Insurers

BY KIMBERLY KINDY

2022-09-19T07:00:00.0000000Z

2022-09-19T07:00:00.0000000Z

St. Louis Post Dispatch

https://e-edition.stltoday.com/article/281509345042964

LOCAL

ST. ANN, Mo. — A patrol officer spotted a white minivan with an expired license plate, flipped on his lights and siren, and when the driver failed to stop, gave chase. The driver fled in rushhour traffic at speeds of up to 90 mph, as other officers joined in the pursuit. Ten miles later, the van slammed into a green Toyota Camry, leaving its 55-year-old driver, Brent Cox, permanently disabled. That 2017 police chase was at the time the latest in a long line of questionable vehicle pursuits by officers of the St. Ann Police Department. Eleven people had been injured in 19 crashes during high-speed pursuits over the two prior years. Social justice activists and reporters were scrutinizing the department, and Cox and others were suing. Undeterred, St. Ann police Chief Aaron Jimenez stood behind the high-octane pursuits and doubled down on the department’s decades-old motto: “St. Ann will chase you until the wheels fall off.” Then, an otherwise silent stakeholder stepped in. The St. Louis Area Insurance Trust risk pool — which provided liability coverage to the city of St. Ann and the police department — threatened to cancel coverage if the department didn’t impose restrictions on its use of police chases. City officials shopped around for alternative coverage but soon learned that costs would nearly double if they did not agree to their insurer’s demands. Jimenez’s attitude swiftly shifted: In 2019, 18 months after the chase that left Cox permanently disabled, the chief and his 48-member department agreed to ban high-speed pursuits for traffic infractions and minor, nonviolent crimes. “I didn’t really have a choice,” Jimenez said in an interview. “If I didn’t do it, the insurance rates were going to go way up. I was going to have to lose 10 officers to pay for it.” Where community activists, use-of-force victims and city officials have failed to persuade police departments to change dangerous and sometimes deadly policing practices, insurers are successfully dictating changes to tactics and policies, mostly at small to medium-size departments throughout the nation. The movement is driven by the increasingly large jury awards and settlements that cities and their insurers are paying in police use-offorce cases, especially since the 2020 deaths of Breonna Taylor and George Floyd. Those cases led to settlements of $12 million and $27 million, respectively. Insurance companies are passing the costs — and potential future costs — on to their law enforcement clients. Larger law enforcement agencies — like the Los Angeles Sheriff’s Department or the New York Police Department — handle it in different ways, often by creating a special fund to finance settlements or by paying those costs from the county’s or city’s general fund. This insulates them from external demands by insurers. Departments with a long history of large civil rights settlements have seen their insurance rates shoot up by 200% to 400% over the past three years, according to insurance industry and police experts. Even departments with few problems are experiencing rate increases of 30% to 100%. Now, insurers also are telling departments that they must change the way they police. In St. Ann, the impact has been profound. Since the retooling, which took effect in January 2019, the number of police pursuits annually has increased slightly, but crashes during pursuits have dropped: from 25 in 2018 with eight injuries to 10 in 2021 with three injuries, according to data provided by the department. So far this year, the department says, there have been three crashes with no injuries. The forced changes prompted Jimenez to equip his patrol cars with new technology to help nab motorists who try to outrun police. Sticky darts containing GPS trackers are shot from the front of patrol cars onto the backs of vehicles that speed away so officers can fall back and catch up with them later. While dozens of arrests have been made using the GPS technology, overall arrests in the city have fallen more than 30% since the change. Jimenez attributes that drop primarily to officers’ inability to chase motorists for minor infractions. “If you’re a proactive police department and you go out there and you search for a crime, your stats are higher because you’re fighting crime, you’re chasing more cars, you’re making more arrests,” he said. John Chasnoff, a local activist who fought for years to get St. Ann to retool its chase policy, said he is dismayed that the catalyst for change was money — not the injuries to people including Cox. “It’s an indictment on St. Ann police and their priorities that the voice of their insurers spoke louder than human lives,” Chasnoff said. The insurer’s demands for St. Ann police also affected departments beyond this blue-collar town of about 13,000 people. The city is just one of a dozen in the St. Louis risk pool, which has required each city to