Become a Patron! 


 

Abstract

Excerpted From: Addie C. Rolnick, Defending White Space, 40 Cardozo Law Review 1639 (April 2019) (310 Footnotes) (Full Document)

AddieRolnickIn the spring of 2012, a resident of a majority-White neighborhood of gated and planned subdivisions shot and killed an unarmed Black teenager. The killer suspected the teenager was trying to break into his house and shot him through the back door. The killer claimed self-defense. His claim was never evaluated by a jury, though, because police and prosecutors saw the claim of self-defense as strong enough to not warrant a charge.

The teenager's name was DeMarcus Carter. He lived in Las Vegas, Nevada, and he died in a suburban neighborhood called Summerlin. His killer told police that he saw Carter outside his back door and believed Carter was trying to break into his home. Unlike the death of Trayvon Martin in Florida only a month earlier, Carter's death received very little media coverage, and none of the coverage raised questions about the validity of the killer's self-defense claim. The local newspaper and police department, which in 2012 collected and publicized detailed information about the circumstances and legal outcome of every police killing, did not similarly track private self-defense killings.

Nevada is not a Southern state known for a deep history of state-sponsored segregation. Las Vegas, like other Sun Belt cities, is often touted as a model of integration, and the exponential population growth that made it a major urban center came well after the end of legal segregation. Summerlin itself was undeveloped desert until the 1990s. Unlike Florida, which adopted a high-profile package of amendments to expand its law of self-defense shortly before Martin was killed, Nevada had recently rejected some of the most far-reaching proposals for amendments to expand its self-defense law. Nevada has long had a stand your ground rule, which eliminates the duty to retreat before using deadly force, but Carter's killing was legal under an even older rule: Nevada's defense of habitation law, which authorizes the resident of a home to use deadly force to defend against a person anywhere outside the home if that person appears to be planning to break into the home. If Martin's death represented the failure of the justice system--despite a national outcry--to punish the killer of an innocent “teenage boy with his packet of candy and sweet tea,” Carter's death was an example of the unexceptional cases in which the legal system and the public accepted a neighborhood killing as inevitable and legal.

In the years since Martin and Carter were killed, scores of unarmed Black and brown people have died at the hands of people claiming self- defense. Many of the names are familiar: Michael Brown, Eric Garner, Jordan Davis, Tamir Rice, Sean Bell, Walter Scott, Terence Crutcher, Philando Castile, Jordan Edwards, Charleena Lyles, Loreal Tsingine, Alton Sterling, Keith Lamont Scott, Botham Jean, Stephon Clark, Lacquan McDonald. Others may not be: Kriston Charles Belinte Chee, John Williams, Renisha McBride, Rumain Brisbon, Cesar Arce, Jessica Hernandez, Charley Leundeu “Africa” Keunang, D'Andre Berghardt, Jr., Gabriella Nevarez, John Crawford III, Jonathan Mitchell.

Many died at the hands of police officers who claimed that their actions were reasonable--and therefore legal--responses to real or perceived threats posed by the victims. In most of the resolved cases, the officer was either not charged or was acquitted in the homicide. In response to these cases, the topic of police violence against minorities has generated a great deal of scholarly and public attention. Proposed solutions-- ranging from body cameras to greater federal oversight to anti-bias training for police--likewise focus on violence as a problem of policing.

Amid this national conversation about policing and criminal justice, however, insufficient attention has been paid to private violence. Martin, Carter, Chee, Arce, Mitchell, Davis, McBride, and many other unnamed victims were killed by private citizens. Like the police officers involved in other cases, many of their killers were not charged or were eventually acquitted. The legal claim involved in these cases is similar in many respects to the claims of police officers: in each case the killer claimed he feared the victim, and that this fear was reasonable under the circumstances. None of the reforms proposed to address police violence would have any effect on the private neighbor-on-neighbor violence that led to their deaths.

Instead, these killings force us to examine the traditional doctrine of self-defense, the extent to which racial fear is embedded in the law, and the significance of the trend among state legislatures to expand the right of self-defense even as more evidence emerges of its disproportionate impact on minorities. These cases shift the focus from police accountability to the role of private parties in enforcing racial exclusion and hierarchy. They also complicate the picture of the relationship between private violence and state law.

