Jayden Johnson

Senior Seminar

Dr. Josefson

November 15, 2021

Defund the Police from a Theoretical Perspective

Since 2015, the interaction between unarmed African Americans and police officers has

resulted in the death of 135 people (Thompson, 2021). The advent of social media has made

these interactions more public, subsequently leading to political protests erupting across the

United States. During 2020, with the murders of both George Floyd and Breonna Taylor, there

was an explosion of Black Lives Matter protest across the country. At the center of these protest

was the slogan “Defund the police.” This demand was spread across the country on social media,

and soon this demand was being echoed by millions of people. Lawyers and legal scholars have

introduced varying definitions of this demand. In this paper, there will be four schools of thought

introduced as it relates to defund the police. There are many proponents of the abolitionist

perspective when it comes to police. First, this paper will examine Amna Akbar’s argument

pertaining to an abolitionist approach of the police. The only way to decrease police violence is

to abolish the police (Akbar, 2020). Second, Barry Friedman’s theory of disaggregating the

policing function will be examined. In an investigation of the duties police officers perform on a

day-to-day basis, Friedman explains that there either needs to be a change in policing, or an

attempt to diminish the dominance police have in addressing certain problems they face

(Friedman, 2021). This would involve incorporating other agencies of government to respond to

those problems. Lastly, Jocelyn Simonson develops the idea of examining police reform through

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a power lens (Simonson, 2021). Essentially this idea focuses on shifting power to groups that

have been subjected to violent police practices and have been denied political power. Anthony

O’Rourke introduces the idea of disbanding police forces. To do this, localities would need to

modify the legal structure of both their state and local government, which involves eliminating

the institutional agreements that operate to thwart different reform strategies. (O’Rourke, 2021).

This theory is significant because it creates the means that would allow these three theories to be

successful. O’Rourke introduces the tool that could be the key to successfully implementing any

reform strategy that deals with police.

This paper will explore all four of these theories behind defund the police by highlighting

the significant features within them. In doing this, this paper will introduce and explore the

implication that these theories fail to address. Defund the police and the many theories associated

with it fail to address the legal aspect of qualified immunity and how it significantly shields

officers from being prosecuted in the court of law for misconduct. The court in its interpretation

and application of this doctrine has been inconsistent throughout the years resulting in continuing

misconduct and has broadened the scope of protections for officers (Nameth, 2019). This broad

scope of protection essentially allows for officers to create any defense in their actions, which

leads to them either being acquitted of charges or not having charges brought up against them. In

an analysis of the four theoretical perspectives presented, Disbanding the state or Hyper-

Federalism holds the promise in addressing the problems with qualified immunity.

Abolish Police

Since the development of events in Ferguson and Baltimore, there has been a significant

turn to the idea of abolishing the police among many politically left social movements. The

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abolitionist movements brought attention to the state and its investment in police. In this idea,

police have received substantial investment while resources supporting housing, healthcare, and

school for poor families within black and brown communities have been redistributed elsewhere

(Akbar, 2020). In taking a closer look at this investment, Akbar explains that arguments

regarding a larger investment into police says there must be more democracy, more bureaucracy,

more procedural justice and training, and more tools and technology. The “more democracy”

argument pushes for more democracy within policing, and in doing this there will be more

community participation in law enforcement. Many scholars hold the view that community

policing is a step toward reforming policing, but this argument, from the abolitionist perspective,

does not consider the non-democratic nature of police and prisons. For police, several factors

affect why the United States has a greater incarceration rate compared to any other country.

Some of these factors include overly broad criminal laws, aggressive prosecution of low-level

crime, and pressure on elected officials and prosecutors to be tough on crime (Jain, 2015). Police

are also given the discretion to make arrest, due to a low standard of probable cause. Prisons and

incarceration also reinforce this anti-democratic nature because it removes individuals from

public life and strips them of their ability to participate in civil and social life.

The “more bureaucracy” argument articulates that politics, and the public are two

concepts that result in a punitive irrationality. Experts and the data they collect represent

rationality that will epitomize the public’s true best interest (Akbar, 2020). The problem with this

argument is that the powerful elite has participated in creating the conduits for police violence

and incarceration through bureaucracy and democracy. Data collected by experts represented

rationality that was illustrated when examining the methods used by the United States

Sentencing Commission. Its examination of federal sentencing policy and the creation of the

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Sentencing Reform Act of 1984 created the mandatory minimum guidelines particularly for drug

offenses. While the Commission claimed it was basing its guidelines on date and previous

practice, the methodology used almost instantaneously made prison incarceration rates and

prison populations higher (Adelman, 2013).

Thirdly, the “more procedural justice” argument is based on the legitimacy and authority

police have. Citizens will only obey police they perceive as legitimate, and people perceive

police as legitimate when they are treated with dignity and neutrality. Supporters of this

argument believe that when police represent or have a perception of fairness, public compliance

will be higher. When people make evaluations of the police when they encounter one another,

fair treatment matters more than their effectiveness of reducing crime (Meares, 2017). While this

idea is well and good, citizens within poor black and brown communities often are influenced by

their own previous encounters with law enforcement. Proponents of procedural justice training

do not consider that police training reinforces the idea that police must go into every interaction

like it’s a life-or-death encounter. Proponents of the of the procedural justice model also believe

in the idea that police must form a sense of solidarity and cohesion with civilians, but this model

does not provide an answer to how police can form that cohesion in poor black and brown

communities where police have the least amount of trust and legitimacy (Akbar, 2020).

