Stand Your Ground Laws Have a Disproportionate Impact on African Americans

 

By Devarieste Curry, Esquire©

 

I.          INTRODUCTION

On July 13, 2013, a jury of six women, five white and one apparently Hispanic and/or Black^[1] found George Zimmerman not guilty of both second degree murder and manslaughter in the killing of 17 year old Trayvon Martin.  While Zimmerman opted against a “stand your ground” hearing before a judge and proceeded to a jury trial under a self-defense theory, it is clear from the instructions that the jury was given that the “stand your ground” concept is embedded in Florida’s self-defense law, and one of the jurors has admitted that “stand your ground” played a vital role in the jury’s decision.^[2]  With young Martin’s killing, and especially since the non-guilty verdict, for the first time a broad cross section of the nation has been galvanized to question the reach of stand your ground laws (“Laws”) that have been enacted in several states, but had largely gone unnoticed.^[3] 

The broad cross section of the nation that has become galvanized include persons from multiple ethnic backgrounds, including young people; traditional civil rights groups; the United States Justice Department, and various persons from the entertainment world.  Of course, there have been commentaries and blogs from legal scholars, political pundits, and a host of wannabes.  Indeed, so much has been written and said since the Zimmerman verdict that I wondered if there was more to say.  But I am posting the essence of a piece I wrote and shopped to publishers long before the trial because I believe there is more to say.  While I applaud the advocacy to repeal the stand your ground laws, as I read and listen to commentary, it seems an important component is missing. 

Ultimately, state legislators who are inclined to work for the repeal of stand your ground laws will need more than sound bites and emotionally-laden statements to support their repeal efforts.  I believe that legislators should focus particularly on the lack of equity in the enforcement of and application of the Laws and on the greater social impact of the Laws on African Americans . 

            Believing that the Laws will have a disproportionate impact on African American men in particular and the African American community in general, I focus my comments on the impact of the laws on the African American community.  By so limiting my testimony, I do not in any way mean to suggest that other communities are not affected by the Laws, including other communities typically referred to as “minority.”  I believe strongly, however, that because of the history of race relations in this country, any analysis of equity in the enforcement of the Laws and assessment of the greater social impact of the Laws must take cognizance of the history of race relations in this country. 

II.        Equity in the Enforcement and Application of the Laws

            As troubling as the Zimmerman verdict is, my perception of the lack of equity in enforcement and application of the Laws is not based on the existence of data as to how the Laws have been applied and enforced to date, but, rather, on the elements of the Laws that authorize one to use deadly force without the duty to retreat in certain defined circumstances.  Such language in the Laws, by its very nature, lends itself to inequitable enforcement and application, given the history of unreasonable fear of African American men in this country, a group that will feel the brunt of the Laws, if the history of race relations and the implementation of criminal laws are worthy teachers, which I believe they are. 

            In my opinion, relying too strongly on perceptions can prevent the type of searing analysis needed.  Perceptions often lead to illusions, and illusions often lead us as a society to avoid the types of inquiries or the difficult tasks needed to move us to the kind of justice we all proclaim we want as a society. Evidence of the kind of unreasonable fear of which I speak has been documented in various publications throughout history by historians, social scientists, psychologists, and journalists. ^[4]  

A.                Evolution of the Laws

The evolution of the Laws is important in assessing how they might be used and enforced.  The Laws evolved from the Castle Doctrine, which eliminates the duty to retreat before using deadly force to defend against an intruder or attacker in or around one’s home when one reasonably fears imminent death or serious injury.  Many states have extended the doctrine to other locations that still may be considered one’s “domain,” such as a car or boat that one occupies.  However, in 2005, the state of Florida extended the “no duty to retreat” concept to most locations outside of one’s home or vehicle. The relevant part of Florida’s law provides:

A person who is not engaged in an unlawful activity and who is attacked in any other place [besides one’s home or an occupied vehicle] where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony.^[5]

The presumption of reasonable fear of death or bodily harm applies only with respect to the home or vehicle intrusion, but the fact that the law provides a defense for the use of deadly force in other areas outside of the home to prevent the commission of a forcible felony means that fear of death or bodily harm is not necessarily required for the use of deadly force when one is in any place “where he or she has a right to be.”  The law also provides immunity from civil and criminal prosecution (including arrest, detainment, or charging) for those who use deadly force meeting the applicable standards for home, vehicle, or any other place one has a right to be.^[6] It further discourages legal challenges against one who used such force, by requiring a court to award attorneys’ fees, court costs, compensation for loss of income, and all expenses incurred by a defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution.^[7] 

