“What I knew then, what black people have been required to know, is that there are few things more dangerous than the perception that one is a danger.”
—Jelani Cobb, Between the World and Ferguson1
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, however, insufficient attention has been paid to private violence. This Article examines the relationship between race, self-defense laws, and modern residential segregation. The goal is to sketch the contours of an important but undertheorized relationship between residential segregation, private violence, and state criminal law. By describing the interplay between residential segregation and modern self-defense law, this Article reveals how criminal law reinforces racial subordination in areas where it is nominally prohibited by law.
While the laws governing stranger self-defense are facially race-neutral, self-defense is assessed only according to whether the defendant’s fear is reasonable to the reviewing prosecutor, judge, or jury. Research on unconscious bias and cultural myths about criminality demonstrate that fear is racially contingent. One factor that can support both subjective and objective assessments of threat is whether a person looks “out of place,” making a Black person in a White neighborhood even more likely to the be the object of fear. This relationship between race, fear, place, and legal violence sets a framework that shapes a continuum of neighborhood interactions, from surveillance to calling 9-1-1 to engaging in lethal violence.
History elucidates this relationship. Self-defense evolved to protect the right of White men to defend their bodies, homes, families, and honor. Against this tilted backdrop, state legislatures strengthened and expanded the private right of self-defense by adding presumptions that relax its basic substantive requirements and alter the common law procedural approach to insulate more cases from judicial scrutiny. In the neighborhood context, modern self-defense laws signal to private actors that they are free, if they legitimately feel threatened, to use violence to police their own realms. But they do not send a uniform signal to all actors. For Black people in White neighborhoods, self-defense laws are a reminder that the law condones, and even encourages, fear-based violence against them. For White people living in White spaces, a robust right of self-defense suggests that it is desirable—a right and a duty—to protect one’s home and neighborhood from intruders. By underscoring White ownership, and increasing Black vulnerability, self-defense laws further inscribe already-segregated neighborhoods as White spaces in an era when property laws no longer do so explicitly.
INTRODUCTION
In 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.2 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,3 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.4 The local newspaper and police department, which in 2012 collected and publicized detailed information about the circumstances and legal outcome of every police killing,5 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,6 and the exponential population growth that made it a major urban center came well after the end of legal segregation.7 Summerlin itself was undeveloped desert until the 1990s.8 Unlike Florida, which adopted a high-profile package of amendments to expand its law of self-defense shortly before Martin was killed,9 Nevada had recently rejected some of the most far-reaching proposals for amendments to expand its self-defense law.10 Nevada has long had a stand your ground rule, which eliminates the duty to retreat before using deadly force,11 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.12 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,”13 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 brown14 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.15 In response to these cases, the topic of police violence against minorities has generated a great deal of scholarly and public attention.16 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.17 The legal claim involved in these cases is similar in many respects to the claims of police officers: in each case the killer claimed he18 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,19 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.20 The “reasonable fear” component of modern self-defense laws continues to reify our well-documented unconscious racial bias and reinforce cultural myths about Black criminality, even when we intend for the law to be race-neutral.21 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.22
Modern state self-defense laws extend to a broad range of circumstances and physical spaces, especially in residential neighborhoods.23 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.24 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,25 or out of place26 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.27
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 racial biases. 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.
I. THE LEGALITY OF PRIVATE VIOLENCE
When two strangers encounter one another in a backyard or on a neighborhood street, and one of them purposefully kills the other, self-defense laws provide the standard for determining whether the killing amounts to murder or manslaughter, or whether it is legally justified. The basic principles of self-defense say that killing is only legally justified if it is necessary to defend oneself against the threat of death or serious injury.28 In general, this means that the killer must have acted out of reasonable fear, whether or not the fear turns out to be correct.29 But these basic principles have been relaxed over time by laws that expand the doctrine of justifiable homicide.30 Several criminal law scholars have pointed out that stand your ground laws have dubious public safety benefits and a concerning potential for racial bias.31 As this Article explains, stand your ground laws are only one piece of a much longer story about states strengthening the right of self-defense, particularly in situations involving actual or suspected home intruders.32
Defense of habitation laws, which permit the use of deadly force against an intruder in the home—even absent clear evidence that the intruder intends to harm anyone—and castle doctrine laws, which provide that a person does not have to retreat before using deadly force against a home intruder, are the law in nearly every state.33 At least half the states also have stand your ground laws that authorize the use of deadly force against an aggressor in any place, such as a neighborhood sidewalk, even when retreat is possible.34 In recent years, many states have passed laws that further expand the right of self-defense by making it available in more situations and making it easier to claim and prove. These include extending home defense rules to vehicles and workplaces, establishing a presumption of justification every time a killer raises a claim of self-defense, and providing immunity in civil suits arising out of self-defense killings.35 Often advanced in state legislatures as a package, these laws permit an individual to use deadly force in defense of a larger and larger swath of space—from his person, to his home, his yard, and even to the streets of his neighborhood36—and require less and less evidence to substantiate the claimed fear. As an expressive matter, expanded self-defense laws seem to validate and encourage private violence in defense of body, home, and neighborhood.
Self-defense killings are a small subset of homicides overall, but statistics suggest they are an important category and that they operate in a particular way. According to the only nationally available data source on homicide trends37 collected by the U.S. Department of Justice’s Bureau of Justice Statistics, there were several hundred self-defense killings by private actors each year between 1980 and 2008.38 Self-defense killings by private actors increased between 2000 and 2008.39 Despite this increase, the number of justifiable homicides by private citizens was still much lower in 2008 than it was in 1980.40
Most civilian self-defense killings (55%) involved a person interrupting a crime in progress,41 and a substantial minority (41%) involved someone responding to an attack.42 The vast majority of justifiable homicides are committed with firearms.43
Federal data does not capture the full scope of self-defense killings.44 It is based on voluntary reporting of crimes known to law enforcement by state and local law enforcement agencies.45 Reports do not present justifiable homicides as a percentage of homicides in which self-defense was claimed, or include updates if the determination changes later in the legal process. The data thus does not tell us how often self-defense claims are successful. It also does not include location information.
A congressional review of the limited federal homicide data from 2001–2010 revealed that killings of Black people by White people were ruled justified 35% of the time.46 Killings of White people by Black people were ruled justifiable in only 3% of cases.47 Further analysis confirms that White on Black homicides are most likely to be ruled justified, while Black on White homicides are least likely to be ruled justified.48 In cases involving two male strangers and a firearm, the overall rate of justified homicides is higher, and the racial disparity is also greater.49 A study by the Marshall Project found that killings of Black men by White people (including private and police killings) were eight times more likely to be found justifiable than any other combination.50
Between 1980 and 2008, a majority of the people killed by private actors (59%) were non-White. To compare, a majority of the people killed by police in self-defense (60%) were White.51 (This number, of course, says nothing about whether the rates at which Whites and non-Whites are victims of police killing are proportional to population). While questions about “justifiable” police killings of Black people abound in the public discourse, these statistics suggest the law of private self-defense may also be responsible for legitimating Black deaths.52 While the numbers tell us little about the circumstances that led to each individual killing, they should at least raise questions about the role of racial bias in private self-defense law.
Trayvon Martin’s death by George Zimmerman’s bullet did raise these questions for some, leading to critiques of the expanded self-defense law that had been enacted by the Florida legislature a few years before Martin was killed, and of similar laws enacted by other states.53 Emphasis on relatively recent reforms implies that, without them, self-defense law would be race neutral. However, even without expansion laws, the focus on reasonable fear embedded in the law of self-defense means that it is inherently vulnerable to racial bias. Some of the most significant doctrines that strengthen the right to self-defense, thereby legalizing more deaths, are not recent at all. The legality of DeMarcus Carter’s killing, for example, likely hinged on Nevada’s century-old self-defense and defense of habitation statutes.54 Recent expansions might worsen the problem, but they did not create it, so repealing expansion laws will not solve it.
Rather, the potential for racial bias is built into the core doctrine of self-defense. This is because the question of whether private violence is justifiable, and therefore legal, centers on whether the killer feared the victim and whether that fear was reasonable.55 While many Americans expressly disavow racial bias, our psychological processes and cultural myths reveal an association between Blackness and threat.56 Mapped onto bodies, this tendency means that individuals may be more likely to fear Black strangers, and police, prosecutors, judges, and juries may be more likely to understand that fear as reasonable. Instead of arguing over whether race played a role in Martin’s death and Zimmerman’s trial,57 we might instead begin from the presumption that all stranger self-defense cases are at least in part “about race.”