Lastly, the “more tools and technology” reinforces the idea that police would do a better

job if they had more resources. This argument is severely debunked when looking at different

police technologies and examining its effects on interactions between police and civilians. In

observing the effectiveness of body cameras, a study conducted from the Center for Evidence-

Based Crime Policy at George Mason University revealed that the cameras had not had a

significant effect on police behavior or citizens opinion of police (Lockhart, 2019). Another tool

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to consider is CompStat which was a data analysis and management tool used by the NYPD.

Supporters of this program believed this program would effectively allow police to track crime

and deploy officers in a timely manner. In an analysis of its effects, it was found that it gave

police incentive to increase the rate police conducted a stop and frisk (Herzing, 2013). This

technology enlarged and reproduced the police power which was fueled by racism and bias.

This abolitionist demand of police aims to divest, dismantle, and delegitimized law

enforcement. At its core is attempting to critique the entire policing institution as a model that

maintains its hierarchical power through violence. Violence has been an integral part of policing

since its inception. Increasing resources like weaponry constantly being given to police has

created the idea that they are trained warriors (Balko, 2017). Policing has the job of maintaining

the social order and often this is done with violence. While divesting, dismantling, and

delegitimizing law enforcement and the hierarchical dominance it asserts, abolitionist theory also

addresses the culture of violence that exists with everyone. This culture of violence is so well

integrated into public thought and opinion resulting in most people are afraid or doubt when

abolitionist ideals are presented to Americans (Afnan, 2021). These reactions to these ideal

further reinforce that social violence and violent policing are essential. The abolitionist demand

has the goal of founding or creating a new society in which police and other instruments that

maintain its hegemonic power through violence have no role.

Within this abolitionist ideal, there is a belief that social order is based in social power,

and that power is deliberated through negotiation and agreement. This hierarchical authority or

hegemony was theorized by Antonio Gramsci. According to Gramsci, people in power can

manipulate the culture of the lower classes by manipulating them into thinking that authority

maintained through violence is natural, and essential to their own wellbeing (Bates, 1975).

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Because the lower classes believe this way of life is essential, both parties mutually agree on

social order being bases in social power, which results in this model of hierarchical constituted

authority that’s maintained through violence.

This demand is also complemented with the requirement of investing into certain social

and economic provisions like health care, education, and housing. The Black Lives Matter

movement and demand of “defund the police,” do their part in fostering a belief that civilians

need to begin questioning the role of police and different investments being made into them.

Both this movement and demands call for civilians to examine the failures of police. These

abolitionist demands also calls for individuals to contemplate new ways in which the state can be

held accountable without having to rely on police or the criminal justice system. Akbar cites the

use of a reparations campaign as a means of holding the state accountable. In doing this she

mentions the events involving Jon Burge and the Chicago City Council. Jon Burge, a former

member of the Chicago police department engaged in the torture of 118 black citizens in

Chicago (Baker, 2019). After his conviction many years later, the families of the victims

received a reparations package for the torture and grief the victims and families suffered. The

central idea in utilizing reparations as a means of accountability is to destabilize the idea that

criminal prosecution of police as the only means in achieve justice and accountability.

Disaggregating Police

While many scholars examine the harms created by policing, Barry Friedman instead

explores policing at its core. He emphasizes that there must be a different approach to examining

the harms of policing. Through an investigation of the daily duties police are called on to

perform, questions need to be raised about whether the police are the best institution to be called

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in response to society’s various daily needs. If police are not the correct answer in addressing

certain situations, then who or what entity should be tasked with addressing that problem?

Historically, the police have been tasked with the unique ability to use force and prosecution to

maintain a certain level of peace security within the country. Acknowledging that force and

prosecution are an unusual match for addressing daily problems that arise throughout society,

Friedman implores that disaggregating the policing function is the solution.

In trying to understand how to effectively disaggregate the police, there must be some

evaluation into what cops are doing over the course of a normal workday. What are the common

problems and situations they encounter and what training or tools are needed to efficiently

handle that task? Barry Friedman’s belief is that police’s main function should be to help achieve

public safety, but there is a mismatch between how cops are constructed, and what we ask them

to do (Friedman, 2021). Throughout America’s history, cops have been portrayed as

crimefighters. President Clinton after signing the Violent Crime Control and Law Enforcement

Act of 1994 said, “…let us roll up our sleeves to roll back this awful tide of violence and reduce

crime in our country” (Clinton, 1994). With little surprise, these consistent remarks made by

government personnel has created the idea that cops are crimefighters. These remarks of police

acting as crimefighters reinforces the idea that police are to apply force and prosecution.

Along with this constructed idea of cops being crimefighters, police are recruited, trained,

and equipped to utilize force and collect evidence for prosecutors, which is part of the problem

with police today. Materials used to recruit new police officers often involve police driving fast

cars and discharging their weapons in crimefighting situations, and this is usually done to exhibit

the characteristics of going to war against crime within that community. The training of these

officers is yet another mechanism that contributes to the use of force and law. After going

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through standard police academy training and before new cadets can go off on their own on

certain patrols, many officers must go through some sort of field training depending on the rules

within a state. During these field training exercises, officers in charge of the training often tell

recruits to “forget everything you learned in the academy.” Officer Sean Lojacono was fired after

his department discovered that he was performing invasive searches that violated department

policy. In his defense he claimed that veteran officers told him to forget the training he received

at the academy (Flack, 2019). This type of training requires officers to learn on the job, which

leads them to more likely use force. In a study of several Nashville police departments, Friedman

was able to find that officers get most of their training on how to use force and engage in and

with law enforcement, while the least amount of training is dedicated to things like mediation,

social work, and non-combative situations (Friedman, 2021).