The Florida legislation was the result of efforts by a prominent Florida businessman and National Rifle Association (“NRA”) member and Florida senator Durell Peaden, and was based on a previous proposal drafted by former NRA President Marion Hammer.^[8]  Soon after Florida passed its law, the American Legislative Exchange Council (“ALEC”) adopted and approved model legislation with substantially the same language as the Florida law.  The NRA has worked tirelessly for the adoption of the model language by all states.^[9] 

Many would likely think it reasonable to assume that someone intruding into one’s home or occupied vehicle would provoke a reasonable fear of death or serious injury.  But there is cause for great concern in expanding the doctrine so that it applies anywhere one has a right to be.  As noted in a June 3, 2012 article in the Tampa Bay Times, the “Florida ‘stand your ground’ law yields some shocking outcomes depending on how the law is applied.” ^[10]

Authorizing the use of deadly force (without the need to retreat) in virtually any public location extends the Castle Doctrine beyond what is acceptable in a civilized society.  There is substantial risk that one acting under color of the reasonable fear or reasonable belief (with respect to forcible felony provisions) protection embodied in these Laws will operate more from mistake, confusion and/or bias than a reasonable fear or reasonable belief.  That is certainly true with respect to how those acting under color of the Laws may react to African American males in particular and African Americans in general. 

            As Steinhorn and Diggs-Brown say in By the Color of Our Skin, “Peel away from most whites their color-blind pretense and you will find a deep and abiding fear of black men, of almost all black men.”^[11]  This abiding (and unreasonable) fear is embedded in the American cultural psyche, and since Reconstruction, the media has portrayed the savage Black man archetype.^[12]  Of course we do not need to go back to Reconstruction or the early 20^th century to catalogue the horrors that have been visited on Black men as a result of an abiding and unreasonable fear.  Recall the brutal death of Emmett Till, a mere teenager.  Recall Bernhard Goetz, who shot four unarmed teenagers who asked for five dollars because “by words and by deeds they gave [him] every indication that they were about to use force on [him].”^[13]  After shooting and paralyzing one of the victims, Goetz took aim again because the youth was moving around and because “possibly” Goetz was afraid because the youth was black.^[14]  Surely you also will recall the case of Amadou Diallo, the unarmed 23 year old African immigrant killed while being fired upon 41 times and who was shot 19 times by police officers who claimed that as he reached for and withdrew his wallet, they feared he was taking out a gun.  The officers were acquitted of second degree murder charges. 

            Many of you undoubtedly will recognize and acknowledge the parade of horrors I have mentioned, but may be conflicted as to whether there was a racial component underlying decisions to use such force.  A study by social psychologist Joshua Correll of the University of Colorado lends supports for the theory that race influences such decisions, even if subconsciously.  Correll used a video game to study whether racial bias affects the decision to shoot a suspect.  Images of men of various races and carrying various items, including a cell phone, a wallet, or a gun, were flashed onto a monitor, and in a split second, the game user was required to determine whether the person shown in the image had a gun and whether to shoot.  Correll tested college students, people from malls and other public places, and also police officers.  According to Correll and his fellow researchers:

“In the case of African American targets, participants simply set a lower threshold for the decision to shoot.  . . .  That trend held true even when the participants themselves were African American, [and it] comes not from what you personally believe or want to believe, but from long-standing associations drilled into our heads every time we go to the movies or pick up a newspaper or hear a joke.”^[15] 

 

Citing examples and evidence, Steinhorn and Diggs-Brown also state that, “White fear of black violence is almost a reflexive response, regardless of contrary evidence or experience.”^[16]

            An additional reason the reasonable fear standard embedded in the Laws is so troubling is that fear of African American males historically has been endorsed by those at the highest level of government.  Consider, for example, that the movie Birth of a Nation (the film portrayed African-American men as unintelligent and sexually aggressive towards white women, and the portrayal of the Ku Klux Klan as a heroic force ) was shown at the White House and endorsed by President Woodrow Wilson, who reportedly declared the theme of the film to be true.^[17]  Consider also the candidate George H. W. Bush’s use of the Willie Horton ad during the Bush-Dukakis campaign to reinforce the Black savage stereotype and play upon this country’s racial fears. 

            While it is certainly true that African American males are the most threatened by the Laws, African American women are not immune, especially those who are of the darker hue and who are not docile.  I know that from personal experience.  Many are the times I have been told that I am intimidating, and in law school, I was told bluntly by a white male coach of a moot court team that, “You have to remember, your very presence is threatening. You are tall and black.”  I know many women who have had similar experiences of being made to feel that they put people in fear even when they are not doing anything remotely threatening. 

            When one looks at the Florida Stand Your Ground Law, the model for the ALEC Model Castle Law,^[18] one should rightly understand why the reasonable fear standard would cause great trepidation within a community that has a history of being wrongly and unreasonably feared. Consider the following information from a Tampa Bay Times study of the application of the Florida law:

·         By way of background, it should be noted that those who invoke "stand your ground" to avoid prosecution have been very successful at avoiding prosecution.  Nearly 70 percent have gone free. 

·         Defendants claiming “stand your ground” are more likely to prevail if the person killed is black. Seventy-three percent of those who killed a black person faced no penalty compared to fifty-nine percent of those who killed a white person.
 

·         In the vast majority of cases, the person who was killed by someone who later invoked stand your ground was unarmed.^[19]

Given that race-based fear and suspicion are pervasive in our society, it is reasonable to expect that Laws would not be applied consistently and could serve unfairly to shield those who have irrational fears of African Americans, or who are simply racist and seeking to exploit the Laws to perpetrate violence against African Americans.

III.       Assessing the Greater Social Impact of the Laws

The Stand Your Ground Laws do not only affect those who are most likely to feel the greatest weight of the Laws (Black men and Black women who are assertive, especially those of darker hue).  Such Laws undermine the ability of an entire segment of society to pursue life, liberty and the pursuit of happiness.  In the 21^st century, African Americans as a group, irrespective of education and income, still cannot live free and unfettered lives.  Unreasonable fear based on stereotypes may spring from deep-rooted assumptions regarding where African Americans “belong” or “have a right to be” and, thus, whether their presence is considered suspicious or threatening. 

 

            African American youths who have played by the rules and worked hard to excel find themselves facing an overarching anxiety their parents faced generations ago: How to reach adulthood safely and avoid the criminal justice system.  This played out recently in a youth development group in which my daughter participates.  When asked to choose their own speaker for an upcoming event, the youth readily chose a police officer who could give them some “survival tips.” 

            The impact of the Laws on the African American community may best be explained by blogs on news sites reporting on the Trayvon Martin case and in the one hundred fifty seven (157) page opinion about the New York Police “Stop and Frisk” program.  As to Martin, public comments on blogs and on news sites that reported on the Trayvon Martin case included many comments from people who agree with the idea that Martin’s presence in a gated community was in and of itself suspicious and thus understandably fear-inducing for George Zimmerman.  This type of attitude traumatizes and stigmatizes African Americans in general and would make an innocent African American a target of violence based on someone’s racist fears.

The one hundred fifty seven (157) page opinion, quoted below, that enjoins the NYPD from carrying out its stop and frisk program related to suspicion of trespass outside of certain privately owned buildings in the Bronx recounts stops and searches of countless minorities based on police officers’ observations of individuals “suspiciously pacing” outside of buildings, or entering or exiting buildings more than once, or making so-called “furtive” movements.  People simply going home or visiting friends or attending private parties were forced to stop and show identification, were frisked, and in many cases were handcuffed and taken away in police vehicles and questioned aggressively before being released without charges being filed. 

In granting an injunction against the practices, Judge Shira Scheindlin wrote:

            For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends or families, it is difficult to believe that residents of one of our boroughs live under such a threat.  In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.  

To convey the full impact of the program, Judge Scheindlin states in a footnote: “To echo language quoted by Justice Thurgood Marshall, the evidence in this case, “has evoked images of other days, under other flags, when no man traveled . . . without fear of unwarranted interruption.”  Ligon v. City of New York, Case 1:12-cv-02274-SAS-HBP (S.D.N.Y., filed Jan. 18, 2013).

The two forgoing examples make clear that African Americans live in a different world from whites, one in which they cannot merely assume the right to move about freely and to be in places where white people and those in authority take for granted that white people belong.  African Americans are often viewed with suspicion and have to justify or explain their presence in various areas where they legally “have a right to be.”  Stand your Ground Laws that authorize the use of deadly force in virtually any public location to prevent a perceived forcible felony exacerbate the anxiety with which African Americans already live and, I would argue, pose an actual threat to African Americans’ safety, as well as their emotional and mental health.  Further, such Laws, by providing immunity from civil and criminal prosecution for anyone who uses such force, based upon a “reasonable fear” or reasonable belief embolden those who may have a propensity to use such force and provide too much of a safe harbor to those who act out of confusion or mistake, given our nation’s continuing struggle with racial bias.  The social impact of these laws thus is tremendous.

