I. Introduction

Paula McGowan questioned, “Why do [police officers] get passes on killing people? . . . If the system was right . . . they would hold these [officers] accountable.”^[1] McGowan’s son, thirty-three-year-old Ronell Foster, was shot and killed by a police officer after Foster was stopped for weaving his unlit bicycle in and out of traffic one evening.^[2] The officer, Ryan McMahon, was not charged with Foster’s murder because the local district attorney thought the fatal shooting was “justified.”^[3] A year later, Ryan McMahon shot and killed another Black man, Willie McCoy.^[4]

Since January 1, 2015, the Washington Post has been tracking fatal shootings of American citizens by on-duty police officers.^[5] Each year, police officers kill nearly 1,000 people.^[6] Black people are more than twice as likely to be killed by police than White people.^[7] As in the case of Officer Ryan McMahon, police officers who kill civilians, particularly Black civilians, are rarely convicted.^[8] If officers are not held criminally liable, then most assume that in a civil suit officers are responsible for the large judgments or settlements that are usually awarded to victims’ families.^[9] In reality, research has shown that police officers are almost always indemnified.^[10] This means that taxpayers, not the officers themselves, are footing the bill for settlements and judgments; civilians are paying for police misconduct.^[11]

Various approaches to police reform have emerged due to the lack of police accountability after a police-involved killing. During the summer of 2020, many called to “defund the police,” which requires reinvesting the funds for policing into community resources.^[12] The rationale for the defund the police movement is that the historical ties American policing has to slavery, oppression, and violence against Black people cannot be reformed.^[13] Other reforms focus on improving police department policies and training practices.^[14] For example, some states have banned racial profiling by police and the use of military equipment by state police.^[15] Many call for yet more police departments to require officers to wear body cameras to increase transparency and accountability.^[16]

While these efforts to reform police are noble, they fall short of holding police officers accountable for their individual conduct. For example, studies have found that evidence from body camera footage is mostly used to prosecute civilians, not officers.^[17] Also, while state and local officials can implement changes to shape their police departments, which sometimes yields tremendous outcomes,^[18] these improvements are localized to a particular police department, county, or city.^[19] The repeated instances of police brutality and killings of unarmed Black people suggest that federal intervention is necessary to incentivize all states to take steps towards weeding out the bad apples in policing.

This Note proposes one way that Congress could use its spending powers to galvanize states to remove the most problematic police officers while also holding officers financially accountable for their actions. Part II of this Note will explore the two barriers to effective police accountability, qualified immunity and indemnification, to explain the current difficulties victims and their families face when seeking justice against individual police officers.^[20] Part III will discuss the key federal funding programs for state and local police departments to underscore the vast amount of aid these departments receive from the federal government.^[21] Part IV will highlight the constitutional principles upon which this proposal stands.^[22] Part V will explore the current status of federal police reform approaches.^[23] Part VI will outline Professor Deborah Ramirez’s scholarship on the use of professional liability insurance as a method of regulating police misconduct.^[24] Building upon Professor Ramirez’s work, Part VII will propose conditions Congress should place on the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) to regulate policing. The conditions would require states to deny indemnification to police officers who are sued for excessive use of force, abuse, or other intentional conduct and require all police officers to secure professional liability insurance as a criterion for continued employment. If states refuse to comply with these conditions, Congress should withhold 5% of their Byrne JAG funds. Part VII will also explore possible rebuttals and the reasons each counterargument fails to diminish the effectiveness of this solution.^[25]

II. Protecting Police from Accountability: Qualified Immunity & Indemnification

When an officer is caught on camera committing some egregious act, such as holding a man in a chokehold until he loses consciousness and later dies, one would likely assume that it would be easy to sue that officer. After all, the officer was caught on camera clearly violating the victim’s rights. As this Part will demonstrate, even with clear evidence of wrongdoing, successfully suing a police officer is difficult because of the measures protecting officers from accountability. Although citizens whose rights have been violated by police have a private right of action via 42 U.S.C. § 1983 to sue police officers, judicial doctrines have been created to protect police officers, which undercuts some of the goals of § 1983 lawsuits.^[26] Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .^[27]

Despite the language of § 1983, the officers are not paying the settlements or judgments awarded to the injured party or their families themselves.^[28] This raises the question: why not? This Section will explore two of the most prominent doctrines that answer this question and have notoriously allowed officers to go unpunished for their conduct: qualified immunity and indemnification. Before considering the proposed methods of increasing police accountability, it is important to first understand the current barriers preventing effective accountability.

