Sunday, May 27, 2018



Elizabeth Esther Berenguer, The Color of Fear: A Cognitive-Rhetorical Analysis of How Florida's Subjective Fear Standard in Stand Your Ground Cases Ratifies Racism , 76 Maryland Law Review 726 - 746 (2017) (154 Footnotes Omitted) (Full Article)

It must be remembered that the visibility of race was used as a tool to consolidate domination, to seize land, and to recruit and extract mass labor. All this is still going on today. The racism of the past is still active in the present.


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The suspicion heuristic has been used to analyze self-defense statutes that employ a reasonable person standard for evaluating the legality of the use of force. To summarize, the suspicion heuristic “suggests that using race as a proxy for suspicion is not unusual or unexpected.” Therefore, even in hindsight, the use of force seems more reasonable when the victim is a person of color, especially a Black man, than when the victim is White. Under a reasonable person analysis, courts excuse or justify behavior consistent with these kinds of typical mistakes that the average person could make. The positivist model suggests that it would be unfair to punish individuals for acting consistently with commonly held beliefs and “that punishment should be reserved for those who make mistakes that the average person could have avoided.”

The failure to punish behavior consistent with the suspicion heuristic, however, is problematic for at least three reasons. “First, typical beliefs are not necessarily morally correct or just. ... Second, characterizing mistakes facilitated by the heuristic as reasonable represents a judgment that the mistake is acceptable. ... Third, applying the positivist model to cases implicating the suspicion heuristic is problematic because the heuristic is *741 pervasive.” This Section demonstrates that these problems are magnified in jurisdictions that employ a subjective standard to evaluate the legality of use of force.

Although the reasonable person standard is the majority rule for most Stand Your Ground laws, Florida's codified Stand Your Ground laws call for a subjective analysis. The three relevant statutes are Sections 776.012, 776.013, and 776.032. Section 776.012 codifies “Stand Your Ground” in that it permits the use of force, without imposing a duty to retreat, when “the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful [or deadly] force.” Section 776.012 codifies the “Castle Doctrine” and creates a presumption that an individual “held a reasonable fear of imminent peril of death or great bodily harm” when acting in self-defense in the person's home or vehicle. Section 776.032 codifies “Immunity” and prevents prosecution of anyone acting pursuant to Stand Your Ground or the Castle Doctrine.

*742 Prior to 2005, Florida's self-defense statutory scheme imposed a duty to retreat on individuals who reasonably feared the threat of violence outside the castle, and reasonable fear was measured by the reasonable person yardstick. Since 2005, however, a person who experiences a threat is no longer required to retreat when threatened, and the question is no longer whether a reasonable person would have felt afraid under the circumstances. Rather, the question is whether this person's subjective fear was reasonable based on that person's individual perceptions and experience. This conclusion becomes obvious when the Stand Your Ground statute is read en pari materia with the immunity statute.

Although Section 776.012 utilizes the phrase “reasonably believes,” immunity would have no operative effect if the person using force were required to justify the act under a reasonable person standard. In Stand Your Ground, the legislature intended to create broad protections for individuals who believe it necessary to use force against another. In lobbying for its passage, Marion Hammer (then president of the NRA and author of the legislative scheme) told Florida lawmakers that “[y]ou can't expect a victim to wait before taking action to protect herself, and say: ‘Excuse me, Mr. Criminal, did you drag me into this alley to rape and kill me or do you just want to beat me up and steal my purse?”’

The whole purpose of immunity is to ensure that a victim is not required to justify the belief that the Other is a Criminal who intends to harm. The immunity statute reflects this intent that people claiming self-defense ought not be prosecuted at all. As recently as October 2015, the legislature proposed legislation that would clarify that “[i]mmunity from prosecution is *743 different than the defense of justifiable use of force. Essentially, immunity absolves a person from criminal liability and the person has no risk of conviction of the crime for which immunity has been granted.”

