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D. Marvin Jones

Abstracted from: D. Marvin Jones, “He's a Black Male . . . Something Is Wrong with Him!” The Role of Race in the Stand Your Ground Debate, 68 University of Miami Law Review 1025 -1050 (Summer 2014) (146 Footnotes Omitted) (Full Text)

That's one of the great frustrations of African-American life, those times when you are standing right there, minding your business, tending your house, coming home from the store, and other people are looking right at you, yet do not see you.  They see instead their own superstitions and suppositions, paranoia and guilt, night terrors and vulnerabilities. They see the perpetrator, the suspect, the mug shot, the dark and scary face that lurks at the open windows of their vivid imaginings. They see the unknown, the inassimilable, the other.  Leonard Pitts Jr. 

D Marvin JonesGeorge Zimmerman claimed to know quite a lot about Trayvon Martin.“This guy looks like he's up to no good, or he's on drugs or something,” Zimmerman tells the 911 operator. “He's just staring, looking at all the houses. Now he's coming toward me. He's got his hand in his waistband. Something's wrong with him.”

Zimmerman described Martin as wearing a hoodie and sweatpants or jeans. He continues: “He's coming to check me out. He's got something in his hands. I don't know what his deal is. Can we get an officer over here?”

“These assholes. They always get away,” he says to the operator.

But Zimmerman had never met Trayvon Martin. The only information he had about the seventeen-year-old was that he was wearing a hoodie and he was black. Zimmerman also had his observations about this black youth walking home: “He's just staring, looking at all the houses.” Thus Martin had a combination of appearance and innocent behavior. Based on nothing more than this, Zimmerman “knew” that Trayvon posed some kind of imminent danger. “I don't know what his deal is. Can we get an officer over here?” Zimmerman goes on to refer to Trayvon as an “‘asshole.”’ This reflects both a moral judgment and a high level of hostility. What made Trayvon suspicious? What made him an “ass--hole?” When he says, “these assholes always gets away,” what explains this tacit hostility?

Zimmerman is exhibiting a set of racial assumptions. To see that racism is involved, one need only ask what would have happened instead if Justin Beiber had strolled through the Sanford neighborhood. Would Zimmerman have pursued him, confronted him, and later shot him? This, in my view, is racism. But it is not just black and white. Race has become intersectional.

A. Racial Profiling in the Twenty-First Century: From Bigger Thomas to Urban Thug

In the novel Native Son, Bigger Thomas brutally murders two whites. According to one account, “a cordon of five thousand police, augmented by more than three hundred volunteers, was [immediately] thrown around the Black Belt.” Soon “[s]everal hundred Negroes resembling Bigger Thomas were rounded up from South Side ‘hot spots'; they are being held for investigation.” One commentator has noted that this scene means that “[f]or everyone who is white, all African Americans are somehow linked to Bigger Thomas.”

Similarly, Patricia Hill Collins writes:

The controlling image of Black men as criminals or as deviant beings encapsulates this perception of Black men as inherently violent and/or hyper-heterosexual . . . . [T]his representation is more often applied to poor and working class men than to their more affluent counterparts, but all Black men are under suspicion of criminal activity or breaking rules of some sort. This undifferentiated racial fear of black men drove racial violence in the form of lynching, particularly in cases like that of Emmett Till, a young man who was lynched because he “wolf-whistled” at a white woman. This linkage between images of “brutish” black men and racial fear describes the problem of black men during the era of segregation and the early civil rights era. As Collins notes, this fear is still there.

But by the 1980s, this racial stereotyping had been given a sociological justification. Ed Koch, a former mayor of New York City, stated the following:Today, most whites, myself included, would feel very uncomfortable in a totally black neighborhood, particularly at night. So the fear is not irrational. . . .

In New York City, [57%] of those in prison are black and [35%] Hispanic. According to Department of Justice statistics, [45%] of violent crimes are committed by black males . . . .

In the twenty-first century, the problem of profiling is no longer a simple question of black and white. Just as Justin Beiber might have traveled home from the 7-Eleven safely, so too, I believe, would have a well-dressed black youth in polished loafers, cotton Dockers, an Izod Lacoste shirt, and a sweater around his neck. Culturally, he would have fit in. If Trayvon did not fit in, it was because race has become more complicated. Racial identity is more fluid, more of a spectrum than two poles in space. In the post civil rights era, the color line has faded. Barack Obama is a second-term president. Deval Patrick is Governor of Massachusetts. Eric Holder is Attorney General. Black police officers are commonplace in major urban areas. These black police officers--like those on our screens in television shows like The Wire--do not inspire fear. But Trayvon Martin, an unarmed black youth iconically dressed as he was, did. The same moral panic, which once targeted all blacks, has refocused on black males in urban areas with saggy pants and hoodies.