Qualified immunity is a judicially created doctrine aimed at protecting officers from the “threat of financial liability” in civil suits when the officer violates a citizen’s constitutional right in the line of duty.^[29] The Supreme Court established this doctrine to prevent officers from being over-deterred because the Justices generally assumed that officers were paying for the settlements and judgments awarded against them in civil cases.^[30] In Harlow v. Fitzgerald, the Court reasoned that officers should be shielded “from undue interference with their duties and from potentially disabling threats of liability.”^[31] The possibility of an officer having to “choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does” was too great a risk to bear.^[32] Therefore, qualified immunity acts as a defense for police defendants whose conduct does not violate a “clearly established law.”^[33] One of the Court’s primary concerns is that officers be given prior notice that their actions are wrong before exposing them to liability.^[34] The problem is that the Court’s interpretations of “clearly established” are themselves hardly clear.^[35] The Court has not determined exactly how similar two cases must be for the law to be clearly established,^[36] which has resulted in qualified immunity being applied in a case simply because “no court had previously reviewed such conduct and found it to be unconstitutional.”^[37] Therefore, even in cases when officers have been “plainly incompetent” or even knowingly violated the law, they have still been protected by qualified immunity.^[38]

In the rare instance that qualified immunity does not apply, the officer’s personal assets are still protected when the officer’s employer indemnifies the settlement.^[39] Indemnification is defined as “compensating for loss or damage sustained.”^[40] For police officers, their employer will pay the settlement or judgment that the officer owes.^[41] Most municipal employers are paid by taxpayers, thus taxpayers are paying for these civil awards, not the officers themselves.^[42] Professor Joanna Schwartz collected data from eighty-one police departments in thirty-two states, including forty-four large departments and thirty-seven small and mid-sized departments, to study police indemnification.^[43] Schwartz found that officers in the forty-four largest jurisdictions were responsible for only 0.02% of the $730 million plaintiffs received.^[44] In the thirty-seven small and mid-sized departments, the officers did not pay anything towards awards.^[45] In fact, “[o]fficers did not contribute to settlements and judgments even when they were disciplined, terminated, or criminally prosecuted for their misconduct. And officers were not required to contribute to settlements and judgments even when applicable law prohibited indemnification.”^[46] Most officers are so far removed from the civil litigation arising from their actions that they are not aware of the details of the settlements or if the case settled at all.^[47] Since officers rarely ever pay for the judgments or settlements themselves, the accountability or punishment that civil litigation could offer is weakened.^[48]

III. Federal Funding Programs Benefitting State and Local Police Departments

In addition to uncovering the legal barriers that prevent officers from being held accountable, it is also crucial to understand how the government has enabled such misconduct through continued allocation of millions of unconditioned dollars to police departments. Usually, the more public concern there is about rising crime rates, the more money the federal government tends to give to support local and state police departments.^[49] Federal funding of police increased from 17% in 1991 to 22% in 2016, which has been the fastest rate of increase of any source of funding for police.^[50]

The 1994 Community Oriented Policing Services (COPS) program was established by the Violent Crime Control and Law Enforcement Act, signed by President Clinton, “to combat the rise in violent crime at the time.”^[51] According to the Department of Justice, since the inception of the COPS program, $14 billion has been invested “to add community policing officers to the nation’s streets, enhance crime fighting technology, support crime prevention initiatives, and provide training and technical assistance to help advance community policing.”^[52] In 2019, the last year for which there is data at the time of this writing, COPS granted state, local, and tribal law enforcement a total of $304 million.^[53] The COPS program does not specify any particular measures for police departments to implement or abide by to receive the funds.^[54] Although scholars have proposed ways for Congress to implement specific conditions on COPS funds,^[55] concrete guidelines have yet to be adopted. Instead, recipients are only required to use the funds for certain purposes, such as when hiring new officers, purchasing new technology, or implementing a community policing plan.^[56]