The law of self-defense has broadened over time, with common law and statutory developments rendering violence justifiable in more circumstances, insulating more killings from review, particularly those that occur in the context of home defense.58 Rules that expand the right of self-defense in and around the home are premised on long held beliefs about the right and duty of White men to protect the sanctity of their houses and the safety of their families.59 The same themes resonate today as a desire to protect suburban neighborhood from the possibility of encroaching crime, with special concern for women home alone. As a result, state criminal laws legalize private violence in a variety of circumstances and covering a broad swath of space in and around residential neighborhoods.60 Some expansions represent thoughtful responses to the perceived narrowness of core self-defense doctrine, while others seem to do little more than signal to fearful residents that they are entitled to use lethal violence to protect their homes, cars, boats, unoccupied houses, and neighborhoods against intruders.61
To elucidate the relationship between racial fear, place, and self-defense doctrine, I first describe what I refer to as “core” self-defense doctrine: the idea that force is only justifiable if the user reasonably believes that he faces an imminent threat, that the force is proportional to the harm threatened, and that force is necessary to avoid the threatened harm. Relying on psychological research on implicit bias, as well as sociological scholarship on the cultural meaning of Blackness, I then argue that stranger self-defense cases are always “about race” to some degree, and that this fact should be acknowledged. Third, I analyze laws that expand the right of self-defense, including longstanding rules like defense of habitation and more recent innovations like criminal and civil immunity. I focus on the way that each rule relaxes one or more of the basic common law requirements for self-defense to underscore that all these laws are simply different variations on the same theme.62 While data on the application and outcome of state self-defense laws is quite limited, it raises significant questions about whether expanded self-defense laws worsen the built-in racial bias.
A. The Basic Principles of Self-Defense
Killing another human being is illegal under most circumstances. In every state today, and under English common law, intentional killing is punishable by the most severe consequences, including death or life in prison.63 The legal principles that permit the use of deadly force in self-defense present a very limited exception to the rule that killing is illegal. These principles dictate that, if deadly force is necessary to preserve one’s own life or the life of another person, the killing is justifiable.64 In other words, it is not a crime at all. The fact that self-defense is a justification, as opposed to an excuse, is significant. When an act is considered legally justifiable, the message is that the defendant’s actions were not merely understandable but also desirable under the circumstances.65 In the case of justifiable homicide in self-defense, the law expresses the idea that the death of the original aggressor is preferred over the death of the person being attacked.66 A justifiable homicide is a killing that any person would have—perhaps should have—committed under the same circumstances.
A person is justified in using force only if he honestly and reasonably believes that he is in imminent danger and force is necessary to avoid the danger.67 Even then, the force used must be proportional to the threat.68 These four elements—imminence of threat, necessity, proportionality, and reasonableness—form the legal bounds of traditional self-defense doctrine.69 Imminence means that the defendant must have been in fear of immediate harm.70 Necessity means that force must be the only option left.71 If safe retreat or de-escalation is available, force may not be used.72 Proportionality means that deadly force may only be used to defend against a deadly or similarly grave threat.73
A person may be legally justified in using deadly force even if he is mistaken about the threat.74 The defendant’s fear, and his assessment of the threat’s imminence and the necessity of force, must be based on an honest and reasonable belief that he is in danger.75 If the fear is not genuine, or not reasonable, the defendant may be convicted of murder. The reasonableness requirement, traceable at least to the early 1800s, extends the justification to circumstances where the victim did not actually pose a threat, as long as a hypothetical reasonable man would have made the same assessment of threat.76 Although modern courts are more likely to articulate it as a reasonable person standard, the roots of reasonableness in self-defense, as in other areas of criminal law, are gender and race specific.77 Some states incorporate a rule of “imperfect self-defense,” under which a defendant who makes an honest, but unreasonable, mistake about the need for deadly force has a defense to murder but not to manslaughter.78
Because self-defense is an affirmative defense, states may require the defendant to produce evidence to support a claim of self-defense and to persuade a jury of the claim’s validity.79 In a prosecution for intentional killing, the state must prove the elements of murder beyond a reasonable doubt.80 The state need not, however, prove the absence of justification. Instead, in order to get a jury instruction on self-defense, the defendant must present evidence sufficient to establish the defendant’s reasonable belief as to the existence of the core elements of the defense. At common law, the defendant also had to convince a jury by a preponderance of the evidence of the validity of his self-defense claim.81 States today may require the prosecution to disprove self-defense beyond a reasonable doubt once the defense is raised,82 but a defendant must still present some evidence to establish self-defense, and the claim will usually go a jury.83
The traditional substantive and procedural requirements for self-defense provided a dual layer of protection against false or disingenuous self-defense claims. First, requiring the defendant to support a self-defense claim in court (even if only by producing evidence) helps to weed out fabricated claims. Second, the substantive requirement of reasonableness helps to guard against claims of justification that do not accord with what society (as embodied in the jury) believes to be justifiable. Unreasonable self-defense claims would include those not really based on fear, as well as those based on genuine, but socially aberrational, fear.
Through self-defense doctrine, criminal laws condone death, expressing a societal preference for the death of the assailant over the death of the victim. The core substantive requirements, along with the procedural rules governing defense of justification, help to keep this exception narrow. Together they establish that a killing is justifiable only when a person has no other option besides dying or being seriously injured at the hands of an assailant. Yet, in most states, the law of self-defense is actually much broader. The doctrines that expand these core principles are described in Section I.C. First, however, it is important to examine the relationship between race and fear that permeates even the basic rules.
B. Blackness and Fear
Self-defense law legalizes violence perpetrated in response to a perceived threat, as long as the perception is reasonable (that is, it would be shared by others). In encounters between strangers, this means relying on easy to ascertain cues, such as a what the person looks like, what he is wearing, where he is, what he appears to be doing, and whether he seems like he might be holding or reaching for a weapon, as well as one’s sense of unease or danger. Doctrinally, it is difficult to eliminate this reliance on subjective threat assessment.84 We want to allow people to defend themselves against people who might otherwise kill them.85 Forcing every defendant to wait until the threat of death is crystal clear would likely result in more innocent people dying at the hands of aggressors before they are able to fully determine whether the threat is real, and thus, their act justifiable. In many situations, self-defense requires a split-second assessment of danger, and therefore the law tolerates a risk of mistakes. The potential for mistakes and varied judgment, however, does not unfold on a neutral stage.
Because our collective sense of threat is racially contingent, the potential for racial bias is built into self-defense law.86 Black people, and others whose physical characteristics are associated with danger (tall people, muscular people, men), are more vulnerable to being assessed as threatening.87 This is a statement of fact, not a criticism. Race neutral rules can perpetuate racial inequality because historical and social biases, and existing inequality, are built into them.88 Acknowledging that a neutral rule might affect a Black victim differently from a White victim allows us to better ground theoretical assessments of criminal law and the reality of how it is applied.
1. Psychological Anti-Blackness
Decades of social science research on unconscious bias has established that anti-Blackness is pervasive in American society, including a negative association with Blackness,89 a preference for White over Black,90 and an association between Blackness and criminality.91 Blackness in this context is what Jerry Kang calls a “racial schema,” or “a set of [socially created] racial categories into which we map an individual . . . according to prevailing rules of racial mapping,” triggering “implicit and explicit racial meanings associated with that category.”92 This mapping is often based on the visual cues we typically associate with race, such as skin color, but it may also be based on performative traits93 or non-visual cues.94
Social psychologists have documented negative implicit associations attached to Blackness using the Implicit Association Test (IAT).95 The IAT tests the degree to which people associate two concepts. The subject is shown one of two types of images (e.g., flowers/insects and positive/negative) and asked to hit a key to categorize the image.96 When the available categories are consistent with widely-held stereotypes (e.g., “flower or positive word” versus “insect or negative word”), the test subjects react quickly.97 When the categories are schema-inconsistent (e.g., “flower or negative word” versus “insect or positive word,” the subjects react slowly. As the test’s creators explain, “[t]he logic of the IAT is that this sorting task should be easier when the two concepts that share a response are strongly associated than when they are weakly associated.”98 Blackness, for many people, is more strongly associated with negative words and ideas.
2. Bias and Behavior
Life is not a lab experiment. In any real-life encounter between two strangers, a person’s assessment of threat and determination of how to react to that threat are likely to be based on more than just racial bias. But the overwhelming weight of current evidence reveals a shared tendency to associate Blackness with threat. Self-defense cases involve a split-second assessment of whether a stranger poses a deadly threat. To make such a determination, a person can rely only on limited easy-to-see cues, such as skin color, apparent gender, style of dress, location, and environment. Race is an irrevocable part of this mix of cues. Perceptions about race can also influence a person’s assessment of seemingly neutral factors, such as whether the person appears to have a weapon and whether that person seems to be engaged in criminal or dangerous behavior at the moment.