The problem with this constructed idea of cops is that they are not primarily

crimefighters. Many scholars have examined the question of whether cops really were the

crimefighters they claimed to be, and the evidence showed that they in fact were not. Media

portrayals of police fuel the idea of police being crimefighters. Shows like “Cops” often

overrepresents the frequency of violent crime while nonviolent or property crimes are severely

underrepresented (Oliver, 1994). According to a study conducted by Doris Graber, certain news

outlets reported that over 35% of those news stories dealt with crimes like murder and robbery,

but police statistics illustrated that murder and robbery only accounted for 6% of the total crimes

committed in that specific area (Graber, 1980). In a study of three different police departments

based in New Orleans, Montgomery County, and Sacramento, officers spent around 4% of their

total time dealing with serious violent crimes (Asher & Horwitz, 2020). In making the case for

disaggregating police, it is imperative there is continued examination into how police spend their

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time, especially when media creates an idea that police are standing on the frontline in the war

against crime.

While police see themselves largely as crimefighters, the public sees them as first

responders. People call police for many problems that don’t require them to use force or law.

Vehicle assistance and noise complaints are two extremely common occurrences that require

some use of a different skill other than force. Many situations call for police to be mediators.

Domestic disputes are situations that are customary to an officer’s workday, and when this

mediation fails, the nature of the interaction can develop into an instance where enforcement is

required. This idea of cops as mediators also plays a role in the concept of police needing to be a

“social worker” (Friedman, 2021). Police in many cases respond to calls that require them to deal

with issues that are usually handled by social workers, especially when encountering mentally ill

persons. Richard Lamb explains that due to the frequency of police encounters with the mentally

ill, law enforcement has become the “street corner psychiatrist” (Lamb, 2002). In any given

interaction with the mentally ill, they are responsible for recognizing the need for treatment or

determining that the individual’s criminal activity is the primary concern which would result in

his or her arrest.

There are two key points to take away from these public perceptions of police. First, the

perception of police held by the public is tremendously different when compared to the

perception police hold of themselves. Second, due to the police’s unique use of force and

prosecution, they are not adequately prepared to handle situations that are not crime fighting.

This fact begs the question: should there be alternate modes of response to certain situations that

do not require law enforcement? As it relates to defund the police, Friedman’s theory of

disaggregating the police seems to accentuate that there needs to be some alternative response to

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certain situations that police would normally respond to, but the only way to do this is through an

evaluation of the police and the duties they are responsible completing. Many of the calls police

receive in present circumstances that they are not correctly recruited, trained, and equipped to

handle. Instead, these are really health and social welfare problems which need to be handled

through some form of specialized response team.

Shifting Power

Jocelyn Simonson presents the theory of examining police reform through a power lens.

This power lens is important because within it there is the objective of shifting power to the

populations that suffer the most at the hands of police. The power lens should be incorporated

into all attempts of police reform because it shifts power to policed populations which can be

reparative, it can promote anti-subordination, and the power lens facilitates contestatory

democracy (Simonson, 2021). First, the power lens can have a reparative effect because it

suggests that power needs to be shifted to those people or groups that have been affected the

most by policing and criminal law throughout history. Second, promoting anti-subordination

entails a responsibility of the state to not create or engage with policy or practice that reinforces

the idea that historically oppressed groups are subordinate. Lastly, the power lens creates an

adequate landscape for contestatory democracy because it unearths a concept within democratic

policing which involves “the facilitation of countervailing power for those subject to the

domination of the state” (Simonson, 2021). This lens is different from other theories because it

emphasizes the communities that have been harmed the most by police practice. The power lens

critically analyzes how experts deny agency to poor black and brown people in this country. It is

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important to note that Simonson acknowledges that this can be a complementary lens to another

reform strategy.

Examining police reform through a power lens is seen as reparative because power

shifting returns to the idea that the historical wrongs committed against black and brown

communities must be considered when creating reform strategies. Throughout history, poor

black and brown people have not had substantial ownership of politics and the law because they

were the groups that were oppressed by both politics and law. Police reform is reparative because

it shifts of political power downward. Among many different reparation theories, a common

theme is that they are applicable in instances where there is a need for repair for crimes

committed against a group, and reparations are appropriate when that past harm causes inequality

in the present (Brophy, 2006).

Scholars like Charles Ogletree in the development of their own reparation theory focus

on the past to account for the present, focus on the present to uncover continued race-based

discrimination, account for past harms that have not been compensated, and challenge society to

respond to uncompensated harms (Ogletree, 2003). Between both theories and other theories

introduced by different scholars, there is always an evaluation of harms committed in the past.