overhaul its police pursuit policy. There is no public data tracking how many police departments have made policy changes at the behest of their insurers. But the changes are widespread, affecting thousands of departments, according to interviews with more than two dozen insurance analysts, police reform experts and a review of hundreds of pages of insurance documents. In Vallejo, California, the city’s insurance risk pool threatened in 2017 to end coverage because of mounting police useof-force claims unless officials agreed to a higher deductible — a jump from $500,000 per claim to $2.5 million per claim. The city instead joined a high-risk insurance pool in California. Because of increased demand from troubled departments for its services, the California group has begun offering coverage nationwide. Vallejo officials did not respond to a request for comment. Entire states are having to adjust to insurers’ demands. In New Mexico, the largest risk pool — which provides coverage for one-third of the state’s police officers — hired an instructor last year to travel the state and retrain officers in de-escalation skills after private insurance rates climbed by more than 60%. The risk pool that insures 30 of the state’s 33 sheriff departments also saw coverage shrink while rates shot up 50% over the past three years because of police use-of-force claims. Across the country, allegations over police conduct are often settled by departments at taxpayers’ expense: A Washington Post investigation in March documented more than $3.2 billion spent over the past decade to resolve nearly 40,000 claims at 25 of the nation’s largest police and sheriff’s departments. Concerns about insuring troubled departments have been building for years. In 2009, a local insurance risk pool warned the 60-officer Maywood Police Department in California that it would lose its coverage if it did not enact more than a dozen changes focused on reducing violent encounters with the public. When police failed to do so, the risk pool pulled its coverage, and the department disbanded. “When the officers had to turn over their badges and radios for the final inspection the last day, it was the most emotional thing I’ve ever experienced in my law enforcement career,” said Frank Hauptmann, who was Maywood police chief at the time. “When we did our final salute, each officer had tears streaming down their faces.” For some police departments, insurers are refusing even to provide initial coverage unless they change their policies on a variety of matters including body cameras and chokeholds, according to industry experts. “I’ve been doing this for 40 years, and this represents a major shift,” said John Chino, a broker who secures insurance for cities and counties in six states. “They are asking lots of very detailed questions. ‘Do they use chokeholds? What does their de-escalation training look like?’ If they aren’t doing something on the list, they are required to get it if they want coverage.” Faster settlements These forced changes are taking place at police departments in neighboring cities and counties that work together to create insurance risk pools. Their collective buying power helps them secure lower rates. Members pay a “contribution” to the pool to provide a first layer of coverage, but most pools also purchase additional coverage on the private market. For police departments within these pools, the serious risks they may take can also drive up rates and deductibles for other members. Because of this, the pool may threaten to expel a city, county or township if its police department refuses to take steps to minimize risk. “The members help police themselves,” said Alexander T. Brown, a lawyer who specializes in insurance settlements for civil rights plaintiffs. “It’s a joint selfinsurance program, and they are motivated to keep the pools solvent because it’s the members’ own money.” Working with insurers, cities and counties often will write checks to settle claims of police misconduct to avoid the additional costs of fighting the allegations in court. The increased scrutiny of police has led them to settle cases more quickly to avoid jurors who also may now be more likely to second-guess officers and their tactics. “It’s been such a shift, and it’s happened so quickly,” said Izaak Schwaiger, an attorney who has settled dozens of civil rights lawsuits for plaintiffs against police. “The last time I went to a settlement conference, the city basically told me they were going to capitulate to what I demanded. That never used to happen before.” Chino, the insurance broker who operates in six states, said settlement negotiations that once took years now take months. And the payouts have skyrocketed. “The settlement for Breonna Taylor was $12 (million); that would have been $2 million just a few years ago,” he said. As a result, the number of insurers willing to provide coverage for police departments with a history of large settlements is shrinking. Ben Eggert, a lawyer who represents municipalities in claims and settlements, said