In our media culture, the image of Trayvon in his hoodie staring into the camera at the 7-Eleven is the image of an urban thug. This image represents the “intersection of color and cultural alterity.” It reflects the fact that while we may have erased the color line, we have a cultural divide between the black majority in the inner city and blacks and whites that live in suburban enclaves. We have not transcended race; we have recoded it as something that is not only a color difference but also a cultural difference. Culture, in turn, is deeply associated with certain spaces. Dress styles like saggy pants and hoodies invoke images of the ghetto, which is deeply associated with criminals and crime. The combination of race and this urban cultural style of dress defines a stereotype that in many ways is our new racial “other.” References to race in this Article implicitly refer to the intersectional phenomenon that race has become in the early twenty-first century.

B. From Racism as Hate to Reasonable Racism

What makes Zimmerman's assumptions about race particularly dangerous is the fact that Zimmerman is expressing racism not as hate (aversive racism but racism as a claim of knowledge. This latter form of racism is sometimes called--oxymoronically--reasonable racism. Reasonable racism is the view that the stereotypes about black men are true. It inheres in “the notion that black males really do share a dangerous tendency to violence, or mayhem, or crime,” in the notion that this stereotyping is really “common sense.” In Zimmerman's case, this notion that the stereotypes were true seemed to justify his actions. As Jody Armour has written, this notion can also function as excuse: “The ‘Reasonable Racist’ asserts that, even if his belief that Blacks are ‘prone to violence’ stems primarily from racism . . . he should be excused for considering the victim's race before using force because most similarly situated Americans would have done so as well.”

As Alan Freeman has noted, our ideas about race trace back to the 1950s. During that time, blacks were knocked down by water hoses, bitten by police dogs, and beaten by southern police wielding cattle prods. Not only has race changed in the last fifty years to become more than black and white--something that involves the intersection of race and culture, for example--but racism has also changed. The racism of the 1950s was about hate. The racism of the twenty-first century, particularly in the context of racial profiling, is racism dressed up as common sense. While racism as hate could be described as a problem of individual irrationality, the notion that racism is reasonable appeals to notions of rationality and even science. Thus, the reasonable racist denies that he is acting on emotion. He claims to know something about the black people who he targets for violence or arrest based on who they are. A precursor to Zimmerman was Bernhard Goetz:Canty [and four other young men] approached Goetz . . . and stated “give me five dollars.” Neither Canty nor any of the other youths displayed a weapon. . . .

. . . .

. . . When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot “tried to run through the crowd [but] they had nowhere to run.” Goetz then turned to his right to “go after the other two” . One of these two “tried to run through the wall of the train, but he had nowhere to go.” The other youth (Cabey) “tried pretending that he wasn't with the others” by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been “taken care of.” Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, “I said ‘you seem to be all right, here's another,”’ and he then fired the shot which severed Cabey's spinal cord.

Goetz stated he was confident that none of the young men was carrying a gun. When asked to explain why he shot them in light of this, he said that “he knew from the smile on Canty's face they wanted to ‘play with me.”’ Following in the footsteps of Bernhard Goetz, Zimmerman made several “claims of knowledge” about Trayvon. He knew Trayvon was suspicious. He knew that Trayvon was a bad person who must not get away.

How did Zimmerman know all this about Trayvon--a person he had never met--just by watching him walk down the street in Sanford? The rationale--the anchor--to Zimmerman's claim of knowledge is common sense. By stating “these assholes always get away,” he was implying that we all know that this kind of person, like Trayvon, was dangerous and that Zimmerman did not need to see Trayvon commit a crime because it was “obvious” that Trayvon was a criminal. But the only distinguishing features about Trayvon were that he was black and wearing a hoodie.

Trayvon was, according to Derrida, an “already read text.” He was the cover of a storybook. We all know his type so well we can judge the book by its cover; we do not have to read the book.

When Zimmerman said of Trayvon Martin, “these assholes always get away,” Trayvon as an individual disappeared. He was reduced to the dangerous essence that Trayvon's race and appearance represented in the mind of Zimmerman. One philosopher refers to this as “mythic” thinking:[T]he nuances of significance and value which knowledge creates in its concept of the object, which enable it to distinguish different spheres of objects and to draw a line between the world of truth and the world of appearance, are utterly lacking. . . . Instead of the dialectical movement of thought, in which every given particular is linked with other particulars in a series and thus ultimately subordinated to a general law and process, we have here a mere subjection to the impression itself and its momentary “presence.”