This evaluation of the past is then accessed by measuring the effect it has had on individuals in

the present. Power shifting police reform can be a form of reparation because it involves the

groups that have been subjected to policing that has denied “race-class subjugated communities”

the benefits of living within a democratic society. Further examination into the policing practices

employed on these specific communities throughout history has resulted in them being policed

and governed through coercion, control, violence, repression, and predation (Soss, 2017). This

kind of treatment employed on predominantly black and brown communities have allowed many

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individuals to experience a decline in the power they held. In its essence, these reparative

theories call for the empowerment of people in identifying injustices they have experienced

throughout history, and then mobilizing themselves within organizations that would effectively

fight for compensation for past harms.

Shifting power in police reform promotes an anti-subordination view of lawmaking and

legal change. Anti-subordination theorist believe that equal citizenship guarantees will never be

present if there are conditions that promote social stratification. These theorists argue that law

should reform institutions that enforce the secondary social status of historically oppressed

groups (Balkin, 2003). Anti-subordination theory focuses on the role of society and its part in

creating subordination and examines the way it effects certain groups of people (Colker, 1986).

In an analysis of the Equal Protections Clause, Abigail Nurse examined the U.S. Supreme

Court’s movement away from following an anti-subordination principle to an anti-classification

approach. This movement away from the anti-subordination principle has allowed for the equal

protection doctrine to shift from its original goal which was ensuring equal treatment under laws

(Nurse, 2014).

Many scholars apply this anti-subordination theory to constitutional interpretation, but

Simonson explains that this theory, when applied to the policing, exposes the necessity to

structure police in a way that diminishes the harms from police that black and brown people

endure every day. While many scholars highlight police overenforcement as a form of

subordination, underenforcement is also a product of this. In underenforced areas the police

withhold its resources from groups they determine to be undeserving of their protection.

Tuerkheimer explains that this dynamic is evidentiary in an examination of black-on-black

crime, hate crimes, and police violence against citizens (Tuerkheimer, 2016). This point is

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extremely compelling in contrast to the abolitionist perspective. Abolitionist theory often

highlights overenforcement as a key factor in police asserting its hierarchical authority over

certain communities, but in contrast the power lens sheds light on underenforcement and its role

in subordinating black and brown communities. While much literature focusses on

disproportionality of overenforcement within black and brown communities, the power lens

presents a compelling argument into how underenforcement equally oppresses and restrains

black and brown communities from having power (Natapoff, 2006). Shifting power to those who

endure these different forms of subordination would promote democracy and equality because it

would allow them to control the policymakers that reinforce these subordinating systems.

Lastly, police reform through a power lens is maintained by the theory of contestatory

democracy. The concept of contestatory democracy illustrates that a healthy state will be able to

recognize certain mechanisms within it that subordinate some specific group of people. Once the

state has acknowledged this problem, it will employ certain institutions or structures that resist or

contest that form of power (Simonson, 2021). A contestatory democracy or regime gives citizens

the ability to contest certain public decisions on the basis that those decisions did not account for

the particular interest of the relevant group, which would result in those decisions being

discriminatory (Staszewski, 2013). This contestatory democracy allows for all groups across

different demographics to be hearkened to, while also giving them some form of indirect

editorial power over certain decisions made (Pettit, 1999). The concept of contestatory

democracy is necessary for legitimate government. Utilizing this lens to examine police reform

allows for the contestation of common reform strategies like community policing. The prevailing

ideas on how to reform police can finally be challenged, so that new concepts and ideas can be

created. The goal of our existing political institutions is to develop a process in which the public

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can participate in official decision-making by challenging the very decisions that are made

(Winter, 2015). While the concept of contestation is significant, contestation from populations

that have been degraded and sullied is equally important. Chantal Mouffe called this concept of

contestation, “agonistic politics.” Mouffe viewed politics as two adversaries fighting against one

another known as the “agonistic struggle” (Mouffe, 2014, 20). Within this model, two sides can

engage in political action within the confines of the current political structure, and from there

determine if there needs to be any change in the institutions that exists. In applying the idea of

contestation to police reform, agonistic politics embraces the participation of those communities

that disagree with prevailing policies in their local police departments. Encouraging contestation

entails individuals holding their dominant ideas of police policy and practice and relinquishing

some of their tightly guarded ideological grounds to people that have long been imperiled by

their dominance.

Between the power lens, abolitionist perspective, and disaggregation there are some

significant similarities and differences that are captivating. As mentioned before, the power lens

main objective is to shift power to those populations who have suffered the most to the hands of

police. These populations have continuously been oppressed and subordinated by the institutions

of politics and law, so the only way to address this fact is the examine ways in which that power

can be given to those subordinated communities. In a comparison to the abolitionist perspective,

the power lens is similar in that there is a goal to empower those communities that have been

subject to increase harms by police, but in contrast it highlights that underenforcement equally

contributes to black and brown communities being treated as inferior. By contrast, abolitionist

theory focuses on the substantial role policing plays in our lives and proposes the idea of

reducing that role. Police through overenforcement can maintain social control and hegemony

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through violence (Herzing, 2015). Disaggregation presents a distinctive argument compared to

the power lens and abolition because it involves the dissection of the duty’s cops are called to do

daily. In doing this, questions need to be raised as to what the cops are doing here.