While policing and incarceration are the most visible institutions through which the government regulates and authorizes violence, which critics argue is often deployed in service of maintaining racial subordination, this Article reveals that substantive criminal law is another such institution. State criminal laws determine to a large extent what violence will be punished and what will be permitted. By expanding the categories of permissible violence, state legislatures can authorize private parties to carry out violence while appearing to reign in state-sponsored violence. This public-private distinction is significant when considering racial violence because state-sponsored race discrimination of any kind is prohibited by federal law, while private race discrimination, particularly violence, is illegal under federal law only in its most extreme and blatant forms.

This Article considers the role of self-defense doctrine in maintaining White residential spaces. Common law self-defense doctrine evolved in large part to secure the right of White men to protect their homes, families, and honor. The “reasonable fear” component of modern self-defense laws continues to reify our well-documented unconscious racialbias and reinforce cultural myths about Black criminality, even when we intend for the law to be race-neutral. Building on feminist and critical race theory critiques of self-defense law, this Article argues that the core doctrine of self-defense has been strengthened and expanded to further insulate private violence in defense of home and family from legal scrutiny.

Modern state self-defense laws extend to a broad range of circumstances and physical spaces, especially in residential neighborhoods. These laws signal to private actors that they are free, if they legitimately feel threatened, to use violence to police their own realms. But these laws do not send a uniform signal to all actors. For White people living in White spaces--who can expect not to be feared by others in the course of everyday life and who appear to belong in White spaces--a robust right of self-defense suggests that it is desirable to protect one's home and neighborhood from intruders. For Black people in White spaces, whose bodies carry the weight of cultural myths about danger and criminality and who may at any time be viewed as suspicious, threatening, or out of place by their neighbors, self-defense laws are a reminder that the law condones, and even encourages, fear-based violence against them. The laws create a framework that legitimates White fear of a stranger who looks racially out-of-place and condones violence based on that fear. This framework in turn helps normalize neighbor-on-neighbor surveillance.

The cycle of fear, surveillance, and violence is also one that can be abused. Even if a person is not actually threatened or afraid, she can invoke the framework of fear based on racial out-of-placeness and can expect that police or a jury will be sympathetic. By underscoring Black vulnerability and White ownership, self-defense laws further inscribe the racialized character of White neighborhoods in an era when property laws no longer do so explicitly.

Part I of this Article considers the relationship between race and self-defense law. First, it argues that stranger self-defense cases are always “about race” in the sense that they are about individual and shared fear and are therefore uniformly vulnerable to widely-shared racialbiases. Second, it argues that laws that expand the right of self-defense, from longstanding defense of habitation laws to more recently adopted stand your ground and immunity laws, operate together to make self-defense available in more situations and easier to claim than the core doctrine might suggest. The expansion is also literal, especially in the residential neighborhood context, in that these laws enlarge the physical space one can legally protect using lethal force.

Part II explains how self-defense law can transform private fear into state-sanctioned violence. First, the Article situates this claim in the larger context of residential segregation, which has always been enforced through cooperation between state and private actors, such that distinction between de jure and de facto segregation is mostly imaginary. Second, it considers the problem of new White spaces. These neighborhoods cannot easily be linked to past state-sponsored discrimination in property law or housing policy (e.g., legal segregation, redlining, or racially restrictive covenants) because they post-date the worst of those policies. To the extent that segregation is acknowledged, it is attributed only to private preferences. Yet, these private preferences are expressed in and enforced by neighbor-on-neighbor harassment, profiling, and violence, with law as a primary tool of harassment. Third, it argues that, by preemptively legalizing private home defense and loudly signaling that legality with each new enactment, self-defense laws sanction the most severe instances of private violence and offer a framework that legitimates fear-based violence and encourages the profiling and reporting that precedes that violence.

