Why we must do more than repeal ‘stand your ground’ laws

The acquittal of George Zimmerman for the killing of Trayvon Martin dealt a devastating blow to the collective psyche of many across the country, particularly African Americans. It served as a reminder that black life is valued less, viewed as a threat to be eliminated rather than members of a national community to be protected.  The verdict was a bitter reminder of the ways in which African Americans are presumed to be criminals and another confirmation that stereotypes can be used to justify the surveillance, stalking and killing of Black youth with impunity.

In the wake the jury’s acquittal of Zimmerman, people across the country marched, rallied, and protested to express their collective disgust with the unequal system of justice represented by the Zimmerman verdict. The outrage and calls for change have focused particularly on Florida’s “Stand Your Ground” law – the one that says you don’t have to avoid needless killing by retreating before using deadly force.

Florida’s “Stand Your Ground” legislation included several different provisions expanding its self-defence laws, but the basic no-retreat-required rule is not unique to Florida: almost half the states have a similar law. Communities have called for the repeal of these laws. Musicians have announced boycotts of Florida and other states with similar legislation. In his response to the verdict – his first extended remarks on subject of race, racial profiling and unequal access to justice – President Obama called on states to reconsider Stand Your Ground laws.     

And yet, while these calls represent a good start toward change, we will not be saved from the racial profiling that led to the killing of Trayvon Martin and justice will not be served through an exclusive focus on a repeal of Stand Your Ground laws.

Self-defence, ‘reasonable fear’ and implicit racial bias

We will not be saved by the repeal of “Stand Your Ground” laws because they are only a small piece of the larger picture of self-defence and racial profiling responsible for so many Black deaths.

First, it is far from clear that eliminating the Stand Your Ground law would have made any difference in the Zimmerman trial. While it was referenced in the jury instructions, the defence ultimately argued that Zimmerman had no chance to retreat, making the no-retreat-required rule beside the point.

Stand Your Ground laws are only one of several types of laws that expand the right of self-defence beyond an immediate life-or-death situation. Defence of habitation laws, which exist in almost every state, permit the use of deadly force against an intruder in the home, even if you are not in fear for your life at that moment. Some states, including Florida, have expanded this law to include occupied vehicles.

Many states, including Florida, permit killing in order to stop any “forcible felony”, not just a deadly assault. Many states, including Florida, allow you to claim self-defence even if you started the fight. And some states, including Florida, require that the prosecution prove that the killing did not happen in self-defence, rather than requiring the defendant to present enough evidence to support the claim. All of these laws make self-defence available in more situations, make it easier to claim, easier to justify the taking of a life and they should all be examined closely.

Second, whether or not a state has a Stand Your Ground provision, self-defence ultimately comes down to whether someone had a “reasonable fear of imminent death or serious bodily injury”. Race is deeply implicated in such a question. In fact, it is impossible to take race out of self-defence law. Take, for example, the findings   of recent studies by Dr Jennifer Eberhart of Stanford University, which suggest that significant levels of unconscious anti-black bias exist in all of us and shape negative perceptions of black men. 

In one study, Eberhart notes that “[t]he mere presence of a Black man, for instance, can trigger thoughts that he is violent and criminal”. She goes on to note that “[m]erely thinking about Blacks can lead people to evaluate ambiguous behaviour as aggressive, to miscategorise harmless objects as weapons, or to shoot quickly, and, at times, inappropriately”.

Not only do these implicit associations shape fear of black men by those who assert self-defence in homicide prosecutions, it also shapes how jurors view black victims and their willingness to accept the claim that defendants like Zimmerman were in “reasonable fear of imminent death or serious bodily injury”. One need look no further than the Bernhard Goetz case to assess the validity of these findings. And for every controversial case like Goetz or Zimmerman, there are many more cases in which the killing of a black victim in self-defence was never questioned or prosecuted.

A black and white issue

When blacks raise self-defence claims, however, they are far less likely to succeed. Instead, blacks are assumed to be the aggressor, the one inflicting harm rather than defending against violence. Studies have found that witnesses to an assault of an unarmed black man by a razor wielding white man began to misremember the black man as the one holding the razor after repeated tellings of the story. The study demonstrates that, like in Trayvon Martin’s case, it is difficult for whites to imagine blacks to be the victims of white violence. Rather, blacks are denied the right to be afraid or defend themselves.

These implicit associations between blackness and criminality do not appear out of thin air. Rather, they represent the accumulation of overt and covert social policy that created and reinforced the link between blackness and criminality. Black criminality was used as a justification for slavery and the basis for what came to be known as the Black Codes. Inherent black deviance was used to justify the creation of a new form of slavery known as convict leasing and chain gangs. Black criminality was part of the basic logic of Jim Crow and justification for racial segregation.

Today, notions of black criminality undergird disproportionate policing and racial profiling across the country (particularly for drug crimes, despite the fact that studies have shown that blacks and whites engage in drug use at the same rates). Jurisdictions like New York City continue to defend racial profiling and “stop-and-frisk” policies despite their ineffectiveness and despite judicial challenges alleging that such policies are unconstitutional. Racial profiling by law enforcement in turn legitimises private racial profiling by people like George Zimmerman. It makes racial stereotyping a permissible means of interaction, and it helps sanction discrimination.   

Anti-racial profiling legislation   

Racial profiling and stereotypes of black criminality are not an appropriate or just means of policing. Federal, state and local governments should not be equivocal about this. This is an issue of life and death. President Obama can and must use the bully pulpit of the presidency to propose legislation to outlaw racial profiling by federal law enforcement agencies and state agencies that receive federal funds.

State and local agencies that receive federal funds should be required to collect data on race in stops and to make that information public. They should be required to collect similar data on the race of defendants and victims in self-defense cases. And states should use this information to reconsider laws that expand the right of self-defense.

The Department of Justice should vigorously investigate and prosecute law enforcement agencies that engage in racial profiling. Moreover, Ray Kelly should not be appointed to lead the Department of Homeland Security. His endorsement of New York City’s ineffective and aggressive stop and frisk policy should disqualify any candidate who would lead a large federal law enforcement agency in an administration committed to anti-discrimination.  

To truly pay tribute to Trayvon Martin and others like him, we must address the policies and practices that criminalise black people and leave them vulnerable to the public and private violence.

Addie Rolnick is an Associate Professor of Law at the University of Nevada, Las Vegas where she teaches criminal law.

Priscilla A Ocen is an Associate Professor of Law at Loyola Law School where she teaches criminal law and criminal procedure.