that five or six years ago, brokers such as Chino orchestrated bidding wars between insurers for coverage. “There was tremendous competition,” he said. “The insurance broker could play the different insurance entities off one another.” Now that the power has shifted to the insurer, some have wondered whether this actually could threaten public safety. Steve Hebbe, the immediate-past president of the New Mexico Association of Chiefs of Police, said he believes it is a conflict of interest for insurers to be crafting department policies. Some of the riskiest calls to which patrol officers respond — domestic violence, threats of suicide or disorderly conduct — might be curtailed or eliminated by insurers, he said. “Their goal is to have no injuries or accidents, but that isn’t realistic, and that isn’t policing,” Hebbe said. “We send officers to do dangerous things that other people don’t want to do. Their profits are hurt by the risky things we do.” Insurance company ultimatum In Springfield, Oregon, complaints and settlements involving excessive force by police became so costly two years ago that the city’s insurance risk pool, Citycounty Insurance Services, was given oversight of overhauling the 82-member police department. The tipping point came on March 31, 2019, when Springfield officers shot and killed Stacy Kenny, an unarmed 33-year-old motorist with schizophrenia who had been pulled over because she was exhibiting “weird” behavior, records show. (The Post previously reported on Kenny’s death.) A 911 recording captured the encounter that began with Kenny begging an emergency operator to explain why police had stopped her. Kenny then can be heard screaming. Officers smashed the windows of her red Nissan, used a Taser on her twice, punched her in the face more than a dozen times and tried to pull her out of her car by her hair, police and court records show. But Kenny was anchored to the car by a locked seat belt. Her life ended when she tried to flee by driving away with one of the officers still inside the car. On the recording, there’s a burst of gunfire, then an officer says: “We are all OK. Bad guy down.” Kenny had legally changed her gender but presented as male, so officers believed she was a man. Her parents filed a wrongful death claim and sued the city. Barbara and Chris Kenny said that as they pressed for answers, they discovered serious deficiencies with the department’s process for reviewing violent police encounters. Officers involved in the fatal incident later testified in depositions that the department never conducted an internal investigation of the shooting. “A human being died that night and all they did was issue a one-page crappy memo. We asked ourselves, ‘How do we prevent this from happening to someone else in the future?’” Barbara Kenny said. “It felt like we had the opportunity to make a difference because what happened was so egregious.” The Kennys told city officials during settlement negotiations that any agreement would need to include a plan for systemic use-of-force reforms and anti-bias training that would help officers better deal with minorities and people with mental disabilities. They insisted that an external monitor — not a city employee — provide unbiased progress reports on the changes. As the city and Citycounty Insurance Services negotiated the settlement with the Kennys in summer 2020, city officials learned that the cost of insuring police in the community of 64,000 residents was about to spike. Misconduct and employment claims against Springfield police over the past five years totaled $8.5 million, of which the risk pool had paid at least $2 million, according to city records and court documents. The city’s deductible would jump from $100,000 to $250,000 for each claim filed against the police department “due to several large police and jail claims in recent years,” according to city records. The city’s insurance broker, Ron Cutter, looked elsewhere for coverage, but only Citycounty Insurance Services was willing to offer a policy, records show. Cutter told city Risk Manager Ted Mugleston in an email that the city did not “have a ton of leverage to negotiate” a set of changes the risk pool was requiring for contract renewal, and Cutter hoped that did not give the police chief “any heartburn.” Mugleston declined interview requests. Cutter did not respond to requests for comment. Weeks later, one of Springfield’s police officers was recorded on video laughing about a teenage protester being injured during a protest march, on July 29, 2020, according to a lawsuit filed by Civil Liberties Defense Center, a legal organization that defends activists in civil rights cases. The lawsuit alleges that police caused the injury. “We finally did something!” officer Daniel Casarez can be heard saying on the video recording, as he and another officer laugh in the background at the protest, organized by Black Unity, a local police abolition group. “That stupid 12-year-old (inaudible) took it right in the (expletive) face ... at least we (expletive) took