In essence, the reasonable person standard renders the immunity statute entirely meaningless in Florida because every victim would have to satisfactorily explain to some authoritative body, presumably a court, the circumstances surrounding the belief so that a determination could be made as to its reasonableness. In other words, figuring out whether a fear is objectively reasonable necessarily requires prosecution, which wholly circumvents and effectively nullifies the immunity statute. On the other hand, applying a subjective standard would not demand that a prosecution occur in every case because law enforcement would be required to accept the victim's assertion of fear absent evidence that the fear did not in fact exist.

The subjective fear standard, however, when viewed through the lens of the suspicion heuristic, still suffers from the three previously identified problems: (1) it allows cases to be decided based on beliefs that “are not necessarily morally correct or just”; (2) it condones “mistakes facilitated by the heuristic as reasonable”; and (3) allows the underlying biases to continue permeating society. What is more, these problems were salient at the creation of the law and persist now in its operation.

Florida's Stand Your Ground was designed to protect “innocent people” from prosecution when they protected themselves from Criminals. The research and debate leading to the laws' enactment reveal the pervasiveness of the suspicion heuristic. The legislature advanced an exaggerated story about James Workman who had shot and killed someone he believed was attempting to break into his camper. Although Mr. Workman was never charged, proponents of the bill employed code words to generate fear that Innocent (read: White) People live in perpetual danger of attack by Criminals (read: Blacks). The solution to this danger, they said, was twofold: (1) arm “ourselves” (Us=Whites) against “them” (Other=Black); and (2) protect Us from prosecution when we kill the Other. This narrative took root because *744 the pervasiveness of the suspicion heuristic made the story “easy, familiar, and true.”

Furthermore, the legislature sought to normalize and cast as reasonable the notion that Innocent People should be able to kill Criminals without consequence. Though not morally correct or just, Criminal is synonymous with Black Man. Regardless of whether members of the legislature consciously rejected the stereotype, they must have been unavoidably affected by it. The fear response triggered by the code words and narrative would have been a very real experience to the legislators as they digested the Workman/Innocent vs. Criminal narrative. Furthermore, the desire to completely absolve the Innocent of criminal liability communicates acceptance of the suspicion heuristic and the Black Man as Criminal.

As applied, the very existence of the law condones and perpetuates bias. By immunizing the Innocent from prosecution, the law ratifies violent behavior triggered by irrational yet uncontrollable fear of the Other. Numerous studies show that when confronted by a Black man, most human beings experience a strong negative emotional reaction in the amygdala. This biological response reveals deeply entrenched beliefs about Black men that have been perpetuated over centuries. The suspicion heuristic is pervasive and inescapable even by those who consciously reject racism and bias. If even well-trained officers are unable to stop the biological implicit bias response, certainly lay individuals who are not trained at all will be even more susceptible to the fear, however irrational, automatically generated by the amygdala.

Additionally, Florida's Stand Your Ground signals to the public that the suspicion heuristic is acceptable. The law seeks to absolve Innocent People of criminal liability when they kill Criminals. The immunity statute communicates that behavior consistent with the suspicion heuristic ought not be punished, effectively condoning the suspicion heuristic itself. The law assumes Innocent People possess beliefs that are moral, just, and correct, but the suspicion heuristic informs us that beliefs about Criminals are not necessarily moral, just, or correct. In fact, stereotypes about Criminals have created dangerous collective cultural beliefs that Blacks are less worthy than Whites.

Moreover, Florida's Stand Your Ground perpetuates implicit bias in the most insidious of ways. Implicit bias operates silently and below the surface. *745 Most individuals are unaware of their own biases, and the theory of embodied rationality informs that even those who are aware of their biases cannot help but be impacted by them. In the absence of immunity, individuals are at least forced to question the rationality of their behavior. Knowing that prosecution is a risk when you kill someone tempers your behavior. It forces you to more carefully assess whether the fear even exists. In Florida, though, the law now protects individuals from being questioned about the reasonableness of their claimed fear, so their need to self-assess the rationality of the fear itself is diminished. The result is that the suspicion heuristic is not being questioned either externally or internally. Racism is therefore perpetuated because the silent, below-the-surface implicit bias is further hidden from consciousness because there is no reason to question its very existence.


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Associate Professor of Law, Campbell University, Norman Adrian Wiggins School of Law.


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