The Department of Justice also manages the Byrne JAG program, which was originally a part of a 1988 anti-drug act but later consolidated with another program in 2005.^[57] Byrne JAG funds state and local law enforcement and corrections programs.^[58] In the 2019 fiscal year, over $200 million was granted to law enforcement from the Byrne JAG program.^[59] During the 2020 fiscal year, every state in the United States was awarded Byrne JAG funds.^[60] Similar to COPS, Byrne JAG funds hardly have concrete conditions. Other than requiring states and territories to use a percentage of their funds towards complying with the National Incident-Based Reporting System (NIBRS) and other restrictions requiring compliance,^[61] recipients may use their funds towards any of the Byrne JAG areas of emphasis, including prosecutions, prevention, drug treatment and enforcement, technology initiatives, and victim and witness initiatives.^[62]

While COPS and Byrne JAG are the largest federal funding programs, other federal departments and agencies also allocate funds to local and state police. For example, the Department of Agriculture’s Rural Development Community Facility grant program provides small towns with funding to build police facilities and purchase new police cars.^[63] The Department of Defense also provides local law enforcement with military equipment.^[64]

There are two problems, however, with Byrne JAG, COPS, and the other federal funding programs. First, most of these programs have not been proven to reduce crime.^[65] In 2006, President George W. Bush’s Administration “sought to eliminate all Byrne JAG funding due to lack of demonstrable results.”^[66] If the programs are not achieving their broader purposes of reducing crime, then why would Congress continue allocating funds? Second, and most importantly for the purposes of this Note, recipients of these sizeable federal grants are not guided on how the funds should be used to achieve their intended purposes.^[67] The lack of specific guidelines suggests that the federal government may not have an appropriate means of measuring the success or failure of the programs police departments implement.^[68] Essentially, this leaves states free to use the funds as they please, and the federal government has no substantial pulse on whether any particular standards for the funds have been met. The Department of Homeland Security’s State Homeland Security Program (SHSP) does condition its grants on departments using 25% of the funds towards “law enforcement terrorism prevention activities,”^[69] but even that stipulation leaves much discretion to the states on how to best use those funds. At most, states are required to comply with certain reporting standards in order to receive the funds,^[70] but the grant programs do not regulate how states should be using their awards.^[71] If Congress implements specific conditions on its funds, it can ensure that local and state departments are actually implementing standards that will hold officers accountable.

IV. Congressional Authority to Regulate State Police Reform Efforts

For Congress to condition the federal funds state and local police departments receive, it must use one of its constitutional authorities. The Supreme Court’s Tenth Amendment precedents have made it clear that Congress cannot directly require the states to abide by a federal regulation.^[72] In New York v. United States, the Court held that Congress could not require the states to either “take title” of low-level radioactive waste or abide by a federal regulatory program.^[73] Later, in Printz v. United States, the Court held that Congress could “not compel the States to implement, by legislation or executive action, federal regulatory programs” when the federal government attempted to require state law enforcement officials to conduct background checks on handguns.^[74] Together, these cases clarified the scope of state sovereignty under the Tenth Amendment when the Court stated in Printz, “We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly.”^[75]

To avoid the Tenth Amendment, Congress could rely on its spending powers in Article I, Section 8 of the U.S. Constitution, which has been interpreted by the Supreme Court to allow Congress to influence the states’ adoption of federal legislation through conditional funding.^[76] In South Dakota v. Dole, the Supreme Court held that Congress could withhold 5% of federal highway funds from states that refused to adopt the twenty-one-year-old drinking age requirement.^[77] The Court established four restrictions that Congress must meet to constitutionally use its spending power.^[78] First, the regulation “must be in pursuit of ‘the general welfare.’”^[79] Second, Congress’s regulation must be “unambiguous” such that states are clear on the consequences of participating.^[80] Third, the federal conditions must be related to a “particular national project[] or program[].”^[81] Lastly, the conditions cannot violate other constitutional provisions.^[82] In Dole, the majority determined that Congress’s drinking age condition met the four restrictions.^[83] More importantly, the Court noted that withholding 5% of the federal funds was only “relatively mild encouragement to the States,” leaving the states as the ultimate decision-maker on whether to comply with the conditions.^[84]

