Wednesday, April 06, 2005

Self-Defense and "The Reasonable Racist"

Florida just passed a law which would codify "the right [of a citizen] 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."

I'm very conflicted about this. On the one hand, it does seem to be somewhat reasonable. Someone firing a gun in self-defense from a criminal assault should not have to fear criminal prosecution. That's just common sense, and it should be codified in law.

On the other hand, I just can't read the bill and get Jody D. Armour's "reasonable racist" hypothesis out of my head ("Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes," 46 Stan. L. Rev. 781 (1994)). She tells the following hypothetical:
It is a stormy night in a combined residential and commercial neighborhood in a predominantly white upper-middle-class section of a major city. The time is 10:30 p.m. Although most of the fashionable shops and boutiques in the neighborhood have closed, the neighborhood bank contains an automatic teller. The machine is located in a lobby between two sets of glass doors; the first set opens directly into the bank and is locked at closing each day, while the second leads to the public sidewalk and remains open twenty-four hours.

A middle-aged resident of the neighborhood enters the bank's lobby, inserts her bank card into the machine, and requests $200. As she waits for her transaction to be processed, the woman suddenly notices a figure moving directly toward the lobby from across the street. Focusing her full attention on the approaching figure, she notes that the person is a young man (at most twenty-something); that he is wearing a trench coat with an upturned collar and a tarpaulin hat pulled down even with his eyes (perhaps in deference to the pouring rain); and that he is black.

The trench coat-clad young man glances down the deserted street as he reaches the lobby and then enters, pushing his right shoulder against one of the swinging glass doors. As he pushes the door open, he unbuttons the collar of his trench coat with his right hand and reaches into the coat in the direction of his left armpit. With his eyes focused on the space beneath his coat into which he is reaching, he takes hold of something and begins to withdraw it.

Panic-stricken at the image before her and conscious of the rhythmic clicking of the automatic teller counting out ten fresh clean twenty-dollar bills, the woman pulls a pistol from her purse and levels it at the entering figure. As the young man looks up from his coat, he sees the pistol trained on him and reflexively thrusts his right hand - which now contains a billfold retrieved from his inside breast pocket - out in front of him while shouting at the woman not to shoot. Perceiving what she takes for a handgun thrust in her direction, together with the man's unintelligible loud shouts, the woman shoots and kills the black man.

In claiming self-defense, the woman may argue that the black victim's race is relevant to the reasonableness of her belief that she was about to be attacked. Her claim might be based on any of three distinct arguments. First, she could claim that it was reasonable to consider the victim's race in assessing the danger he posed because most people would do so. She might introduce studies or anecdotes demonstrating the frequency with which Americans make assumptions about an individual's character on the basis of race, and argue that she should not be punished for basing her response on the widely held belief that blacks are more prone than whites to be criminals. Second, she could claim that, independent of typical American beliefs, her consideration of the victim's race was reasonable because blacks commit a disproportionate number of violent crimes and therefore pose a greater statistical threat. In framing this argument, she would show that quantifiable statistical discrepancies exist between the crime rates of blacks and nonblacks, and she would assert that she knew of, and reasonably relied on, these statistical probabilities when deciding to shoot.

Finally, if the woman had previously been violently assaulted by a black individual, she might claim that her overreaction to the victim's race was reasonable in light of her earlier traumatic experience. One recent case accorded legal weight to such "negrophobia" by holding that an ordinary person assaulted by an anonymous black individual might develop a pathological fear of all blacks sufficient to justify an award of disability benefits. Invoking the same psychological proposition, our defendant might claim that her negrophobia is relevant to the reasonableness of her reactions to the supposed assailant.

Incidents such as the "New York Subway Vigilante" case (People v. Goetz, 58 N.Y.2d 96) and the Rodney King verdict suggest that courts--and especially juries--would take such "reasonable racist" arguments very seriously. Even if only on the subconscious level, many people still identify with a deep-seated fear of blacks, especially young black men. Allowing for violent assaults based on the "reasonab[e] belie[f] it is prevent death or great bodily harm" would give "reasonable racist" claims far more weight. One could certainly argue that the women in the hypothetical, if not acting reasonably, was not necessarily acting totally unreasonably either. It was a dark, stormy night, she was frightened, his billfold looked like a gun in the heat of the moment. However, I am very skeptical that a black defendant in a similar case would be granted the same courtesy. In criminal proceedings, black men, whether the victims (such as in the Rodney King or Goetz case) or the accused, are uniformly portrayed as "savages," "vultures," "larger than life," possessing "superhuman strength," or other such descriptions designed to emphasize their danger and threat. One of the officers in the Rodney King case, for example, testified that King was a "monster-like figure akin to a Tasmanian devil." These views are in congruence with deeply ingrained social stereotypes, and thus are extremely difficult to counteract at trial. The net effect is to ratify latent racism in society, and make it more likely that white-on-black crimes will go unpunished. Essentially, I believe that the women in this story would stand a very good chance of acquittal, but if the races were reversed, then the defendant would not. That type of racial disparity disturbs me greatly.

No comments: