Room for Debate

Racism Is the Problem Here

Kenneth Nunn

Kenneth Nunn is a professor at the University of Florida Levin College of Law, and is a member of the Florida Innocence Commission.

March 21, 2012

Stand Your Ground does not permit the use of deadly force against an initial aggressor unless “the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger.” Ordinarily, one would expect that a reasonable force requirement would provide ample protection against idiosyncratic or morally suspect behavior. But this is not the case when victims happen to be black.

As several legal scholars have pointed out, the connection between reasonableness and race is problematic. African-Americans, black males in particular, have been constructed in popular culture as violence-prone and dangerous.

Decisions regarding the reasonableness of self-defense claims should be made in court.

Sociologists tell us this attitude toward black males is widely shared, sometimes unconsciously, as the Harvard implicit racism test discloses. In the minds of Americans who hold these views, fear of black males, and consequently the use of deadly force against them, is “reasonable.”

A jury is particularly likely to credit a defendant’s fear of blacks when the determination of reasonableness is made not in an objective manner but from the position of someone in the defendant’s situation. Indeed, Bernhard Goetz’s acquittal of charges for the shooting of four black men in the New York subway in 1984, and the acquittal in 2008 of the police officers involved in the Sean Bell shooting, were due in no small part to their lawyers’ “fear of the black man” manipulations.

Simply eliminating Stand Your Ground would not get rid of racially disparate applications of the reasonableness test. It would not prevent young men like Trayvon Martin from getting killed and their killers getting off scot-free. Self-defense claims should be limited to cases in which they are objectively reasonable, not when they are reasonable to someone in the defendant’s shoes.

Additionally, decisions regarding the reasonableness of self-defense claims should be made in court. Many Stand Your Ground statutes grant killers who claim self-defense immunity from prosecution, so they cannot be arrested if the police view their assertions of self defense to be reasonable. This is wrong. The reasonableness of a killer’s actions ought to be decided in open court by juries made up of ordinary people, and not determined prior to trial in the secrecy of the police station.

Stand Your Ground statutes may be problematic for a number of reasons. But if we really want to save lives and prevent future miscarriages of justice, we will have to confront the reality of race.

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Topics: Law, criminal justice, guns

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