In National Federation of Independent Business (NFIB) v. Sebelius, the Court invalidated a provision of the Affordable Care Act that conditioned Medicaid funds upon the state Medicaid programs covering all individuals under sixty-five-years old whose incomes were 133% below the federal poverty line.^[85] States risked losing all of their Medicaid funds if they failed to comply with the provision.^[86] Chief Justice Roberts called Congress’s condition “a gun to the head” because the loss of Medicaid funding would be “economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”^[87]

Therefore, Supreme Court jurisprudence suggests that if Congress wants to influence the states to adopt a federal plan, the spending clause is a plausible constitutional avenue, as long as the states have some choice in determining whether to comply. It is for this reason that the proposal in this Note is premised upon Congress using its spending clause powers to withhold 5% of federal Byrne JAG funds in accordance with the holding in Dole.

V. The Current Status of Federal Police Reform

In light of the uptick in headline-grabbing excessive force cases, each House of Congress considered legislative proposals to reform local and state policing.^[88] These legislative proposals have focused on improving data collection on use of force, investigations of police-involved deaths, training, diversity in departments, and more body cameras.^[89] Many of these proposals urge Congress to use its spending powers to invoke regulations.^[90]

In June 2020, two comprehensive bills were introduced in Congress to address police reform.^[91] The George Floyd Justice in Policing Act of 2020 (Justice in Policing Act, or the Act) aims “[t]o hold law enforcement accountable for misconduct in court, improve transparency through data collection, and reform police training and policies.”^[92] To accomplish this goal, the Act proposes amending the requisite mental state for a police conviction under 18 U.S.C. § 242 from “willfully” to “knowingly or recklessly.”^[93] Section 102 of the Justice in Policing Act denies qualified immunity as a defense for officers who acted in “good faith” or those who “believed, reasonably or otherwise, that his or her conduct was lawful at the time . . . .”^[94] The Act will also improve investigations into use of force incidents,^[95] withhold Byrne JAG or COPS funding if states do not ban chokeholds or no-knock warrants in federal drug cases,^[96] and prohibit local and state police departments from receiving military equipment.^[97] Section 201 of the Justice in Policing Act requires states to report data on individual police officers’ misconduct, which will be published in a national registry specifically dedicated to tracking use of force and racial profiling.^[98] The data that must be reported includes: (1) each complaint against officers, including credible complaints, complaints pending review, and unfounded or exonerated complaints; (2) discipline records; (3) termination records, including the reason for their termination; (4) certification records; and (5) records of lawsuits and their settlements.^[99] This data will be publicly available on the internet in a national database of police misconduct where visitors can search “for an individual law enforcement officer’s records of misconduct.”^[100] The Justice in Policing Act will not withhold any federal funds if states do not comply with the Act’s requirements.

The Just and Unifying Solutions to Invigorate Communities Everywhere Act of 2020 (JUSTICE Act) was introduced by Senate Republicans “[t]o improve and reform policing practices, accountability and transparency.”^[101] The JUSTICE Act plans to increase national data collection on use of force incidents and no-knock warrants by requiring state and local governments to report this data or lose a percentage of their federal funds.^[102] While the national data will be accessible by the public, the JUSTICE Act does not specify that the reports will include individual officers’ information.^[103] However, § 301 of the JUSTICE Act conditions federal funds on states “maintain[ing] a system for sharing disciplinary records of law enforcement officers” so that these records can be reviewed when an officer is hired.^[104] These records will only be accessible to those who are authorized to access the system, and states may receive a one-time grant to help them create this system.^[105] Furthermore, § 301 requires indemnifying officers against any claim pertaining to the retention or review of their records.^[106] While the JUSTICE Act is a step in the right direction, it still falls short of actually holding officers individually accountable for their misconduct by continuing to indemnify the damages arising out of such misconduct.