Social scientists have also demonstrated that unconscious biases translate into behavior. In several studies, research subjects were shown a photo of a person and then asked to make a snap judgment about the identity of an object. Participants in the study were more likely to mistakenly think the object was a gun if they had been shown an image of a Black face.99 In so-called “shooter bias” studies, participants are asked to quickly determine whether a person in an image is holding a gun or a wallet, and to make a simulated decision about whether to shoot the person in a video game-like setting. Participants in these studies are more likely to mistake a wallet for a gun and to shoot the image when the face in the image is Black.100 Because these biases are unconscious, they cannot be reduced or eliminated simply through a conscious attempt not to be racist.101
These biases may be worse in cross-racial encounters because people also tend to respond more negatively to anyone who is in an out-group.102 They are not, however, limited to cross-racial encounters.103 Black people are at greater risk of being perceived as a threat, regardless of who is making the assessment.104 In terms of self-defense law, this means that a person’s ability to assess the threat of a target is affected by the race of the target. Legal scholars L. Song Richardson and Cynthia Lee have carefully examined the connection between implicit racial bias and self-defense. Richardson, writing with psychologist Phillip Atiba Goff, explains, “Blacks serve as our mental prototype (i.e., stereotype) for the violent street criminal” and “[w]hen the person being judged fits a criminal stereotype, the suspicion heuristic can cause the actor more easily to believe honestly—but mistakenly—that the person poses a threat and that deadly force is necessary.”105 According to Lee,
If most individuals would be more likely to “see” a weapon in the hands of an unarmed Black person than in the hands of an unarmed White person and are thus more likely to shoot an unarmed Black person when they would not shoot a similarly situated White person, then jurors in self-defense cases may also be more likely to find that an individual who says he shot an unarmed Black person in self-defense because he believed the victim was about to kill or seriously injure him acted reasonably, even if he was mistaken.106
It would be reasonable to expect, then, that self-defense doctrine is more likely to exonerate people who kill Black victims.107 The limited data available suggest that that this is so.108 Finally, researchers have shown that implicit racial bias can infect various stages of the criminal justice system, including public defender triage,109 prosecutorial discretion in charging,110 jury determinations,111 and sentencing.112 Just as the shooter bias studies have raised concerns about how widely held biases might lead to more Black deaths, these studies should raise concerns about whether the substantive laws and procedural mechanisms of the criminal justice system may worsen, rather than remedy, pervasive bias.113
3. Cultural Anti-Blackness
Research demonstrating that subjective threat assessment is affected by unconscious racial bias has received well-deserved attention from criminal law scholars, but explicit bias matters too. For many Americans, Blackness is a proxy for dangerousness in their conscious minds as well. Selective news coverage of local crime reinforces this cultural myth.114 It is hardly surprising, then, that our culture tends to “view crime as a predominantly Black phenomenon.”115 Khalil Gibran Muhammad has documented how the relationship between Blackness and criminality, and the certainty of the Black criminal, evolved out of a combination of history, racist policies, sociological studies of immigrant crimes, and the advent of federal crime statistics.116
Olivia Bertalan, one of George Zimmerman’s neighbors, articulated the explicit fear of Black intruders shared by many of her White neighbors when she described her experience weeks earlier when two men broke into her home. She told the jury how she hid in a bedroom with her infant son while two Black men went through her home and stole electronics.117 The only connection between the burglary and Trayvon Martin’s death was that they occurred in the same neighborhood, Zimmerman was aware of the previous break-in, and Martin was also Black. Bertalan’s story, though, echoed a commonly held fear of Black intruders as threats to White women and children.118 In her story, she looks out of the peephole of her door to see “two young African American guys” ringing her doorbell, at which point she panics, calls her mother, calls the police, and hides out in her son’s room.119 Although her story ends with a break-in, she seems to have assumed this ending the moment she saw the men on her porch.120 The narrative of the Black intruder, particularly when juxtaposed against a White female victim, holds power regardless of its truth or the ultimate outcome.121
Fear of Black crime as a cultural phenomenon matters because, while it is not necessarily correlated with actual risk of crime,122 fear of crime can drive individual responses as well as collective responses in the form of enactment of new criminal laws.123 While psychological research on unconscious bias has been the subject of sustained attention in criminal law, the racial bias that shapes fear of crime on an individual and societal level is often expressly stated.
4. Reasonableness and Colorblindness
In cases involving strangers, the killer’s assessment of threat must be made quickly and based on easy-to-ascertain cues, including race and gender. This is important in light of the psychological evidence described in Section I.B.1, which demonstrated a widespread unconscious tendency to associate Blackness with criminality, and to fear Black people. These implicit biases, coupled with the cultural myths described in Section I.B.3, mean that racial bias is embedded in all stranger self-defense cases because the question of who we fear and how much we fear them nearly always implicates race.
Two additional dynamics operate to further exacerbate the problem of racial bias in the law of self-defense. First, the requirement of objective reasonableness,124 which is supposed to operate as a check on individual biases, may instead operate to rubber stamp individual bias if the decision-maker shares the same psychological and cultural fears. Second, courts’ tendencies to adopt a colorblind approach to adjudicating cases that do not involve direct and explicit race discrimination prevent the judicial process from acknowledging the role that bias may play.
Reasonableness is an objective standard, but an objective standard tolerates bias as long as the bias is shared by the people who apply it. A prosecutor or jury’s after-the-fact assessment of whether the fear was reasonable is, at its core, a question of whether the members of the jury would have assessed the threat similarly. It is a question of shared fear. Because the biases are widespread among perpetrators, judges, and potential jurors, the reasonableness requirement that should provide a check against racist vigilantism may offer only illusory protection against racial violence under color of self-defense law.125 Bias may influence both a defendant’s perception of danger and a police officer, prosecutor, judge, or jury’s conclusion as to whether that fear was reasonable.126
Furthermore, the reasonableness test may only accommodate some versions of shared fear. The hypothetical reasonable person is likely to be a reasonable White man.127 When measured against this standard, the fears of women and non-White people may not register, obscuring those people’s potential self-defense claims and opening the door for others to claim self-defense when responding violently to them.
Despite the core significance of race and the possibility for racial bias in stranger self-defense cases, the legal principle of colorblindness dominates:128 as long as the law at issue is facially race-neutral and no express declaration of racial bias is present in the facts, race is not addressed.129 Despite the deep association between race and fear, self-defense doctrine—like most of criminal law—does not force courts to engage the possibility of racial bias. Absent evidence of explicit, intentional racist behavior on the part of the killer, express non-engagement with racial issues is more common. For example, the judge in the Zimmerman trial famously barred the prosecutor from using the term “racial profiling” to describe Zimmerman’s activities on the night of the shooting.130 This refusal to discuss or address race in criminal cases may even worsen bias.131
To summarize, even in its most basic form, self-defense doctrine is vulnerable to racial bias and, coupled with courts’ presumption of colorblindness, poorly suited to guard against it. Self-defense laws also provide ready cover to those acting with conscious racial animus.132 A vigilante acting on overt racism may successfully claim self-defense as long as his victim is someone a reasonable jury would fear. Self-defense law enshrines shared fear into law, and often does so without mentioning race at all or acknowledging its impact.
C. Expanding the Self-Defense Exception
Given the potential for bias to infect split-second decisions about the use of deadly force and the high cost of mistaken self-defense claims, it would be reasonable to expect that self-defense would be tightly circumscribed by legal rules that limit the situations in which it can be invoked to only the most unavoidable scenarios and that subject most claims of justifiable homicide to legal scrutiny. Yet, the opposite is true. Most states have adopted a constellation of additional rules that relax the basic requirements. These rules make self-defense easier to claim, including removing many cases from legal review, and they make it facially available in more situations. Some of these rules have deep roots in common law and are intended to address gaps left by strict application of the core principles. Others, however, are relatively new. Most strikingly, many of the newer laws do not appear to address a clear gap in existing law: their primary effects are symbolic (they reinforce the desirability of self-defense) and procedural (they insulate a person who kills in self-defense from review by a jury).