The purpose of this Article is to sketch the contours of an important but undertheorized relationship between residential segregation, private violence, and state criminal law. I hope it will draw renewed attention to the importance of state substantive criminal law as a site of racial subordination and a potential area for reform. More specifically, I aim to highlight the central role of self-defense doctrine in shielding, legalizing, and encouraging private racial violence. The Article does not offer proposals for reform because determining which reforms will be effective will require that states collect and make available data on self-defense claims, and that legislatures carefully weigh the harms and benefits of each change to self-defense law, including harms that might weigh differently on different people. By explaining one such potential harm, I hope this Article invites a deeper examination of the racial contingency of self-defense laws.

[. . .]

State self-defense laws provide a legal mechanism through which residents of a neighborhood can surveille, intimidate, punish, and even remove their neighbors. These laws have demarcated progressively wider spaces that a person is legally permitted to protect with deadly force, effectively allowing residents of White neighborhoods to police people who stand out in those neighborhoods because of their race and ensuring that those racially-salient people never fully belong there. These laws imbue split-second assessments of threat--demonstrated to be racially contingent, even if unconsciously so--with the force of law. They also provide cover for private citizens acting out of more malicious intent. When states expand the right of self-defense, removing more situations from review and adding shortcuts to ensure that it applies to more scenarios, those states invite private individuals to help law enforcement by policing their own domains, even authorizing the use of lethal private violence to do so. In White spaces, these laws remind White residents of their authority and Black residents of their vulnerability.

Acknowledging the race-specific meaning of self- and home-defense laws does not necessarily determine whether any particular self-defense law is desirable. For example, some legislators might choose to support a law with potentially discriminatory effects if the law is invoked rarely, has a significant deterrent effect, and if the data shows that the racial effects are minimal in practice. To make such an assessment, though, a legislator must consider the race-specific meanings of self-defense laws in the neighborhood context. This might lead to requests for quantitative and qualitative data, including stories from Black residents of White spaces, about how these laws are used and what they mean to people. While I suspect that many expansion laws serve no useful purpose and should therefore be rejected because of the racialized signaling described here, a full assessment of desirability of specific laws, or further proposals for doctrinal reform, is beyond the scope of this Article.

State legislators confronted with proposed laws to expand self-defense should be aware of the way these laws can and do function in White neighborhoods. At a minimum, lawmakers should consider what expanded laws would signal to White and Black residents of White spaces, as well as the potential for raciallybiased effects. While race will not be their only consideration, they should weigh these questions when determining the costs and benefits of any proposed change to the criminal law. As a corollary, states should better track how their self-defense laws are used. Lawmakers must have data that tells them how often these laws are used, who claims their benefit, and what kind of killings are legalized (including those found justified by a jury as well as those not charged), where they occur, who is killing, and who is dying. Members of the public should pay careful attention to any proposed amendment to state criminal law that would legalize more private killings, especially when there is no clear demonstration that existing law has been applied too narrowly. In the case of expansions that do not address a gap in existing law, the expressive effect described here is especially important to consider.

The Trump Administration in 2017 signaled clearly that crime control and support for law enforcement would be federal policy priorities for at least the next four years. The administration envisions the federal role as one of supporting, rather than monitoring and restraining, state and local criminal justice systems. It also envisions private citizens as important partners to local police. The policy statement on the White House website highlights the relationship between official and private violence by linking support for law enforcement with private exercise of Second Amendment rights and underscoring the role of this public-private partnership in protecting parents, children, and senior citizens against immigrants, gangs, and “the rioter, the looter, or the violent disrupter.”

This kind of public-private law enforcement partnership, and the racially-coded description of its targets, recall the Reconstruction and Jim Crow eras, when private violence worked hand-in-hand with local law enforcement to enforce racial hierarchies and the Department of Justice arose out of a need for federal intervention. Unlike its predecessor, however, the current Department of Justice is likely to serve as a facilitator, rather than a disruptor, in this relationship. One manifestation of this new federal-local-private collaboration will be the use of state criminal laws, including self-defense laws, to sanction more private violence, and a parallel lack of federal civil rights enforcement. Because they reflect local norms and long-held prejudices, state criminal laws have often been used in the past to target people of color and to enforce racial hierarchies, and we can expect that they may be used this way in the future. 


Professor, William S. Boyd School of Law.