This essentialist reasoning is circular. “[W]e seem to be caught in a circular argument, but it is not the argument which is circular--it is the human condition in which we cannot extricate an ‘objective’ reality from our ‘subjective’ perception of it.” Trayvon was an urban thug based on assumptions about a group of people. Even if the assumptions about the group of people are correct, how did Zimmerman know if Trayvon was like the other members of the group? The answer is that Zimmerman mistook assumptions for facts. Why was Trayvon not entitled to be treated as an individual?

What is troubling here is not the racial character of Zimmerman's assumptions in themselves but the fact that those assumptions are widely shared. Zimmerman made his assumptions and choices as a kind of prediction: A jury of his peers would validate them. The fact that he received broad support--as evidenced by the hundreds of thousands dollars raised to fund his defense--was embraced as a hero in many circles and was ultimately acquitted speaks volumes about the social currency of Zimmerman's assumptions. Tragically, Zimmerman's racial assumptions are less the product of a “sick” mind than a reflection of a culture of fear that is deeply rooted in some segments of our society.

Fox News commentator Geraldo Rivera stated, “You dress like a thug, people are going to treat you like a thug.” This narrative was literally performed as elements of the media gratuitously portrayed Trayvon as a smoker of marijuana. According to an editorial by Andrew Rosenthal in the New York Times, the police disclosed material that suggested that Trayvon was suspended from school because he had “an empty baggie with marijuana residue.” Zimmerman's supporters circulated a “photo composite . . . showing a grinning George Zimmerman in a suit and tie next to a young, shirtless black man flipping off the camera.” One blogger referred to Trayvon as “a thug, vandal, burglar, pothead and/or drug dealer.” One enterprising Zimmerman supporter created a silhouette of a black man in a hoodie to be used on a gun range:

According to a report from Florida TV news station WKMG, an unidentified entrepreneur aimed to profit by selling paper gun targets depicting the unarmed teenager slain in February. The targets, which were advertised for sale online until Friday, feature a hoodie with crosshairs over the chest--the place where George Zimmerman shot Martin at point-blank range. While there's plain black in lieu of Martin's face, tucked into the hoodie's arm are a bag of Skittles and can of iced tea like the kind Martin was carrying on that fateful night.

Despite its implicit racial message, the silhouette sold out very quickly. This “urban thug” narrative resonated as a subtext throughout the stand your ground debate. It also resonated during trial. Zimmerman's attorney created a “thug defense,” portraying Trayvon as a sinister figure lurking and menacing. O'Mara apparently read the sentiment of the jury well, because Zimmerman was acquitted. One juror in Zimmerman's case added, “Zimmerman's ‘heart was in the right place.”’

In Part II: The Culture of Fear, I want to begin by tracing this “urban thug” image to its source in popular culture. It is a function of a combination of middle class anxiety about the deteriorating urban scene and a spate of films and television images, which created a grotesquely racialized image of urban crime. I want to also contrast this image with reality--with figures and statistics to show how rarely black men fit this socially constructed image.

But Zimmerman's logic is rooted in more than the fringes of popular culture.

C. Visibly Lawless People

Zimmerman's logic on the fateful night was that here is, in front of him, a criminal type that he could identify as such by looking at him, and he should not be allowed “to get away.” If we strip away the racialism, in essence, Zimmerman is saying profiling is necessary, natural, and good. This is the very core of Zimmerman's defense and the defense of the brand of stand your ground vigilantism for which Zimmerman was a rallying icon.

This idea that profiling “is a good thing” predates the controversy in Sanford. I trace it to a public discourse about race that has been taking place among segments of academia, police departments, and the media in the context of “zero tolerance” and an ongoing debate concerning preventive punishment. More specifically, in an effort to justify Chicago's anti-gang ordinance, the Chicago police openly claimed that profiling was reasonable and efficient. Their argument was anchored in large part on a notion called “visibly lawless people.”

The fallacy of this argument about visibly lawless people is that it presupposes the profile exists independently of police practices. On the contrary, in Part III.A: Visible Lawlessness and Harm, I will present evidence that this class of people is socially constructed by the police themselves through practices that are discriminatory.

D. Marvin Jones is a civil rights lawyer who became a teacher of law. He is Professor of Law at the University of Miami where he teaches Constitutional Law and Criminal Procedure. His latest book is Fear of a Hip-Hop Planet: America's New Dilemma (2013).