Today, expansions to self-defense law are often presented as part of a package of reforms designed to make the defense easier to claim. Florida’s 2005 law, which included a no-retreat rule, presumption of threat rules, and procedural changes, is a prime example.133 In other states, advocacy groups have proposed reform packages modeled after Florida’s law,134 often hand in hand with proposals to loosen restrictions on private gun ownership and use.135 The conservative American Legislative Exchange Council (ALEC) made these reforms a priority, crafting and circulating model legislation that was eventually introduced in Florida and across the country.136 While state legislatures can and do pick and choose among the proposed reforms,137 it is significant that they are typically advanced as a package. This suggests that the goal is not so much to address any flaw in a state’s current approach, but to broaden the right of self-defense generally.
Most commentators have focused on laws that eliminate the common law duty to retreat,138 but that focus is too narrow. The widespread attention to no-retreat laws has engendered confusion and counterarguments focused on whether Zimmerman actually benefitted from the no-retreat provision of Florida’s law,139 whether he benefitted from the 2005 law at all,140 and whether eliminating the duty to retreat is actually a recent or rare innovation in the law of self-defense.141
In fact, Florida and many other states have enacted or considered a range of statutory amendments in the past two decades that broaden the scope of self-defense. Eliminating the duty to retreat is neither the only nor necessarily the most sweeping change wrought by these laws. They all make self-defense easier to claim, but they do so in different ways, including codifying presumptions, eliminating requirements, and shifting procedural burdens. Use of the term “stand your ground” as shorthand for laws that expand the right of self-defense is confusing because it lumps together several distinct legal rules under an umbrella term that refers to one specific rule. The focus on reforms adopted in the past decade also obscure the role of other doctrines that expand the right of self-defense but have deeper roots in the common law, such as defense of habitation and the castle doctrine.
In this Section, I describe various types of state laws that expand on the core principles of self-defense by relaxing one of the traditional substantive requirements—imminence, proportionality, necessity, or reasonableness—or by removing more claims from the courts. Conceptualizing this constellation of laws in terms of how they relax the core requirements helps illustrate just how broad the self-defense exception can be. My goal here is to demonstrate that all the various rules, new and old, related to defensive use of force are really expressions of, or shortcuts around, one of these basic requirements. Viewed this way, modern self-defense law appears to be a collection of ways that states have chosen to permit the use of deadly force in more scenarios and make it easier for defendants to claim it.
1. Imminence
In the most basic form of self-defense, a defendant must demonstrate that the threatened harm to which he is reacting is imminent.142 The laws described in this Section relax or shortcut this requirement by permitting a person to presume that an assailant is about to use deadly force in situations where no fight has started and no weapon is visible.
The imminence requirement has received a great deal of scholarly attention for the barriers it poses to people who use deadly force to fight back against abusive partners.143 In such cases, an abusive partner may pose a deadly threat over the long term or in the future, but if a person kills her abusive partner in a moment of calm, such as when the attacker is asleep, she may be denied a self-defense instruction because the threat was not imminent at that moment.144 A minority of jurisdictions have instead adopted a slightly looser temporal requirement of immediate threat.145 Attorneys may also rely on evidence about the cycle of abusive relationships in individual cases to explain to a jury why the threat may appear imminent to a person in the defendant’s position.146 Yet, the problems posed by imminence in domestic violence cases have not resulted in a widespread effort by state legislatures to modify the imminence requirement by statute.147
On the other hand, statutory and common law incorporates some rules that do modify the imminence requirement by allowing a defendant to presume the existence of an imminent threat even where the evidence may not support it. A primary example of this is a defense of habitation law. In every state, it is legal to kill a person who is breaking into your home, even if there is no evidence of an imminent deadly threat.148 This rule, called “defense of habitation” or “defense of dwelling,” was part of the English common law and incorporated in American jurisdictions.149 State statutes differ in their precise requirements, but many laws allow a person to presume the existence of an imminent deadly threat when a person breaks into, or is about to break into, an occupied dwelling.150
One rationale offered for home defense laws is the prediction that home invasions might lead to inter-personal violence because most intruders are present for criminal purposes and might therefore react with violence if confronted by the residents.151 According to this view, it is impractical to require a person to wait for evidence that the intruder intends to do harm to someone in the home before force may be used. Defense of home laws can thus be understood to modify the imminence requirement by establishing a presumption of imminent harm if a person breaks into an occupied dwelling. At common law, deadly force could be used only against an intruder who intended to commit a violent felony,152 an approach that supports the idea that defense of habitation laws offer a shortcut around the imminence requirement for people who encounter intruders at home.153 Statutes differ according to how close the intruder must be to entering the premises,154 a difference that can have significant consequences in the context described in Part II.
Other provisions extend the idea of home defense to more places, creating a presumption of imminent threat when an intruder tries to break into an unoccupied building, a car, or a boat. A 2015 Nevada law, for example, allows a person to presume that a deadly threat exists in any case involving suspected home invasion or grand larceny of a vehicle.155
2. Proportionality
If defensive force must be proportional to the threatened harm, then deadly force would never be permitted in response to anything short of a deadly threat and killing someone in defense of property would never be justifiable. Yet, self-defense laws in most states relax this proportionality requirement slightly, in that they permit the use of deadly force in response to a threat of death or certain other violent crimes, most commonly robbery, rape, and kidnapping.156
The New York statute at issue when Bernhard Goetz shot Darrell Cabey, Barry Allen, Troy Canty, and James Ramseur on a subway car was one such law.157 Goetz did not claim that he feared his victims were about to kill him.158 He did not need to do so because New York’s law permitted the use of deadly force when a person “reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery.”159 Because he felt surrounded by his victims and because they asked him for money, Goetz convinced a jury that he reasonably feared either a robbery or deadly physical force.160 This slight modification of the proportionality rule meant that Goetz was not required to present evidence suggesting that any of the five teenagers appeared to be holding a deadly weapon.161 Robbery is a taking involving violence or threat,162 but it need not involve a deadly threat. Yet, under New York’s statute, Goetz could shoot or kill to defend himself against any threatened force at all if it occurred in the context of a robbery.
Notwithstanding the discussion of imminence above, defense of habitation is most commonly conceptualized as an exception to the proportionality requirement.163 The home, it is argued, is a special place, the value of which lies somewhere between property and human life.164 If this is the underlying rationale, home defense laws modify the proportionality requirement by providing that deadly force is legal in response to the threat of a home invasion (though that threat must still be imminent and the use of force necessary).165 This rationale seems particularly applicable to many modern defense of habitation statutes, which apply to any trespasser, not just one who plans to commit a violent or forcible felony.166 The stated rationale of some state legislatures for expanding these laws is to make it easier for people to defend their homes against the assumed risk of burglaries.167 If this rationale is extended to other forms of property, such as cars or boats, such laws can also be viewed as modifying the proportionality rule by permitting deadly force in response to threats to special categories of property.168
A more controversial expansion of self-defense involves statutes that allow a private citizen to shoot to stop a fleeing felon.169 Texas law, for example, permits a private citizen to use lethal force against “the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime.”170 The same statute alters the traditional proportionality requirement in another significant way by allowing private citizens to use deadly force in defense of property.171
3. Necessity
Because the use of deadly force in self-defense must be necessary, the core doctrine requires that the person who is attacked must use alternative measures to avoid the threatened harm if they are available. The most important manifestation of the necessity principle is the general rule that deadly force cannot be used if safe retreat is available.172 Besides retreat, the necessity principle also requires that a defendant opt to de-escalate a conflict if possible, or to use less-than-lethal force if that is all that is necessary to stop the threat.173 Most jurisdictions do not allow an initial aggressor to use deadly force in response to a confrontation he initiated;174 in other words, if a deadly confrontation could have been avoided by not starting the fight, then defensive force is not strictly necessary and is therefore illegal.
