clearly a violation of constitutional principles, whether or not any official has previously been so brazen as to do it and lose in court. And actual damages in the narrowest sense should still be awarded even when QI protects the cops from paying punitive damages, pain and suffering, etc.

  82. Orv says:

    @twency: Or, to put it another way, we can't force Christians to buy abortion clinic bombing insurance, so the onus is on clinics to buy it instead? (In which case we're trading one chilling effect for another, interestingly.)

    The original proposal is an interesting one, but it does ignore the experience of the medical system, where liability has driven doctors and pharmaceutical companies away from high-risk fields and limited availability of care. The main result would be that high-crime areas would be unable to hire police at any cost, because insurance companies would redline them. I suppose in Clark's world the absence of government paid police isn't a bad thing, though. Presumably the urban gangs would become private free-market police forces and people could pay them for security. It's not a protection racket, just libertarianism. ;)

  83. markm says:

    "Of course, with "loser pays" for all civil suits, pursuing rightful claims in court becomes too risky for poor people."

    Without loser pays, defending against bogus claims is too expensive for the poor and the middle class.

  84. Joe Blow says:

    This idea will work the same way that high malpractice insurance premiums have worked to ensure that only really great doctors practice medicine, and that good ones aren't driven out.

  85. James Pollock says:

    Without loser pays, defending against bogus claims is too expensive for the poor and the middle class.

    Can you provide some examples, drawn from those areas where the American Rule dominates?

  86. rsteinmetz70112 says:

    Can you provide some examples, drawn from those areas where the American Rule dominates?

    Please read the Prenda articles here. Predatory attorneys sue hundreds of John Does for hundreds of thousands of dollars and then offer to settle for $3-4000. The Prenda activities are estimated to have affected 20-30,000 people. There are other more competent people out there doing the same thing.

    In civil cases people are not provided free legal defense like they are in criminal cases.

  87. James Pollock says:

    Please read the Prenda articles here. Predatory attorneys sue hundreds of John Does for hundreds of thousands of dollars and then offer to settle for $3-4000.

    At first glance, that seems a good argument. But I think a deeper analysis shows that, if the American Rule contributed to the Prenda abuses, it's way down on the list.

    But first (and here's the fun part) the Prendanistas cases aren't actually an example of bogus cases. They made their money by threatening to sue over actual infringements. The flaw in the law they were exploiting isn't the American Rule (although it certainly affected their strategy)… the flaw they exploited is the statutory damages section of the copyright act that lets them ask for damages far in excess of the actual damages incurred.

    After that, it's all psychology. Threaten to sue over pirated porn because most people would prefer to keep their taste in pornographic entertainment private. Price the cost of settlement lower than the cost of retaining an attorney to defend the case because a case that settles without requiring plaintiff/attorney to actually prepare a case is way more profitable than one that has to proceed through trial before resulting in a judgment which still has to be collected (Hmmm… better price the settlement at less than a bankruptcy lawyer would charge, too.)

    Here's how to work it out: You could run a Prenda-like copyright infringement settlement operation profitably even under loser pays. You'd have to have actual clients who own actual copyrights, perform actual investigations to generate evidence that the persons sued actually downloaded the files, and, um, not seed them yourself. But it could be done. It could be done because you can actually sue for thousands of dollars even though the actual damages are pennies, or even fractions of pennies.

  1. January 7, 2014

    […] A proposal from Popehat's Clark: […]

  2. February 20, 2014

    […] What if cops, as opposed to, say, gun owners, were obliged by law to purchase liability insurance? [Popehat] […]