Disband the State

In response to the killing of George Floyd and other unarmed black Americans at the

hands of police, and the growing demand of defunding the police, Anthony O’Rourke introduced

the idea of disbanding police forces as a reform strategy. Within the current landscape, police

departments are protected from oversight within the democratic process. Instead, O’Rourke

suggest that if localities can somehow modify state and local government, effectively resulting in

localities disbanding, reform of police departments could be a feasible outcome. In trying to

access the validity and feasibility of this theory, O’Rourke first establishes the reasoning for why

police departments should be disbanded by exploring the pathologies of policing and structural

obstacles of police reform. Next, this article examined the pollical and legal complications of

restructuring police departments through a means of disbanding. Lastly, creates two possible

solutions to effectively disband and reform police; simplify police governance and placing

control in local governments (O’Rourke, 2021).

In trying to understand why disbanding the police is an effective and necessary solution

to reforming police, there must be an exploration into the three pathologies of police. First, the

size of the American criminal justice system produces a problem. The United States incarcerates

individuals at a rate that is unparalleled to any other country in the world. Although the US has

less than 5% of the world’s population, it has over 23% of the worlds incarcerated individuals

(Hartney, 2006). These statistics are even more disturbing when these numbers are viewed

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through a racialized lens. Between the black and white population, black males are being

incarcerated seven times the rate of white males (Pettit, 2009). Even when the American jail

system is not accounted for, the United States policing structure is substantial in its size. The

sheer size of this entity means that any gradual reform strategy would prove to be

counterproductive. Mychal Smith explains that any gradual or incremental reform strategy keeps

the forces of oppression and death in place, therefore advocating for this brand of reform results

in a moral failure (Smith, 2020). The intrusive scope of police has evolved and developed

throughout the years with the creation of automobiles and implementation of the War on Crime

and its growth of urban policing alongside it. With the development of automobiles, individuals

were presented with the opportunity to travel and leave their local communities. Because of this

growth in individuals’ autonomy, the police discovered new ways to intrude and intervene with

this freedom. With people being rather inexperienced drivers and accidents being extremely

common, the public called for laws addressing this problem. This call to action led to more non-

consensual interactions between police and individuals (Oliver, 2020). Like Akbar, O’Rourke

identified during the War on Crime, law enforcement entities were heavily invested in while

social services shrank. This resulted in the police becoming the prime display of state presence in

urban communities. So far, this perspective has presented similar concepts to the abolitionist

argument in that it presents the critique that the policing institution since its inception has

maintained social order through violence.

Second, police departments throughout the United States are not held to the traditional

mechanisms of accountability (O’Rourke, 2021). Formally, sheriffs and police chiefs are directly

or indirectly accountable to the electorate, but in practice this is not the case. Erik Luna explains,

due to the relative size of this country, lawmakers are unable to anticipate every application of a

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statute. Due to this fact, lawmakers put the responsibility on executives to follow the application

and enforcement of these statues. As such, law enforcement wields extraordinary power in their

discretionary judgement (Luna, 2000). Michael Lipsky has routinely described this as “street

level bureaucracy. (Lipsky, 1980, p. 394). This is described as workers who interact directly with

citizens while performing their duties and who have a significant amount of discretion in the

performance of those duties. Accountability is nearly impossible to achieve due to the

overwhelming amount of discretion held by individuals in these positions. This discretion is

largely held by the police alone, so politicians are not held accountable which means that the

electorate will not properly assess the practices deployed by police.

This lack of accountability is addressed by increasing local administrative power. This

empowerment at the local level would allow poor black and brown communities to have more

influence in local politics. At the state and national levels, minority groups are impacted

negatively because of the little influence and power they have at these levels (Miller, 2008).

Control at the local level ensures that local law enforcement would be held accountable to the

citizens they oversee. According to Stuntz, local control creates political legitimacy because

“those who bear the costs of crime and punishment alike . . . exercise more power over those

who enforce the law and dole out punishment” (Stuntz, 2013).

Lastly, policing in America has effectively subordinated black and brown people within

the United States. People of color are more likely to be given excessive fines and fees, stopped

by police, subject to excessive force, or even killed by police. Elizabeth Hinton believes that an

implicit bias held by whites against blacks contributes to these inequalities. According to

Brownstein, “people act on the basis of prejudice and stereotypes without intending to do so”

(Brownstein, 2015). This implicit bias impacts stages of the criminal process like policing, case

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processing, prosecution, and disposition (Hinton, 2018). More importantly, prosecutors

egregiously charge blacks in ways that create significant racial disparities in prisons. These racial

disparities are highlighted in a 2019 study of jail inmates. Zhen Zeng and Todd Minton were able

to discover that blacks were incarcerated at a rate that was more than three times the rate of

whites (Zeng and Minton, 2019).

Within this centralized system several institutions within the state and federal

governments have routinely dealt with local injustices, and this centralized system has frustrated

democratic accountability within this country. Addressing these local injustices within a

centralized framework is problematic because the federal government is unable to understand the

distinctive needs of each local community across the nation (Brown, 2005). Disband the state in

its essence is referring to the federalist system that was created. Conservative states preferred

localized decision-making because “there is value in ensuring that local jurisdictions have the

discretion to make decisions that their residents wish to make” (Barron, 2005). Because of this

desire for localized decision making, conservatives argued for a devolution of power from the

federal government to conservative states. With this shift in power, conservatives had the ability

to create certain policing policies that directly impact the black and brown communities. Police

and prisons were expanded and intensified to deal with these populations, resulting in the

conservative state policing strategy was asserted over localities. States can make decisions and

respond to the implementation of their police powers like local enforcement policy. The federal

government within this federalist system is limited in its response per the request of state

authorities. Normal reform strategies do not correctly address or resolve these pathologies, but

they do not try to fix the political entrenchment of these policing institutions. The only way to

resolve this problem is to disentrench institutions by disbanding them (O’Rourke, 2021).