The “castle doctrine” provides that a person who is attacked in his or her own home need not retreat to safety, even if retreat is an option, before using deadly force.175 This rule partially eliminates the necessity requirement by permitting a person involved in a conflict to choose deadly force even when deadly force is not strictly necessary because retreat is possible. Castle doctrine rules have long been in place in most states, but they have traditionally been limited to situations where a person is attacked in the home.176 Together with defense of habitation laws, castle doctrine laws relax the typical requirements for self-defense in home invasion cases, signifying the deeply rooted idea that people have special rights to protect their homes.177 As Jeanne Suk explains,
Within the home and nowhere else, the common law recognized the right of the home resident—archetypally a man defending his family—to use deadly force to repel the intruder, without obligation to retreat. An intruder who invaded the house of another man, and thereby threatened his home and family, crossed the boundary of the lawful, and thus moved beyond the protection of the law, into a realm that suspended the restrictions on violence.178
Some state laws expand the castle doctrine even further by extending it to places outside the home. Although the castle doctrine has roots in English and American common law, no-retreat rules that cover other places are of more recent vintage. For example, some states permit people to use deadly force without retreating if they are attacked in their office179 or in their vehicle.180 “Stand your ground” laws extend the no retreat rule everywhere, allowing a person to kill without retreating from a conflict, even if he could have escaped danger by walking away.181 Like the castle doctrine, the stand your ground rule is not new. Although English common law requires retreat, more than half the American states have modified the English approach in favor of what is often called the “true man” rule.182
4. Reasonableness and Procedural Changes
Some states have considered proposals to eliminate the “reasonableness” requirement entirely, which would make a killing justifiable if based on an honest fear, even if the fear is unreasonable and incorrect.183 Some have adopted laws that presume the existence of reasonable fear in specific circumstances, including home defense.184 Some have adopted immunity laws, which shift the burden of proof in self-defense cases by prohibiting a prosecutor from bringing charges at all unless sufficient evidence exists to disprove the self-defense case.185 These laws discourage review of self-defense claims by keeping more of them out of courts and away from juries. Some states also provide civil immunity against wrongful death suits for any person who is not criminally convicted, further insulating the killer from any legal accountability.186
Expanded self-defense laws clarify that defensive lethal violence is a desirable outcome in specific situations that might otherwise fall into a grey area. Some of these changes, such as defense of habitation laws, ensure that self-defense law will cover situations where it might be needed but where the traditional requirements, such as imminent deadly threat, might be too narrow to cover them. Others are nothing more than signals because they cover situations that would likely have led to successful claims under the traditional, narrow approach. For example, Nevada recently passed a law that establishes a presumption of imminent harm in cases of carjacking. There was no evidence presented that Nevada’s existing self-defense laws were somehow inadequate to cover self-defense killings in response to carjackings. The new law was part of a bill containing several other expansions to Nevada’s self-defense laws. Its importance was largely symbolic.
The home has long occupied a special place in the common law of self-defense, and the earliest doctrines relaxing the basic requirements of self-defense were centered there. Although the proportionality requirement means that lethal force can be used to protect life, not property, defense of habitation laws provide that lethal force is justifiable if used to protect one’s home.187 The castle doctrine alters the necessity requirement by providing that a person attacked in his home is not required to retreat before responding with deadly force, even if safe retreat is available. As Jeanne Suk described, the importance of home defense was linked to the idea that masculinity included a special duty to protect one’s home and family from outsiders.
The “true man” had a certain relationship and attitude toward his home and family. A “true man” did whatever was necessary to provide economically for his wife and children, who were dependent on him. He was the source of strong moral guidance for his vulnerable or needy wife or children. . . . The chivalry which makes the strong sex the natural protector of the weak runs in every true man’s blood. To be a “true man” was to be a man who supported and protected a woman. . . . And similarly, a “true man” was protective of children. . . . The “true man” rhetoric thus importantly valorized the man’s role as protector of his home and family.188
Presumption of threat laws accord more and more spaces homelike status, allowing people to protect them in accordance with the same principles described by Suk. Stand your ground and immunity laws, which apply anywhere, effectively allow home defense to take place anywhere. A resident who sees a suspicious person in the neighborhood can follow and confront that person. If violence results, stand your ground laws and immunity laws make it more likely the suspicion-based violence will be legal.
One study compared states that enacted expanded self-defense laws with states that had not. The study found that the new laws did not deter burglary, robbery, or aggravated assault, but that they did lead to an increase in criminal homicides (a category that excludes those that were ruled justifiable).189 The increase is consistent with the purpose and function of these laws. As the authors explained, “[g]iven that the laws reduce the expected costs associated with using violence, economic theory would predict that there would be more of it.”190 As might be expected, the enactment of laws expanding the right of self-defense also seems to increase the odds that a homicide will be ruled justified.191
Empirical assessments of expanded self-defense laws are limited.192 In addition to increasing the number of killings and the likelihood that a killing will be ruled justified, there is evidence that these laws might worsen racial disparities in justifiable homicides.193 As an American Bar Association Task Force noted in a report that urged states to limit expanded self-defense laws,
although racial disparities in the likelihood of being found to be justified exist, in stand your ground states, the rate is significantly higher, such that a white shooter that kills a black victim is 350% more likely to be found to be justified than if the same shooter killed a white victim.194
In conclusion, the potential for racial bias is baked into every stranger self-defense case, especially those involving cross-racial encounters. And mechanisms intended to guard against the possibility of bias, such as the reasonableness requirement and review by a jury, provide only a minimal check and in some cases might operate to enshrine biases into law. Rather than circumscribing self-defense in the face of this reality, states have moved to expand the right of self-defense by making it easier to claim and by insulating more claims from judicial review. (However, states have not made similar statutory changes to expand the right of self-defense in cases of women who kill abusive partners, where scholars have provided the most documentation of the need for an expansion).
Moreover, even the traditional common law approach to justifiable homicide is more broad than is often assumed: each of the core requirements of imminence, proportionality, and necessity can be shortcut in specific scenarios. Stand your ground laws, immunity provisions, and laws that extend the presumption of imminent threat to non-home situations are some of the most far-reaching reforms, but even less controversial state self-defense laws can insulate killers from trial and punishment, particularly when defense of home or neighborhood is at issue. When DeMarcus Carter died, Nevada had not adopted the kind of expansions scrutinized in Florida. Its century-old self-defense and defense of habitation laws were more than enough to shield Carter’s killer from scrutiny. Because those laws require only a reasonable assessment of fear, they allow a resident to presume a deadly threat in the case of a suspected home intruder, and allow a person to defend against a suspected break-in. And because prosecutors will often decide not to charge someone who has a strong self-defense claim, Nevada’s basic self-defense laws can easily immunize anyone who shoots an unfamiliar figure through the door. Whether the victim is armed, and whether he really intends to do harm, is irrelevant.
II. FEAR, SURVEILLANCE, AND KILLING IN THE NEIGHBORHOOD
Having carefully examined the interplay between race and self-defense law, this Article now considers how the doctrinal framework of self-defense can function in residential neighborhoods. A self-defense claim is premised on a recitation of fear and an assertion of that fear to a decision-maker, who will either confirm the asserted fear as reasonable, thus legalizing the killing, or reject it, transforming the killing into a murder. Taken as a whole, the framework described in Part I communicates the idea that violence is acceptable as long as it is enacted out of a snap judgment about fear. The collection of rules described in the previous Part confirm that such violence is even more likely to be permissible when it happens in the context of home defense and when it conforms to the narrative of men as protectors of women in homes. The trend toward adding new shortcuts and immunities serves as a reminder that this brand of violence is permitted, and perhaps even encourages civilians to use it.
While actual killings in self-defense are rare, a legal framework that condones violence in service of fear has important expressive and material consequences once it is acknowledged that fear is racialized. In the context of modern residential segregation, expanded self-defense laws affirm White ownership of White-identified neighborhoods and reinforce the outsider status of Black residents. They carve out the possibility for legalized lethal violence against people who appear “out of place” and also create space for White residents to enact lesser forms of violence on their Black neighbors under cover of the same fear. While Black people are no longer formally excluded from White spaces, and while openly racist private violence is now illegal, the law of justifiable homicide communicates the idea that private violence is permitted and desirable when enacted in the name of home defense and against people who are believed to be threatening or out-of-place.
Spaces—neighborhoods, cities, and counties—have been and continue to be racially segregated, and racially identifiable, in the United States. The idea that certain geographical spaces have a racially identifiable character is not new,195 and neither is the role of law in creating and maintaining those spaces. Yet, as the typical legal tools of segregation (from public housing plans to racially restrictive covenants) have been repealed or rejected, modern segregation has come to be viewed as a social or economic problem rather than a legal one.196 Segregation is still reinforced by law, but one may need to look more deeply to see the relationship.197 Self-defense law, which is unavoidably linked to racial fear and which states have consistently expanded despite its potential for bias, is one legal tool that reinforces modern segregation by offering government approval and encouragement to private neighborhood violence in service of racial fears.
State legislatures, by enacting far-reaching expansions to the already-broad law of self-defense, absolve private citizens of legal responsibility for violence and encourage them to take over the work of crime control. In neighborhood protection scenarios, these laws legitimize collective fear of Black intruders and give people greater license to act on that fear through violence, absent any demonstration that people in their homes face any increased risk of crime. State-sanctioned private violence is an old story when it comes to racial control and segregation. But it is also a new story. Demands for greater police accountability should not distract us from scrutinizing the kinds of private violence that go unpunished by state criminal laws; private violence is also an integral part of the machinery of White supremacy, and state legislatures quietly encourage it when they enact and expand criminal laws that legalize it.