VI. Mandatory Professional Liability Insurance for Police Officers

One unique police reform that Congress has yet to consider is to require police officers to secure professional liability insurance as a criterion of employment. Some scholars have urged states to consider mandatory insurance as a behavioral deterrent that will hold officers personally accountable for their actions.^[107] In other areas of life, both personal and professional, insurance coverage acts as a regulator of conduct. Doctors, for example, usually carry medical malpractice insurance to cover malpractice claims against them.^[108] In seven states, doctors are required to have medical malpractice insurance,^[109] although doctors in many states still opt to secure professional liability insurance to protect them from the potential financial burdens of malpractice litigation.^[110] Generally, medical malpractice insurance is based on “broad risk classes,” so often the premiums remain fixed regardless of the outcomes or discipline of the doctor.^[111] Usually, the doctor’s experience is not a factor unless they work in a hospital where catastrophic injury insurance is available.^[112] Medical malpractice insurance premiums may also be limited by “dollar amount of coverage, whether a doctor works full or part time, and what procedures are done within the insured doctor’s specialty.”^[113] While it is crucial to understand that doctors are required, or generally opt, to have liability insurance—so police officers should too—Professor Ramirez notes that the insurance scheme of the medical field is not an effective model to implement in policing.^[114] Since the insurance structure in medicine does not consider prior claims against doctors to determine the premium (because the premium is fixed), Professor Ramirez concludes that it is not the high insurance premiums but rather other factors that incentivize doctors to ascribe to their profession’s standard of care.^[115]

Unlike doctors, lawyers are generally not required to have professional liability insurance.^[116] Oregon and Idaho are the only states that require attorneys to have professional liability insurance.^[117] Twenty-three other states require attorneys to notify their clients whether or not they have insurance.^[118] In Oregon, the state bar manages a pooled risk fund that lawyers pay into annually for coverage when needed, but the premiums for their insurance policies are unchanged by the attorney’s claim history.^[119] This scheme is similar to that of the medical field, which makes it an ineffective model for police reform because the goal is for fluctuating insurance premiums to act as both a behavioral deterrent and financial burden on the officers.

The insurance scheme for car insurance presents a more effective model that should be replicated in American policing to hold officers accountable.^[120] Car owners are required to get insurance to cover some liability against the driver if in an accident.^[121] When determining the premiums and costs of insurance policies, car insurance companies consider the driver’s driving history, including the number of accidents he has been in; speeding tickets or other citations; and the driver’s age and other factors, such as the miles driven, geography, and sometimes gender.^[122] The insurance company then calculates the potential risks of the driver and charges him accordingly—drivers with greater risks pay higher premiums and those with fewer risks pay lower premiums.^[123] Generally, when the premiums of bad drivers increase, studies have found that accidents have decreased because drivers become more cautious when faced with higher premiums.^[124] In her article Policing the Police, Professor Ramirez argues that police officers should be required to get liability insurance that is regulated much like car insurance.^[125] Just as insurers advocated for car manufacturers to install additional safety equipment in cars, Professor Ramirez believes that insurers will similarly be motivated to advocate for “safer techniques or equipment if they had to cover individual police officers that would make their product cheaper for departments who met certain standards, used safer techniques or did not use dangerous equipment.”^[126]

While other scholars, such as Professor John Rappaport, have urged private insurance companies to make demands of municipalities to regulate police behavior,^[127] Professor Ramirez argues that police officers should be required to get their own liability insurance.^[128] She proposes that the individual insurance coverage of officers should mirror car insurance in that officers’ misconduct histories are reported to the insurance companies and premiums are determined accordingly.^[129] Considering mandatory professional liability insurance as a method of police reform is necessary for two reasons. First, insurance companies are independent third parties that are experienced in assessing potential risk and are unaffiliated with the police unions and labor arbitrations.^[130] Currently, police officers are expected to police one another—by implementing reforms and holding one another accountable—but Professor Ramirez notes that it is difficult for them to effectively do this.^[131] Second, individual professional liability insurance “creates financial consequences for offending officers while still guaranteeing that victims receive compensation.”^[132]

VII. A Solution: Proposed Conditions for Recipients of Byrne JAG Funds

The following solution seeks to take Professor Ramirez’s proposal one step further by making specific recommendations for effective implementation. Via its spending powers, the federal government has the means to incentivize states to comply with a national standard of policing by withholding funds from local and state departments. This Part will outline the steps to implementing this plan and the potential counterarguments that may arise.