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Disbanding state is necessary because it eradicates the institutional agreements that create a

hostile environment toward reform and empowers poor black and brown communities to create

and enact laws that serve their own interest.

Analysis

Many of these theories express distinct differences between each, but they also present

some similarities to create effective police reform. Within Akbar’s abolitionist demand of the

policing structure, she proposes the idea that reparations could be used to mitigate the harms

police have caused and hold the state accountable. Citing the use of reparations in Chicago, she

concluded that reparations could be used as an alternate form of accountability and in doing this

it would undermine the notion that that criminal prosecution of police could be the only way

justice could be achieved. This reparative argument is again presented in Simonson’s

introduction of examining police reform through a power lens. Considering the historical wrongs

committed against black and brown communities by police, and then constructing a reform

strategy that could alleviate some of the harms they suffered at the hands of police. The idea held

by these authors is that reparations or a reparative reform strategy is based in belief that these

approaches will ensure that these actions will never be repeated. Disbanding the state also

presents its similarities to the reparative argument because it in some ways can have a reparative

effect on those poor black and brown communities. Disbanding the state suggests that the

empowerment of the black and brown communities will have restore this populations for the

harms committed under this system. Disbanding also is greatly like the power lens. Both theories

emphasize the shifting of power to the population that has suffered the most. This shift in power

gives those communities the ability to create new policy.

19
 Disaggregating police and disbanding police are two theories that examine the

institutional structure of police, and when joined together could create an effective reform

strategy. Disaggregating the police examines the harms caused by police in black and brown

communities, then calls into question the daily duties of police within their normal workdays.

Disbanding police presents the idea of somehow modifying state and local government. Within

this modification, localities would effectively be able disband themselves resulting in police

departments realistically being able to be reformed. To do this, there needs to be a simplification

of police governance and control must be placed in the hands of local governments. The use of

both theories was introduced by Jordan Woods in their paper Traffic Without the Police. Within

the paper Woods challenged the idea that traffic could not be enforce without police, and in

doing this constructed a new vision of this country’s current driving system dissociated from

police enforcement of traffic (Woods, 2021). Through disaggregation, Woods investigated police

and its role in conducting traffic. Woods raised questions as to whether police were the

appropriate agency to be used regarding traffic enforcement. Due to expanding nature of traffic

codes, citizens are prone to violate those codes. Creating a reliance on police as the sole entity

for traffic enforcement places citizens at risk for being exposed to significant amounts of law

enforcement activity (Baumgartner, 2018). Following a disaggregation of police duties in traffic

enforcement, disbandment of police traffic units would follow which would mean that officers

would be transferred to different departments. Wood’s definition of disbanding would entail

simply the dissolvement of traffic enforcement agencies, which would be different to the

disbandment of the state. While traffic may seem like a less severe circumstance in which

policing could be dissociated, this could provide the necessary framework in using these two

theories together to effectively created police reform strategy.

20
 This next part of the paper will examine the legal implications of these theories. From a

legal perspective none of these theories effectively address the constitutional challenges

presented by the qualified immunity doctrine. The abolition of police simply cannot address

qualified immunity because it does not address the legal issues qualified immunity raises. The

abolition of the policing function does not provide any remedy for qualified immunity because

police are still vital to society in some aspect. While there needs to be significant reform to the

institution, abolishing police is not the answer. Disaggregating the police cannot address

qualified immunity because within this theory there is only an emphasis on examining the role of

police in society and determining if they are the best institution to address issues that arise. Like

abolishing police, this theory does not produce the means in which laws could be amended.

Shifting power and disband the state are two theories that are extremely like each other, but a key

aspect of disband the state makes it the most promising in addressing qualified immunity. Both

theories involved a shift in power to disenfranchise black and brown communities. This

newfound power allows them to effectively create reform strategies for policing practice and

laws. The key difference between these two is that shifting power does not entail the

disbandment of the state which is necessary for this communities to be empowered. The state as

it stands is run by conservatives which leads to this conservative policing regime and significant

flaws within the qualified immunity doctrine. The disbandment of the state would result in a

progressive devolution of power to those black and brown communities empowering them to

effectively change the laws so that they serve their interest.

This next section will briefly examine the creation of the qualified immunity doctrine,

and its application in the earlier caselaw. Next, it will examine the court’s interpretation and

application of this doctrine through the years. In the examination of the court’s interpretation of

21
this doctrine, it will show the court’s obvious flaws in labeling the qualified immunity doctrine

as purely a question of law. The substantial investigation into the relevant legal principles as well

as the factual evidence presented on a case-by-case basis supports the conclusion that the

qualified immunity doctrine is both a question of law and fact. This will show how it has evolved

into what it is today, the ultimate protection for police engaging in misconduct. Finally, I will

apply Disband the State or Hyper-Federalism and show how it presents an effective way in

fixing qualified immunity.

Qualified Immunity

Throughout the Supreme Court’s existence, they have routinely granted government

officials and law enforcement some form of immunity from lawsuits brought against them. A

defense against lawsuits has been necessary for officials so that they have a defense from

superfluous impediments on the duties they much perform. Qualified immunity provides a

protection of government officials and law enforcement form any liability in civil suits if their

action does not violate “clearly established” laws (Pearson, 2009).