This Part explores the relationship between segregated neighborhoods, fear, private violence, and self-defense law. Sections II.A and II.B rebut the colorblind argument that there is no such thing as a White-identified neighborhood today and that, to the extent majority-White neighborhoods exist, they are an accident of social interaction. Section II.A shows how official and private discrimination have always worked hand-in-hand to enforce residential segregation in service of racial hierarchy, so that an effort to isolate one law, policy or decision and ask whether that decision is state or private action provides an incomplete picture.198 Section II.B looks specifically at newly constructed suburban neighborhoods to identify the way that laws help to create and sustain White spaces, even in the absence of a direct history of de jure segregation.199 Sections II.C and II.D locate the dynamics of home defense in these new White spaces. Section II.C describes how state laws invite private violence in the name of home protection and increasingly insulate that violence from review. By doing so, self-defense laws reinforce White ownership of White spaces while increasing Black vulnerability to state-sanctioned killing in those same spaces. Section II.D links the legal framework of self-defense to acts of precursor violence, such as posting photos of people who appear suspicious, following people, and calling the police. While lethal defensive violence in these neighborhoods is rare, self-defense doctrine offers a script of fear that White residents can invoke when carrying out these lesser—but much more common—acts of violence.
A. Segregation and Private Violence
Physical separation has been an essential tool of racial hierarchy since European settlement of North America.200 Spatial boundaries have worked in tandem with legal and social ones. When racial status differences have been starkly defined in law and social interaction, geographic integration does not present a threat to White dominance.201 As legal rules about race and status have become more fluid, residential segregation has become starker.202 This use of residential segregation to underscore White supremacy has always been a public-private partnership. Laws and legal institutions have reflected and shaped social reality; private racism and violence have inspired and enforced legal rules.203 In order to place the relationship between private violence, self-defense law, and modern segregation in historical context, this Section considers the different ways that public and private discrimination have relied on and reinforced each other to produce residential segregation.
1. State-Sponsored Segregation Enforced by Private Violence
The most obvious relationship between law and segregation occurs when laws expressly designate racial neighborhood boundaries and courts enforce those boundaries. Residential segregation laws, the local laws that explicitly designated certain areas as White and other areas as non-White, hardened the spatial boundary between White and Black people who lived in the same cities once the definitional line of slavery disappeared and African Americans began to migrate to cities in large numbers.204 This was also the era of “sundown towns,” which were separate towns and suburbs established as all-White communities across the North, Midwest, and West between 1890 and the 1930s and named for the signs that were often posted at the incorporated limit warning Black people (and sometimes Chinese, Mexican, or Indian people) not to be caught in town after sundown.205 Some towns did this by requiring all housing developments to include racially restrictive covenants; others passed ordinances that barred Black people from local businesses; some simply posted signs at the edge of town or relied on custom and reputation.206 The Supreme Court outlawed local segregation ordinances in 1917 in Buchanan v. Warley,207 but it did so largely on the theory that they interfered with the property rights of White homeowners who wished to sell their houses to Black buyers.208 Some states blatantly ignored the Court’s holding, passing and enforcing racial zoning ordinances well into the late twentieth century.209
The intertwined nature of state law enforcement and private racial violence contributed to the urgent need for federal intervention via early civil rights statutes. State law enforcement and courts were “either unwilling or unable” to stop the Ku Klux Klan’s organized campaign of racial violence.210 Private violence, and local government acquiescence or encouragement, was similarly essential in enforcing the municipal ordinance or policies excluding Black people from sundown towns. For example, James Loewen recounts how Black exclusion was accomplished in Vienna, Illinois during the summer of 1954 when White residents were “deputized” to find two Black men accused in a killing and attempted rape.211 The White residents “sacked the entire [B]lack community,” burned houses, and forced the town’s Black residents out, leaving the town all-White.212 Private violence was also used to keep out Black residents who tried to move in to White towns or neighborhoods. A partnership between public and private racism also greeted Harvey Clark, who tried to move into an apartment in Cicero, Illinois, a White suburb of Chicago. Local police tried to stop Clark by saying he needed a permit and referring to an ordinance he was allegedly violating. When a court ordered the police to stop interfering with his move, local residents gathered to shout at Clark, and later to burn his building and destroy his furniture while the police watched.213
2. “Neutral” State Action in Service of Private Racism
Explicit, openly segregationist laws and policies were replaced in the second half of the twentieth century by facially neutral governments policies and programs that were employed with the goal of maintaining residential segregation.214 Laws were intentionally and sometimes blatantly employed to create and support residential segregation because government officials understood that the White population that was the target of housing and home ownership initiatives did not “care to associate with” Black families, a sentiment likely shared by those officials.215 These rules and programs lent the force of law to the private preferences of White homeowners.
The federal programs that created post-war suburbs, including funding for mortgages, highways, and utilities, were administered in a way that ensured the new suburbs would be White spaces.216 The Home Owners’ Loan Corporation (HOLC) and Federal Housing Administration, both created to facilitate middle-class homeownership, adopted policies that made assistance dependent on racial segregation. The HOLC assessed the relative risk of borrower neighborhoods using a color-coded system in which green (indicating the least risk) was assigned to middle-class White neighborhoods and red (indicating the most risk) was assigned to Black neighborhoods.217 Rothstein explains that, through the production and dissemination of these maps, the federal government approved and encouraged racial discrimination by lenders.218 Federal community development funding was used to redevelop urban neighborhoods, displacing minority residents when White homeowners and business owners moved in.219
Local governments were also important architects of segregation. Some towns replaced racial zoning ordinances with economic zoning rules crafted to enforce racial boundaries but also to pass muster under Buchanan.220 Some zoning rules created exclusive, high-income neighborhoods, then made it impossible for poor people, many of whom were Black, to move into those neighborhoods.221 Other rules protected White neighborhoods against undesirable uses, such as toxic industries and waste disposal, steering those dangerous polluters into unprotected lower income, largely Black neighborhoods.222 Together, zoning rules kept Black people out of White spaces, increased the desirability of those spaces, and created unsafe and unhealthy conditions in Black neighborhoods.223
3. State-Sanctioned Private Racism
While it outlawed explicitly racist segregation laws, Buchanan left private discrimination untouched.224 It would be another fifty years before the force of law was employed to decry private discrimination. In 1968, the Court in Jones v. Alfred H. Mayer Co. held that Section 1982 of the Civil Rights Act of 1866 prohibited private discrimination.225 Congress also passed the Fair Housing Act.226 That law sought to ensure that anyone, regardless of race, has the right to own or rent a home in any neighborhood.227 The temporal gap between Buchanan, which outlawed official residential segregation laws, and Jones, which confirmed that Congress had the power to forbid private discrimination, suggests the importance of private actors in maintaining segregation and the degree to which courts and lawmakers have been willing to support private segregationist efforts.
Even without local laws explicitly designating racial boundaries, neighborhood segregation was maintained by private White homeowners’ individual and collective preferences.228 The legal system enshrined these private racial preferences in a variety of ways, most famously through judicial enforcement of racially restrictive covenants.229 Although the Court ruled in 1948 that judicial enforcement of private housing discrimination constituted state action,230 racially restrictive covenants still appear in the deeds attached to homes across the country.231 In generational terms, many people living and working today either lived through this type of express residential segregation as children or have parents who did so.
Today, most laws are at least neutral as to race, and private discrimination in property and housing is illegal. Everyone is also equally entitled to defend their home, including the right to keep and use a firearm to protect their home and family.232 Moreover, a person who makes the decision to exclude someone from a neighborhood or to threaten or hurt someone because of that person’s race can face criminal and civil sanctions.233 Yet, laws that are race-neutral in language and intent may nonetheless reinforce or reflect private prejudices or historical inequality. They calcify a segregated status quo.
