A large crowd march up Centre St in Manhattan during...

A large crowd march up Centre St in Manhattan during a Families March to City Hall Park in New York City on June 9, 2020. Credit: Newsday/J. Conrad Williams Jr.

“Defund the police” is a slogan with too much meaning. At its most constructive, it’s a rallying cry to rethink policing in America: how it’s done, who does it, how to allocate resources, and how to supply social services to the neediest among us. In this view, “defund the police” really means fund jobs training, fair housing, living wages, mental health and substance abuse services.

But slogans are terrible at nuance, and nothing in our Twitter hashtag-driven media rewards subtlety. And so I fear “defund the police” will soon (as happened in Minneapolis) default to its simplest and most radical meaning — “abolish the police.” If that happens, the winner will not be Black Lives Matter, and certainly not black lives. It will be vigilantes empowered by American gun laws to harass or even kill Black men like Ahmaud Arbery.

Policing is older than the police. The whole idea of professional law enforcement, paid for and responsive to the public, is a mid-19th century invention. Prior to that, policing was a community enterprise performed by private citizens. Upon suspicion of criminal activity, a private citizen raised a “hue and cry,” summoning the local citizenry to arm themselves and chase down the suspect. 

Predictably, this kind of decentralized law enforcement led to rampant abuse, including racist vigilantism and lynching. In the immediate post-Civil War period, observers remarked that black citizens labored under a sort of “permanent martial law” that had effectively deputized racial majorities to arrest racial minorities. Indeed, Klan members defended themselves against federal prosecution for terrorism during Reconstruction on the grounds that they were a “peace police,” a private organization for “self-defense.”

Early police departments were not much better. In 1866, local police joined racist mobs in terrorizing black citizens in Memphis, Norfolk, and New Orleans. The police departments of Southern and Northern cities during the 20th century were notoriously corrupt and racist, and discriminatory policing has persisted until today.

But concentrating law enforcement authority in the hands of a professional class had an advantage that the earlier, decentralized system did not. It concentrated accountability. Police chiefs could be fired. Local mayors could be cajoled into reform or removed from office. Law enforcement training could be made transparent. Police departments could be integrated. Abusive patterns and practices could be investigated and changed. Black men and women still suffered at the hands of police officers and departments, no doubt. But activists knew who to hold responsible.

Deregulating firearms, and broadening private power to use them, has undermined the accountability of policing. Today, every state in the Union allows some form of public carry. Half of the states allow a person to carry a gun with no training on how or when to use it. Many states empower individuals to “stand their ground” when necessary to protect themselves — and others. Self-appointed “neighborhood watchmen” arm themselves with deadly weapons to investigate suspects and thwart criminal activity as it’s occurring.

These individuals don’t have to abide by constitutional limitations on deadly force. They can’t be made to wear body cameras, don’t have to learn de-escalation techniques or undergo de-bias training, and don’t file reports when they use their weapons. They aren’t subject to investigation for engaging in an unconstitutional pattern or practice and they can’t be forced to enter into a consent decree when they abuse their power. They aren’t beholden to any politically responsive institution and they can’t be fired. 

There’s going to be policing, with or without the police. I’d much rather it was performed by the organizations over which I have some control as a voter and a citizen than the ones that I don’t. 

Darrell A. H. Miller is a professor of law at Duke University School of Law and co-director of its Center for Firearms Law. A scholar of the Second and Thirteenth Amendments, he writes and teaches in the areas of civil rights, constitutional law, civil procedure, state and local government law, and legal history. 

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