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Serving Northern St. Louis County, Minnesota

Lawsuits pose rising risk to small town policing

Rising cost of officer misconduct increases need for new calculus

Marshall Helmberger
Posted 5/5/21

REGIONAL— The cost of a fatal police shooting is on the rise, and that elevates the risk for taxpayers, particularly in smaller communities that maintain their own police forces. When the city …

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Lawsuits pose rising risk to small town policing

Rising cost of officer misconduct increases need for new calculus

Posted

REGIONAL— The cost of a fatal police shooting is on the rise, and that elevates the risk for taxpayers, particularly in smaller communities that maintain their own police forces.
When the city of Minneapolis settled a lawsuit from the family of George Floyd for $27 million back in March, city officials were betting that a jury would award even more.
While a city like Minneapolis has the deep pockets necessary to issue such awards when their police kill citizens without justifiable cause, that may not be the case for smaller communities. As the liability risks of police misconduct, or even questionable conduct, escalate, the stakes are increasingly high for communities for which damages of even a few million dollars could be crippling.
Increasing liability was one of the factors cited by Breitung Township officials when they made the decision to disband their police department earlier this year. “It’s a problem for a whole bunch of municipalities, whether you’re talking excessive use of force, violating rights, or racial profiling,” said Richard Painter, a University of Minnesota law professor who specializes in civil litigation. “This is a big area of potential liability.”
Indeed, for many small communities that maintain their own law enforcement, one bad police shooting could leave a small city or township bankrupt. While most local governments maintain liability insurance to protect against such outcomes, the current liability limits on most of their insurance policies rarely exceeds $2 million.
Almost all but the largest cities in Minnesota obtain their insurance through the League of Minnesota Cities Insurance Trust, or LMCIT, which typically maintains a $2 million limit. “That’s not going to cover you on one of these cases,” said Painter.
While state law limits most government tort cases in Minnesota to $1.5 million, the lawsuits filed in such cases are often based on federal civil rights laws, in which there are no limits.
Increasing liability limits is one possible protection, but higher protection means substantially higher premiums. “The LMCIT was created and is owned and managed by its members, which are cities and other local government units,” said Dan Greensweig, who administers the trust for the League. Greenswieg says setting the limits of liability is a balancing act that weighs the coverage most communities need against the cost of premiums. “As the legal environment and our members’ exposures change, we modify our coverage limits accordingly,” said Greensweig. “All other things being equal, though, higher limits mean more exposure for us and our reinsurers and result in higher premiums.”
Concern about the liability over police misconduct really isn’t that new, according to St. Louis County Sheriff Ross Litman. “But recent incidents have certainly highlighted the consequences that civil settlements or liability can bring on any entity,” Litman said. St. Louis County, which is large enough to be self-insured, is less at risk than smaller units of government. The county maintains a well-established tort liability fund to pay jury verdicts when they happen.
The county recently settled a small liability case following an injury to an inmate of the county jail. But the county could face a larger claim after the shooting death of 20-year Estevon Elioff in Mt. Iron back in December. Litman said the county hasn’t seen a lawsuit in that case, at least not so far.
Litman said St. Louis County has been relatively fortunate to have avoided major liability from the actions of county law enforcement. “But that could change today or tomorrow,” he said.
Limiting liability
When it comes to civil liability, communities can rely on more than insurance to protect themselves. “These settlements stress the importance of having qualified, well-trained staff,” said Litman. He notes that St. Louis County deputies train frequently, including critical incident training, so they have the skills to defuse incidents that can lead to citizen fatalities. “We’ve always stressed that,” said Litman, who noted that the training is now mandated in Minnesota.
Painter agrees that communities can help reduce their risks by taking appropriate steps. “City councils should be proactive,” he said. “If they see evidence of racial profiling, it has to be reported. If you have reasonable controls in place, you can protect against larger judgments,” he said.
Painter said he believes that the vast majority of police are law abiding and want to do the right thing. “But, in any group, you have people who are out of control,” he added. By addressing those officers, he said, communities can protect themselves. “Getting more body cams on police would help,” said Painter, who notes that the cameras can help document improper conduct by officers. “Video cameras and body cams have made a huge difference,” he said.
According to Painter, communities also need to have a reporting system if their police may be engaging in racial profiling and need to focus on addressing officers who are the subject of multiple complaints. If communities fail to act even in the face of complaints, the liability risks can escalate, notes Painter. “At a certain point, the statistical evidence turns against you,” he said.
Painter also suggests that communities look at ways to change the way that police conduct themselves. “They should really reconsider the ‘Mickey Mouse’ stops, for minor things,” he said, noting that many police shootings start with traffic stops for minor offenses. Painter said many minor issues can be addressed without having to interact in person with a driver. “Why are municipalities stopping cars over a taillight?” he asked. “Just snap a photo and send them a ticket in the mail.” He said it would be far more efficient for police to enforce expired license tabs by walking through a parking lot and sticking tickets on windshields. “We really need to pull back on some of these kinds of things,” he said.
Litman said there’s some validity to Painter’s suggestions, although he notes that communities can benefit by having frequent interactions with their local law enforcement. “Certainly, if you minimize the pro-active contacts, you will reduce the use-of-force incidents,” said Litman. “But I don’t know if that’s the direction that we as a society want to go.”
Given the growing complexity of law enforcement in an age when video cameras are now nearly ubiquitous, Litman said he fears that policing is inevitably headed in that direction anyway, and that is likely to make it increasingly more difficult for small communities to maintain their own police. “Why would a small entity like that want to deal with all of this?” asked Litman. “All the training and the supervision, and the liability?”

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