Whether this is viewed as a within the reach of legal remedy turns on the idea of state versus private action. Institutional actors may not give effect to the overt racism of private citizens. In the property law context, courts may not enforce private agreements between homeowners to racially discriminate.234 In the criminal law context, private violence between neighbors that is explicitly motivated by race is a crime. On the other hand, courts treat neutral laws that reflect but do not actively enforce private racism as beyond the reach of legal remedy.235
Despite the demonstrated intent of White homeowners to exclude non-Whites from White communities, and the central role played by federal and state policy in facilitating this exclusion, residential segregation is treated by modern courts as a matter of personal choice, unbounded from historical forces and unreachable by legal remedy. For example, the Supreme Court has refused to permit inter-district remedies to counter school segregation, holding that the importance of local control over schools meant that courts could not require the redistribution of students or resources between districts.236 Justice Stewart’s concurring option in Milliken v. Bradley elaborated further on the view that de facto residential segregation is not necessarily connected to de jure segregation and is therefore beyond the reach of legal remedy. According to Justice Stewart, the fact that Detroit’s school system was majority Black, while suburban schools were majority White, was “caused by unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears” and therefore could not serve as the basis for a race conscious legal remedy.237 Two decades later, Justice Thomas, concurring in Missouri v. Jenkins, similarly argued that “[t]he continuing ‘racial isolation’ of schools after de jure segregation has ended may well reflect voluntary housing choices or other private decisions” that are beyond the reach of law.238
The Court’s colorblind and ahistorical approach to questions of race discrimination (at least as a matter of equal protection) obscured the link between residential segregation as a historical practice (clearly understood to be a function of racism, nearly complete, and often enforced by violence) and residential segregation today (understood to be a function of social preferences, not complete, and not linked to violence). Although cities and neighborhoods continue to be racially identifiable as a social matter,239 courts and individuals often adopt a colorblind approach, denying that spaces are segregated if they are not governed by rigid exclusionary rules. One consequence of this is that, in the absence of clear evidence of intentional discrimination, courts’ constitutional analyses about discrimination—and consequent legal remedy—do not address the relationship between race and spatial exclusion, instead “read[ing] racial geography out of the equal protection framework”240 But this is a mistake. Although it is less direct than in the past, law still plays an important role in maintaining residential segregation.
B. New White Spaces
“[T]he white space,” a “perceptual category” understood by Blacks to include “overwhelmingly white neighborhoods . . . that reinforce[] a normative sensibility in settings in which [B]lack people are typically absent, not expected, or marginalized when present,”241 exists in every city. White spaces are not limited to the South or to Black Rust Belt cities, where White residents are simply using new tools to carry forward a legacy of de jure segregation. White spaces and fear of Blackness are so embedded in the popular psyche that this dynamic of private violence in defense of White space occurs even where it is not predated by official segregation. While White neighborhoods today may not be all White and are not racially exclusive by law, they remain racially identifiable. These White spaces have been shaped by law, and law—though less visibly—continues to help maintain them. This observation is particularly important in newer urban and suburban neighborhoods, including those in Sun Belt cities, some of which post-date officially-sponsored segregation.242
Segregation today is not necessarily absolute, but cities and neighborhoods may still be regarded as Black or White spaces, and the racial character of these neighborhoods is neither accidental nor divorced from law and history.243 For example, although Las Vegas, where Carter was killed, did not have laws mandating residential segregation, “the years between 1931 and the 1960s marked a legacy of segregated public accommodations (e.g., restaurants, shows, and casinos), discriminatory employment practices, and racially segregated housing and schools, earning Las Vegas the nickname ‘Mississippi of the West.’”244 As African Americans moved to Las Vegas from Southern cities during this period, they settled in West Las Vegas, partly in response to White efforts to keep them out of downtown neighborhoods and partly because newcomers gravitated toward the vibrant Black community.245 Residential segregation was persistent enough that Las Vegas’ largely segregated elementary school system was the subject of a 1968 lawsuit, and the school board eventually adopted a mandatory busing plan to desegregate schools.246
As Las Vegas’ Latinx population grew between 1980 and 1990, the Westside became a mixed Black and Latinx neighborhood.247 While Blacks and Latinxs live in all areas of the city today, the Westside is still regarded as a Black space. At the other end of the spectrum are the newer suburban communities at the edges of town, including Summerlin. Compared to the rest of Las Vegas, Summerlin’s population is more White and Asian, and less Black and Latinx.248 This is not to say that Black and Latinx families do not live in Summerlin, but Summerlin’s neighborhoods are predominantly White spaces.249 When the influx of Black and Latinx residents reaches a tipping point, however, White residents work harder to police the boundaries and preserve the Whiteness of the neighborhood.250
The physical layout and architectural features of suburban neighborhoods help do that. In Western and Sun Belt suburbs, clusters of carefully planned neighborhoods are built around cul-de-sacs, marked by a single entrance, and often enclosed by a wall or gate.251 These features minimize the likelihood that a stranger might pass through the neighborhood for an innocent reason, giving residents a further basis for believing that an unfamiliar person is out of place or up to no good. Access may be restricted by guards and identification requirements. Many of these communities were built long after legal segregation ended, giving them a sort of post-racial status, but many are still “white spaces” where Black residents and visitors risk being seen as “out of place.”
Continued residential segregation may be attributable in part to private beliefs and actions, but various legal tools provide the mechanisms through which private preferences are enforced. To understand the way that law supports segregation in new White spaces, it is important to look beyond public housing policy and zoning. Although the decision to sell or rent property can no longer be based on race, housing can legally be denied based on a host of other factors that may correlate with race, such as receipt of government housing assistance, violation of neighborhood-imposed rules of aesthetics and decorum, and even personal dislike. Homeowners’ Associations (HOAs) govern planned communities and impose hundreds of pages of Covenants, Conditions, and Restrictions on the properties included in the neighborhood.252 While race per se is no longer enforceable as a reason to exclude, occupants can be penalized or evicted for violation of myriad HOA rules.253
Exclusion of individuals and families from housing based on any of these factors can perpetuate racial segregation in three ways. First, any of these factors can easily supply a pretext for exclusion of people of color where the desire to keep them out is, at base, motivated by racial animosity or racial stereotypes. Second, even if the decision-maker’s motivation is not consciously affected by race, exclusion of groups like poor people, large families, or neighbors that are perceived as loud, unclean, or unlikable will often disproportionately result in the exclusion of people of color from spaces controlled by Whites because White people may associate negative traits with non-White people, and vice versa.254 Third, unconscious bias may color decisions to exclude that the decision-maker genuinely believes are based on a non-racial factor.
Once granted access to White neighborhoods, people of color may be subject to scrutiny by their neighbors, and the law provides a range of mechanisms that residents can use to police and even remove an unwanted neighbor. For example, the strict rules associated with Section 8 housing, and the requirement that recipients of assistance remain subject to searches and interviews by the housing authority to determine whether they are in compliance with these rules, have been used by White residents to exclude poor Black women who receive Section 8 assistance from their neighborhoods.255 In a similar manner, HOAs regularly survey houses in their communities to identify any failure to comply with HOA rules. A resident can be cited for any violation, no matter how minor, and may be subject to fees and even exclusion for repeated or unaddressed violations.256
Private violence, too, remains a powerful tool of residential segregation.257 Jeannine Bell has documented how Black families still experience “move in violence” when they arrive in White spaces.258 As Bell explains, neighborhood violence today tends to be individual, rather than collective violence imposed by groups like the Klan in an earlier era.259 The incidents of targeted violence described by Bell are almost certainly illegal, even if the law is not always enforced.260
However, neighbor-on-neighbor violence justified by fear of a person who looks unfamiliar and out of place may be legal under the law of self-defense described in the previous Part. This is likely to be the case if a defendant can convince a factfinder that she was genuinely afraid that the victim planned to harm her or break into her house, especially if the defendant did not know or recognize the victim, meaning the victim would have been unfamiliar and out-of-place in an area in which people expect to feel safe. The law of fear and reasonableness may also legalize killings that are driven by overt racism or malice, so long as they appear to be based on fear.
The risk of private fear-based violence may be greater when private citizens patrol their neighborhoods, either individually or as part of a neighborhood watch group, with the goal of identifying and confronting criminals or suspicious people. George Zimmerman proudly identified himself as a neighborhood watch captain, and his encounter with Trayvon Martin occurred when he was patrolling his neighborhood in the wake of stories about Black male teenagers breaking into houses.261 Even if neighborhood watch members are unarmed, as Zimmerman was, their very structure and goals invite confrontation, potentially increasing the risk of violence. In White spaces, the rules of justifiable homicide affect White people and Black people very differently, making White people the vindicated protectors and Black people vulnerable to violence.
C. Ownership and Vulnerability
In a column written in response to Trayvon Martin’s death, journalist Charles Blow explained the vulnerability experienced by Black families who know that suspicion, even if misplaced, can be the basis for legalized killing:
This is the fear that seizes me whenever my boys are out in the world: that a man with a gun and an itchy finger will find them “suspicious.” That passions may run hot and blood run cold. That it might all end with a hole in their chest and hole in my heart. That the law might prove insufficient to salve my loss.262
Black people in White spaces bear the double burden of being racially suspicious and racially salient. Blackness increases the likelihood that people will see innocent actions as threatening. Being non-White in a White space means one will always look out of place.