IV.       Conclusion

            Because the Stand Your Ground Laws are having, and will continue to have, a disproportionate impact upon African American men and women as well as the communities of which they are a part, all who believe in freedom and justice for all should join in efforts to repeal the existing Laws and to prevent the enactment of similar laws in other states. 

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[1]               Richard Dool, “Who are the Zimmerman Jurors?” HLNtv.com, June 24, 2013.  Retrieved from http://www.hlntv.com/article/2013/06/20/who-are-jurors-george-zimmerman.

[2]               See, e.g., Nicole Flatow,  “Why Stand Your Ground Is Central To George Zimmerman’s Case After All,” ThinkProgress, July 15, 2013, http://thinkprogress.org/justice/2013/07/15/2301621/why-stand-your-ground-is-central-to-george-zimmermans-case-after-all/. 

[3]               As of this writing, approximately two states have enacted stand your ground laws.

[4]               See generally Leonard Steinhorn and Barbara Diggs-Brown, By the Color of our Skin: The Illusion of Integration and the Reality of Race (1999).   

[5]               Fla. Stat. § 776.013(3) (Emphasis added).

[6]               Fla. Stat. § 776.032(1).

[7]               Fla. Stat. § 776.032(3).

[8]               See, e.g., Adam Weinstein, “How the NRA and its Allies Helped Spread a Radical Gun Law Nationwide,” Mother Jones (June 7, 2012), at http://www.motherjones.com/politics/2012/06/nra-alec-stand-your-ground.

[9]               Id.

[10]             Hundley, Kris, Susan Taylor Martin and Connie Humburg, “Florida 'stand your ground' law yields some shocking outcomes depending on how law is applied,” Tampa Bay Times (June 3, 2012), at http://www.tampabay.com/news/publicsafety/crime/article1233133.ece

                 

[11]             Leonard Steinhorn and Barbara Diggs-Brown, By the Color of our Skin: The Illusion of Integration and the Reality of Race (1999).  Some likely will argue that, given the election of a Black President since the publication of By the Color of our Skin, Steinhorn and Diggs-Brown’s conclusion is no longer valid.  Before reaching that conclusion, however, consider the study of the impact of anti-Black racism on the approval of President Obama’s job performance, which found that “anti-Black attitudes increased 3.3 percentage points between 2008 and 2012, and pro-Black attitudes decreased by 4.8 percentage points during that time.”  Josh Pasek, Jon A. Krosnick, and Trevor Tompson, The Impact of Anti-Black Racism on Approval of Barack Obama’s Job Performance and on Voting in the 2012 Presidential Election 12 (Oct. 2012)(unpublished, available at: http://comm.stanford.edu/faculty/krosnick/docs/2012/2012%20Voting%20and%20Racism.pdf.

[12]             See, e.g., Thomas Nelson Page, Red Rock (1898); D.W. Griffith, The Birth of a Nation (1915), which promoted the image of Black men as savages who attempted to rape white women. When the book was made into a movie, it was endorsed by President Woodrow Wilson, who reportedly declared the film’s theme to be true. 

[13]             Stone Phillips, “15 Years of Dateline,” at http://www.nbcnews.com/id/19562622/ns/dateline_nbc/t/stone-phillips-years-dateline/.

[14]             Id.

[15]             Lydialyle Gibson, Shooters Choice, U. Chi. Magazine 99.6 (2007), at http://magazine.uchicago.edu/0778/investigations/shooters_choice.shtml

[16]             Leonard Steinhorn and Barbara Diggs-Brown, By the Color of our Skin: The Illusion of Integration and the Reality of Race., at 172 (1999). 

[17]             Wormser, Richard, “D.W. Griffith’s The Birth of a Nation (1915)” in PBS, “The Rise and Fall of Jim Crow,” at http://www.pbs.org/wnet/jimcrow/stories_events_birth.html

[18]             Soon after Florida passed its law, the American Legislative Exchange Council (“ALEC”) adopted and approved model legislation with substantially the same language as the Florida law. 

[19]      Tampa Bay Times’ Florida’s Stand Your Ground Law Database (regularly updated), at http://tampabay.com/stand-your-ground-law/.