The Supreme Court first established the justification for the qualified immunity doctrine

in 1967 during the case Pierson v. Ray. Members of a group of clergy were arrested and charged

with conduct breaching the peace, but soon after the charges would be dropped. The group of

clergy soon after brought action against the court for damages under 42 U.S.C. § 1983, which

makes an individual liable if they deprive another person of his civil rights. In an examination of

common law in 1871 the court found that the defense of good faith and probable cause which is

available to the officers in common law action for false arrest and imprisonment, is available to

them under 42 U.S.C. § 1983 (Pierson, 1967). While the officers were not granted absolute

22
immunity like the judge, they ruled that they could not be held liable because the arrest was

made with probable cause. Even though the innocence of the suspect was proved, he was not

liable for the false arrest. This was the start of the Supreme Court expanding the qualified

immunity doctrine, all affording government officials more protections. This was the start to the

courts limited availability of the protection of federal civil rights, which was supposed to

recovered under 42 U.S.C § 1983. Rizzo v. Goode is another earlier case that presented the court

with the opportunity to provide relief under 42 U.S.C. § 1983, but instead they ruled that the

“principles of federalism” forbade that relief unless the circumstances were extreme (Rizzo,

1976). As presented in Rizzo v. Goode, most cases pertaining to the qualified immunity doctrine

deal with constitutional tort claims. Michael Wells, labels a constitutional tort claim as a

government official inflicting physical injury, causing emotional distress, publishing defamatory

statements, or initiating a malicious prosecution in violation of fundamental constitutional rights

(Wells, 1997). When examining the Supreme Court’s decisions, the qualified immunity doctrine

enables protection from these types of torts claims if their “conduct does not violate clearly

established constitutional rights which a reasonable person would know” (Harlow, 1982). In this

case if an officer’s interpretations are reasonable, they are protected from suit when they violate

an individual’s fundamental constitutional rights.

Struggles in Defining Qualified Immunity

Today, the legal system has struggled with the qualified immunity doctrine because of

their inability to correctly label what kind of question the qualified immunity is. The court asserts

that qualified immunity is merely a question of law, which should be resolved in the beginning

stages of litigation. The courts adherence to these principles has been driven by the main

23
justification for qualified immunity which is to limit the social cost of civil rights claims against

public officials (Chen, 2006). The courts continued determination that qualified immunity is

purely a question of law is farfetched from a doctrinal standpoint. As noted, Harlow v.

Fitzgerald established that an official would be immune if their conduct did not violate the

constitutional rights a reasonable person would know. Since this case, the court has continued to

redefine the analysis of the facts which has turned into a multi-party inquiry. In an analysis of

facts, the court must first determine if the plaintiff has alleged that their constitutional rights had

been violated (Wilson, 1999). Second, the court must determine if the rights asserted were

clearly established at the time of the violation. Any legal doctrine which assesses the

reasonableness of an individual’s action or behavior must involve the examination of the relevant

facts of the case. Because of this fact it can be concluded that the qualified immunity doctrine is

both a question of law and fact because it requires the application of both legal principles in a

factual context. The Supreme Court’s determination of the qualified immunity doctrine as a

question of law also impairs the interest of plaintiff within a case because it is difficult to

determine whether a constitutional right is “clearly established” (Balcerzak, 1966). The “clearly

established” standards have been made unclear in many aspects, but the focus here will be on

judges’ inability to know which courts to count in terms of establishing the relevant substantive

law. The Supreme Court determined that all courts could clearly establish law but fails to provide

greater details in how to do this (Wright, 1998). Because of this lack of specificity, there has

been a divide among several United States Courts of Appeals in determining the authority that

can be used in clearly established law, and in developing a test that can be used in determining if

a particular constitutional right is clearly established as it relates to qualified immunity

(Stemerman, 2002).

24
Reconsidering Qualified Immunity

The calls to reconsider the qualified immunity doctrine has grown over the years.

Proponents of this idea firmly support this idea because it does not follow the common law

immunities that existed when 42 U.S.C. § 1983 was created, it undermines the necessity for

government accountability, and government officials do not need to be shielded from the burdens

and distractions of being sued (Schwartz, 2020). In the defense of this doctrine, the court has

labeled qualified immunity as something that is essential to society.

While many of the Supreme Court justices have insisted that the qualified immunity

doctrine is essential, throughout the years several individual justices have dissented in certain

cases involving this doctrine. Kisela v. Hughes presents an instance where an officer was

responding to a police report saying that there was an individual holding a knife in what

appeared to be a confrontation. When the individual began to take steps toward the victim, the

police shot the individual four times. Justice Sotomayor in her dissent wrote that in examining

the facts a jury would be able to determine that the officer had violated clear established Fourth

Amendment rights by using unnecessary lethal force (Kisela, 2018). Justice Ginsburg in her

joining dissent went so far as to say that the court’s decision sent a signal to law enforcement

officers that they can “shoot first and think later” (Kisela, 2018). Justice Thomas in Ziglar v.

Abbasi announced his frustration also with the path of the qualified immunity doctrine. He

explains, “Until we shift the focus of our inquiry to whether immunity existed at common law,

we will continue to substitute our own policy preferences for the mandates of Congress. In an

appropriate case, we should reconsider our qualified immunity jurisprudence” (Ziglar, 2017).