a stand, just once.” Later that night, counterprotesters swarmed in and hit the Black Unity protesters with their fists, a flashlight and a flagpole, city records and video show. Police failed to intervene that night, according to an independent review of the episode commissioned by the city. “There has long been a cowboy culture in the department,” said Lauren Regan, an attorney with the Civil Liberties Defense Center that filed the lawsuit on behalf of Black Unity protesters. The lawsuit, which named former police chief Richard L. Lewis and 25 officers including Casarez, seeks numerous changes at the department, including establishment of a new hiring committee that will include people of color and civilians from the community. Casarez declined to comment, and his attorneys did not respond to calls seeking comment. Police Chief Andrew Shearer, who took over the department last year, said he could not comment on pending litigation. In September 2020, with the approval of the Springfield City Council and the city manager, the insurance risk pool agreed to pay the Kennys $4.55 million — the largest police settlement in the history of Oregon. The city also met the family’s other demands: In addition to de-escalation training and a new process for reviewing use-of-force incidents, the city agreed to create an awards program that recognizes officers who peacefully resolve potentially perilous encounters with civilians. The department also agreed to adopt a policy stating that officers “value and preserve human life” and “strive to use the minimum force necessary to accomplish their lawful objectives.” The city appointed its insurer to monitor the changes, something the Kennys’ attorney, Dave Park, said he had never seen in his 40 years of litigating police civil rights cases. To the Kennys, it made perfect sense. “I couldn’t understand why the insurance company wasn’t mad as hell at the department,” said Barbara Kenny. “They were the ones who had to keep paying out. They seemed like a natural partner for us on reforms. If we made the department better, don’t you think the costs would go down?” In June 2021, when Springfield officials took steps to renew the police department’s insurance coverage, Citycounty Insurance Services gave them an ultimatum. “Should the City see police and jail claims with the same frequency and severity as experience (sic) during the last 10 years, we will either be dropped from coverage, or general liability claim costs are anticipated to increase an average $300,000 annually for the foreseeable future,” Mugleston wrote in a memo to city council members on June 7, 2021. This summer, however, city council members were told that there would be no additional increase in Springfield’s deductibles for fiscal 2022-2023, records show. Citycounty Insurance Services declined to be interviewed. In a statement, Dave Nelson, a deputy director with the risk pool, credited city officials, including Shearer, with “the hard work necessary to change the culture in the police department. The change in leadership has made a significant difference.” Since assuming oversight of the overhauls, the insurance risk pool has required dozens of additional changes, including an updated cadet screening process to preemptively root out rogue officers. But accusations of misconduct persist. Springfield Officer Brian Bragg, who is named in the Black Unity lawsuit, was accused in June of using excessive force. At an abortion rights protest in a neighboring town, Bragg allegedly smashed a baton into a female protester’s sternum. Another officer was recorded on video telling her to leave to avoid being struck again. Shearer said he has ordered an internal affairs investigation of the matter. Bragg and his lawyer did not return calls seeking comment. “There’s definitely a toxic warrior culture that has permeated (Springfield Police Department) and been a driving factor there,” said Brittney de Alicante, a member of the Springfield Police Advisory Committee, which acts as a liaison between the community and the department. “When it’s that deeply embedded into your culture, it’s a really hard cycle to break.” Shearer said there has been measurable improvement. A recent report from the chief to the city council shows that from 2020 to 2021, the number of useof-force incidents dropped from 229 to 190. Shearer acknowledges, however, that more needs to done, and the insurance risk pool continues to identify problems that he said he is working to address. The more active role of insurers, he said, has also changed the nature of the job for police chiefs. “Frankly, there’s a hammer there because it’s costing the city a lot of money,” Shearer said in an interview. “Most police chiefs, when they take their job, they really think on a much wider scale: ‘How can I create a community that is safe and reduce crime rates and build trust in our community?’ But to have the actual dollar figure of the insurance rates at the front of their mind? That’s a relatively new problem.” ‘This will wreak havoc’ At dusk one day last summer, St. Ann Detective Daniel Rice pulled his car into a gravelly median along Interstate 70, which cuts through the city and is an ideal spot for catching speeding motorists. Rice said some drivers think the cover of night will allow them to freely rocket down the highway with fraudulent plates and outstanding warrants. Because of the changes imposed by insurers, catching them now is harder, he said, something that he and other St. Ann officers resent. “An insurance company should have nothing to do with a police department’s policy,” Rice said, adding that insurance representatives should spend time in the field with patrol officers. “You’re not out here, and you don’t know what’s really going on.” In interviews, several officers said that on average, two motorists a week now successfully flee when officers try to pull them over. Word is out that St. Ann police don’t chase people as they used to. “It builds their confidence, so they keep doing it over and over,” Officer Benjamin Freet said of drivers who refuse to stop. How much the city has been forced to pay out over police pursuits since the policy revamp is unclear. St. Ann City Manager Matt Conley said he cannot determine the full cost because city officials neither handle nor track settlements. “I don’t keep any of the paperwork; the risk pool does, “he said in an interview. Because St. Louis Area Insurance Trust risk pool is a private entity, it does not have to disclose settlement costs, although its funding comes from taxpayers and its board of directors comprises city managers, including Conley. Officials with the pool did not respond to calls and emails seeking comment. “It may not be nefarious, but they are concealing a lot of information that should be public,” said John Rappaport, a law professor at the University of Chicago who has studied insurance risk pools. Despite the drop in the number of crashes, Chief Jimenez said he still believes that police chases, even for minor traffic infractions, are justified. If people are fleeing from police for expired license tags, he said they usually have other legal problems — outstanding warrants, unregistered weapons or illegal drugs. He thinks the mere fear of a chase by St. Ann police in the past kept criminals away. “I’ve not been advertising that our policy has changed,” Jimenez said. “I have to follow the times and listen to the insurance company, (but) I think this will wreak havoc on our communities. I still wish we could use it.” Since the overhaul, arrests have declined from about 900 to 600 annually. Major crimes reported have remained unchanged, records show. Jimenez said he thinks that the pandemic has had an impact on the arrest numbers but that the drop in arrests is largely driven by the policy change. “It’s because we’re not being able to chase them,” Jimenez said. “When someone is fleeing, 90 percent of the time it isn’t because of a traffic violation. When we stop them, we find guns, drugs, outstanding warrants.” In St. Ann, the vehicle tracking system — called “StarChase” — allows officers to tag and track fleeing suspects without engaging in high-speed chases. Officers fall back and, using the GPS coordinates, later catch up with suspects when they park. So far, St. Ann police officials say 58 arrests have been made using the technology, including one in June following a “road rage” incident. Officers let the suspect flee and later tracked her to a ditch where she had crashed her SUV, records show. The technology is not perfect — officers have to be close enough to hit the target, and weather and the surface of the fleeing vehicle can inhibit the dart’s ability to attach. But Freet and other officers say that overall, they like the technology. “You should see the look on their face when we pull up,” Freet said of those who flee the police and are tracked down. “They think they’ve outrun us.” The revamp forced one other change in St. Ann: the motto. Police no longer claim to chase “until the wheels fall off,” Jimenez said. “One of the things I’ve had to come to terms with is, since we changed our pursuits, our accidents are way down. We are doing a better job of keeping the public and our officers safe.” Cox, the injured motorist whose case helped trigger the changes in St. Ann, said the entire ordeal with police felt like something from a bygone era. The high-speed pursuit that left him drifting in and out of a coma for about a week started when police began chasing a motorist with an expired license plate — one that was overdue by only three weeks. “It was like something from the ’20s and ’30s where you chase the bad guy in the car through town,” said Cox, who is now 60 and settled with the city for an undisclosed amount this year. Cox said that because of the crash he was unable to continue working as an auto mechanic. He said he has metal plates in his back and left ankle and has permanent nerve damage, chronic problems with his digestive tract and persistent back pain. “I’m lucky to be alive.”

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