To receive Byrne JAG funds, the first condition should prohibit states from indemnifying officers in cases involving illegal use of force, abuse, or other intentional conduct.^[133] As discussed in Part II, in civil litigation, indemnification protects officers from any financial responsibility for their misconduct. If the goal of the conditions proposed in this part is to hold officers individually accountable for their misconduct, then officers cannot be indemnified in the most egregious cases of police brutality. Without the security of indemnification, Congress should also condition Byrne JAG funds on states by requiring all officers to have professional liability insurance to remain on the force.^[134] States, not Congress, regulate insurance, so if the states are “mildly encouraged” to change their police department policies, then unconstitutional federalism concerns are overcome.

Compliant states will send police misconduct data to insurance companies to determine each officer’s possible risk and the appropriate premium. The departments should pay the base premium for all of their officers, but any officer whose prior misconduct results in a higher than average premium will be expected to pay the difference in cost.^[135] Alternatively, officers whose premiums are lower than average should be paid the difference between their low premiums and the average premium as a reward for their behavior.^[136] If the insurance company finds that the officer is uninsurable because of their past conduct, the officer should be terminated.^[137] This model is necessary to make officers financially responsible for their own conduct and will reveal those officers who are the repeat offenders and should not be protecting and serving the public. The mandatory professional insurance will also deter officers’ poor behavior because, unlike other disciplinary measures that respond to behavior that already happened, the premiums of this insurance scheme will anticipate officers’ future behaviors.^[138] In turn, officers will be held financially responsible, via the higher premium cost, until they prove that they can improve their behavior. This will incentivize officers to either change their behavior or allow police departments to justifiably fire those officers for being so reckless that an insurance company will not cover their claims. Alternatively, those officers who do not have misconduct complaints will be encouraged to continue their acceptable behavior when they are rewarded with the difference in premiums.^[139]

Critics are concerned that mandatory professional liability insurance will impact officer engagement by causing officers to refuse to act during high-pressure or dangerous situations out of fear that it may affect their insurance.^[140] However, this concern will be a nonissue for this proposal because the insurance companies will only receive the reports of officers’ unjustified acts, not those that fall within the scope of their employment.^[141] The nature of police work requires officers to sometimes use force, thus those justified incidents will not be reported in the national registry nor to insurance companies to affect premiums.

Other critics may argue that mandatory insurance will create a moral hazard or officers will be more inclined to act recklessly since they know they are covered by insurance.^[142] Critics would likely note that research has found that such a moral hazard existed when drivers were required to get car insurance, in that drivers were more risky because of the car insurance coverage, so the same might be true in policing if insurance is required.^[143] However, Professor Ramirez points out that this moral hazard already exists because police officers know they will be indemnified by their department or municipality.^[144] If anything, mandatory liability insurance should actually reduce the moral hazard because the officers themselves will be financially responsible for their own behavior and will risk losing their jobs, which should minimize the moral hazard and risky behavior.^[145]

A. Rebuttals to the Possible Rebuttals

This proposal drastically alters the norm to fiercely protect police officers, and it is likely that the conditions proposed in this Note will be criticized. This Section explores some plausible criticisms to this proposal and explains how these rebuttals fall short of minimizing the effectiveness of the solution.