25
 Taylor v. Riojas and McCoy v. Alamu are two recent cases that deserve more attention

because they resulted in the Supreme Court reject a claim of qualified immunity, also because

these cases could represent an evolving view of qualified immunity and the protection it provides

officers (Crocker, 2021). Both plaintiffs were Texas state prisoners alleging that correctional

officers had violated their Eighth Amendment rights. In Taylor, Trent Michael Taylor sued

prison officials under 42 U.S.C. § 1983 alleging that the prison placed him under conditions that

the Supreme Court labeled as “shockingly unsanitary” (Taylor, 2020). The Supreme Court in this

case concluded that the alleged conduct of the officer “violated clearly established statutory or

constitutional rights of which a reasonable person would have known,” as quoted from Harlow.

(Harlow, 1982). The court writes, “No reasonable officer could conclude that…it was

constitutionally permissible to house Taylor in such unsanitary conditions” (Taylor, 2020).

In Mccoy, Prince Mccoy alleged that a guard sprayed him in the face with mace for no

reason cause “burning skin and eyes, congested lungs, difficulty breathing, stomach pain, vision

impairment, anxiety, nightmares, depression, and other emotional distress” (Mccoy, 2021). The

Fifth Circuit in this case concluded that McCoy’s constitutional rights were violated, but they

would also grant the officer qualified immunity. When McCoy sought a review by the Supreme

Court, they would respond by granting him a writ of certiorari and vacated the judgement of the

Fifth Circuit. In doing this, the Supreme Court instructed that the Fifth Circuit review this case

considering the decision in Taylor v. Riojas.

Based upon these several opinions expressed by Supreme Court and individual justices,

the ideas surrounding the reconsideration of the qualified immunity doctrine cannot be

dismissed. Through historical precedent, one can deduce that the existence of such a doctrine has

not been adequately implemented, and therefore has not been justified. The common law

26
foundation for qualified immunity has not been upheld as the court as developed it over the

years. While many cases have not been explicitly dismissed on the ground of qualified immunity,

this doctrine has ushered in defenses like officer’s good faith, established extensive conditions to

the clearly establish the law, and has given the courts the ability to grant qualified immunity

without address other constitutional violations. These defenses together have constructed an

impenetrable shield that protects officers and government officials from accountability. Because

of these factors, the need to fix qualified immunity through an application of Hyper-Federalism

is necessary.

Applying Hyper-Federalism to Qualified Immunity

As mentioned before disbanding the state involves a progressive devolution of power that

would empower black and brown communities to make and enforce laws that serve their interest.

Recent events like George Floyds death have reinvigorated efforts to abolish qualified immunity

from a federal level. Within Massachusetts progressive lawmakers have introduced a bill that

could effectively eliminate this doctrine. Known as the Ending Qualified Immunity Act of 2021,

the bill starts by detailing the history of the qualified immunity doctrine, then finishing with why

there should be a removal of qualified immunity. Rep. Ayanna Pressley and Sens. Ed Markey

and Elizabeth Warren have been the three individuals advocating for this bill’s passing. The

main obstacle stopping this is that the bill most past through the senate. Pressley and others voice

their concerns, “concerned by recent discussions that the provision ending qualified immunity

for local, state, and federal law enforcement may be removed in order to strike a bipartisan deal

in the Senate” (Segers, 2021). Despite democrats holding many of the seats, plus the vote of Vice

President Kamala Harris’ tiebreaking vote, the bill has encountered obstacles in getting passed.

27
Widespread conservative opposition to the bill, particularly the stipulation that ends qualified

immunity, presents an unlikely scenario in attracting the necessary ten conservative votes.

In an application of disbanding the state, the passage of this bill will not happen because

of the conservative control of power within the federal government. Because of this, a

progressive devolution of power to the black and brown communities must happen, and localities

within Colorado and New Mexico have been able to achieve this. Legislation in both states has

been implemented that gives citizens an alternate channel through state courts to sue government

officials over violations of the state’s bill of rights (Wise, 2021). Within this bill any government

entity or person acting on behalf of that entity is liable if they violate a person’s rights under the

state constitution, and no public body or person will enjoy the defense of qualified immunity.

Because this does not pertain to the Constitution, defendants are unable to use qualified

immunity as a defense (Schweikert, 2021). While it does not eliminate qualified immunity within

the federal courts, state courts and civilians have been presented with the ability to mitigate some

of the doctrine’s effect.

Conclusion

In this paper I have highlighted several theoretical perspectives to demonstrate how

disbanding the state or hyper-federalism presents the most promise in fixing qualified immunity.

Through the courts struggles in interpreting and applying the qualified immunity doctrine,

government officials have been shielded from liability when they violate the constitutional rights

of citizens. Because of this, disbanding the state would effectively allow for this doctrine to be

fixed. Localities within New Mexico and Colorado have effectively applied this theoretical

perspective which has produced an alternative means for citizens to bring civil suits against

28
officials while eliminating an official’s ability to invoke a qualified immunity defense. Due to

this bill being enacted within the year, there has not been any case law referencing civil suits

against officials. While pursuing my legal degree, I will further this research by examining case

law to measure the effectiveness of disbanding the state in addressing the issues surrounding

qualified immunity.

29
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