1. The Federal Government Is Unaware of State-Specific Needs to Adequately Reform Local Policing

The policies and practices that govern American policing are largely determined at the state and local levels, in part because these governmental entities are most aware of the specific needs of the communities served by the police department.^[146] To many, police reform and law enforcement are strictly state-based issues.^[147] Thus, critics will argue that the federal government’s “one size fits all approach” does not cater to the particular needs of local and state police departments.^[148] Professor Kami Chavis Simmons has argued that the federal government should establish baseline standards for police accountability but should give states the freedom to choose the particular measures best suited for the departmental and community needs.^[149] Professor Simmons prioritizes “state experimentation” to strike a balance between the need for federal oversight and the state’s knowledge of the “frailties of their local police departments.”^[150]

While such experimentation might be necessary for certain types of police reform, such as departmental hiring practices or acceptable community engagement, catering to state- or department-specific needs is not necessary for the proposal outlined here; the parameters of holding police officers personally liable for their unjustified conduct does not differ based on the needs of the state. This solution is applicable regardless of the socioeconomic or geographic status of a particular locale because it ultimately establishes a national standard for unacceptable police misconduct. Therefore, state and local governments are still free to experiment with other areas of police reform and law enforcement as they deem necessary; however, police departments will now be forbidden from allowing officers to get away with egregious acts unscathed. In turn, the state’s power to regulate policing will not be diminished as a result of implementing this plan.

2. The Federal Government Forcing Officers to Get Insurance Is Unconstitutional

While some critics might be concerned about whether this plan impedes on states’ rights, others might question, in the aftermath of the NFIB decision, the constitutionality of the mandatory professional liability component of this proposal. Similar to the issue in NFIB, some will likely argue that the federal government cannot require officers to get professional liability insurance. However, this proposal is markedly different from the individual mandate at issue in NFIB. In this proposal, Congress is not directly requiring police officers to secure insurance but encouraging the states to implement such a requirement using an authority the states already have. On their own, states can require citizens to secure various types of insurance.^[151] Therefore, this proposal simply incentivizes states to effectively use an authority they already have to achieve a particular outcome desired by the federal government. States are already considering requiring officers to carry liability insurance,^[152] thus this proposal helps to expedite the process by giving states a reason to act—or risk missing out on additional funding.

3. State Opt-Out Leading to No Change at All

Because the Tenth Amendment forbids the federal government from requiring the states to adopt these proposed conditions, this gives states the freedom to choose not to comply with the conditions and willingly forgo the 5% of funding they would ordinarily receive from Byrne JAG. In turn, critics may question what this solution will accomplish if states can just opt out, which will ultimately render the solution ineffective. Sure, states may choose to opt out because they have a constitutional right to do so, however, as the old saying goes, “money talks”^[153] and if there is anything that is likely to incentivize states to act, withholding a percentage of funds that the states rely on will. As discussed in Part III, states heavily rely on federal funds, thus the risk of losing 5% of an award could be detrimental to police departments.^[154] Moreover, the purpose of this proposal is to eventually achieve 100% compliance; thus, even if some states initially resist, it is always possible they may opt in later on. The goal is to begin effecting change in policing, but it would be unrealistic to expect that all states will immediately comply. If some states do refuse to ever comply, then it will skew the national data, but those states will face a consequence, via a reduction in funding, for doing so.

VIII. Conclusion

As the proposal in this Note suggests, it is beyond time to hold police officers accountable for their own misconduct. Since no one approach has been proven most effective to actually reform policing, our federal government should try holding officers individually accountable to effect changes in behaviors. In an ideal world, qualified immunity and indemnification would not exist, and officers who unjustifiably kill another person would always be criminally convicted, lose their jobs, and pay the entire judgment or settlement on their own. Unfortunately, our country has yet to achieve this ideal. Thus, this proposal seeks to bring us one step closer by filling in the gaps within some current federal legislation to better hold officers accountable for their wrongs.

Officers should be financially responsible for their behavior. Since most officers do not make enough money to pay the multimillion-dollar settlements and judgments that result from claims against them, which would result in victims not getting paid at all, an insurance scheme is the next best step. By requiring officers to secure insurance and to pay their own premiums, which will fluctuate based on the insured’s history, this will keep officers on the hook for their own wrongdoings. Police misconduct is not a one-department or one-state issue but a cancer that is infecting the entire nation, so it is time for a more serious treatment. Financial accountability will be a step in the right direction because the risk of losing money, whether via withheld funds from states or officers paying higher premiums, can influence decisions. In turn, this proposal will capitalize on our society’s love of money to weed out the bad apples in policing.

Charisma Ricksy Nguepdo