This combination of perceived threat and looking out of place can be enough to legalize a killing because whether a homicide is justifiable turns on whether the killer’s perception of threat was reasonable, not whether it was true. Expanded self-defense laws have relaxed or eliminated many of the core limitations on the use of force, especially in or around the home, so a person patrolling the neighborhood for suspected burglars would likely be justified in shooting someone as long as the police, prosecutor, or jury were convinced that the fear of crime was real and that the victim really did look threatening and out of place. Fear of crime, of course, does not need to be related to a risk of actual crime.263 Self-defense laws function in part to remind Black people in White spaces that the law permits their neighbors to follow them and kill them simply because they look suspicious and out of place.
Ownership of, and thus the need to protect, property may be expansively interpreted, as when the law protects the rights of renters to police homes they do not own and the right of homeowners to police property they do not occupy. In 2014, Wayne Burgarello killed Cody Devine and wounded Janai Wilson when he found the two squatting in an abandoned duplex that he owned. Burgarello claimed self-defense and was acquitted by a jury.264 He did not invoke Nevada’s defense of habitation law, but instead said he thought Devine had a gun (which turned out to be a flashlight) and relied on Nevada’s stand your ground law to explain why he chose to respond to the trespasser with violence instead of fleeing.265 Moreover, individuals are not confined to protecting their own homes. When Joe Horn shot and killed Miguel Antonio DeJesus and Diego Ortiz after he saw them breaking into a neighbor’s home, a grand jury refused to indict him.266 Horn emphasized that the men crossed into his yard, but he also predicated his defense on a Texas statute that permits deadly force in defense of tangible property.267 In the Horn case, his visual assessment that the men stole his neighbor’s property, coupled with their presence in his yard, was enough to support a claim of self-defense strong enough to avoid an indictment. In each of these cases, the defendants relied on multiple doctrines, including defense of property, no-retreat rules, and defense of home. The cases demonstrate how discrete rules operate together to significantly expand—both spatially and conceptually—on the common law ideas about defense of home.
As Onwuachi-Willig and Bell have explained, using violence to protect one’s home and neighborhood is a racially-charged endeavor: Whites have long used violence to keep Black people out of White spaces.268 Writing about Martin’s death, Onwuachi-Willig explained that Martin was vulnerable to being profiled by Zimmerman precisely because residents understood the neighborhood to be a “white space” and considered unknown Blacks to be “intruders.”269 These scholars document the significance of White spaces in “preserving the material benefits and the psychological wages of Whiteness”270 and explore how and why residents use violence to police and protect them.271 This dynamic of ownership and violence depends on and reproduces “the same racist principles” more explicitly expressed half a century ago in the same cities.272 While Bell characterizes this violence as contrary to law,273 this Article argues that state self-defense laws actually permit and even encourage this type of private violence.274 For White residents of White spaces, expanded self-defense laws are a reminder that the law permits them to use violence, even lethal violence, to defend themselves, their families, and their homes from intruders.
For example, the necessity principle requires that one retreat before using deadly force. One of the earliest modifications of this principle, the castle doctrine, is premised on the idea that a man need not retreat in his home because he has a special relationship—one of ownership and a corollary duty to protect—to his house. In other places, a person was required to retreat before using deadly force, but in the home one was permitted, even encouraged, not to back down.
Home defense laws express a similar idea about the importance of the home and a person’s right and duty to protect that space. They allow for a person to use deadly force as soon as an intruder has met some triggering condition related to breaching the security of the home. Usually, this condition is that the intruder has entered the home.275 Some laws permit deadly force as soon as an intruder has entered a yard or porch, expanding the boundaries of defensible space to include the area around one’s home.276 In Nevada, the triggering condition is that a person feared that the potential intruder was about to enter the home. This kind of law does not have a precise spatial boundary, so a person outside the home may be the target of justifiable homicide as long as he is close enough to give rise to a belief by the resident that he plans to break in.
If a yard is demarcated by a wall or bounded by a gate, presence in the yard alone could be enough to justify deadly force under a broadly-worded defense of habitation law.277 Walls establish such a clear boundary that seeing an unfamiliar person inside the walled perimeter may, without more, be sufficient to establish reasonable fear.278 As a homicide detective said when explaining (before the prosecutor determined whether or not charges would be filed) that Demarcus Carter was “likely trying to gain entry” to the home, “[t]here was no reason for anybody to be back there, especially someone he didn’t know . . . . There was a tall block wall and a padlocked gate. No easy access.”279 Locked gates and guardhouses add an additional layer of security to a neighborhood or community, further underscoring the assumption (already available in Nevada law) that anyone who looks out of place near a home is probably trying to break in. When coupled with walls and locked gates, unfamiliarity may be enough to support a claim of self-defense, as in the case of Carter’s death.
Together, the castle doctrine and the defense of habitation rule send a powerful message that a home is a special kind of space that the resident is entitled to defend. They underscore that it is one’s right to defend one’s home (perhaps including the yard or porch). Perhaps they even signal that defending one’s home is a duty, not just a right. When these two rules (defense of habitation and no-retreat) are expanded outside the home, they encourage people to see the space outside their homes as their rightful territory, a place where they have a right to be and are not required to back down. The first line of expansion includes home-like spaces, such as campers, workplaces, cars, boats, and campsites. When state laws permit a presumption of threat and/or eliminate the retreat requirement in these spaces, the rationale of home defense travels to those spaces too. They expand the idea of defensible space from a home to several specific spaces outside the home.
Stand your ground laws eliminate the retreat requirement completely, providing that a person faced with a deadly threat may respond with deadly force anywhere. If the rationale for the castle doctrine centers on a man’s ownership of his home, and his corresponding duty to defend it, stand your ground laws invite people to exercise the same ownership right over any square of space. In the context of a neighborhood, they also function to expand the idea of defensible space even further in that they permit a person to protect and patrol one’s neighborhood with the knowledge that, if a confrontation with a suspected intruder does ensue, one need not retreat and can instead use deadly force if the conflict escalates. This story of patrolling and protecting the neighborhood provided the foundation for George Zimmerman’s choice to follow and confront Trayvon Martin.280 On the other hand, a Black resident of a White neighborhood may be entitled to use force without retreating if a person breaks into his house, but he will not have the same right, as a practical matter, to search his yard, his sidewalk, and his neighborhood for an intruder.
The death of Jonathan Mitchell in Albuquerque’s Ventana Ranch subdivision illustrates the way that self-defense law may not protect Black residents of White spaces. If they wield guns to protect their homes and neighborhoods, their neighbors may be more likely to see their actions as a threat, rather than as self-defense. Mitchell, a twenty-three-year-old African American veteran, was standing in a driveway in his neighborhood with a gun.281 The neighborhood, Ventana Ranch, is a far Northwest Albuquerque subdivision of gated and walled communities with amenities that include a tennis court and a pool. The neighborhood is Whiter and less Latinx than the rest of the city.282 Mitchell’s neighbor called a third neighbor, Donnie Pearson.283 Pearson left his own house and circled the block to investigate, bringing his young son along.284 Others contend Mitchell felt threatened by Pearson circling the block, trigging Michell to fire his gun.285 Pearson fired back, killing Mitchell. He claimed self-defense and was not charged. Many facts in the Albuquerque case are disputed, but Mitchell’s family describe him as acting in self-defense and maintain that the police believed Pearson’s version of events because they “treated [Mitchell] like he was a prowler that didn’t belong in the neighborhood.”286 As New Mexico’s self-defense law includes an initial aggressor bar to a claim of self-defense,287 the legality of Pearson’s actions depended on the perception that Mitchell had acted illegally, which in turn depended on whether authorities believed he was reasonably defending himself against Pearson.
Expanded self-defense laws communicate ownership over, and a duty to protect, larger and larger swaths of space. They encourage residents to police their homes and neighborhoods by signaling that the use of force against someone who is unfamiliar or seems dangerous will not be punished. Because spaces, especially neighborhoods, are so strongly racialized, this right of ownership and duty of protection only extends to people who, in a racial sense, already own the neighborhood.288
D. Precursor Violence: Surveillance and 9-1-1 Calls
Self-defense killing is rare, but the surveillance that provides the foundation for suspicion and confrontation is not. Neighborhood watch groups and online communities provide a structure through which residents can band together to look for the potential or evidence of crime, and perhaps even address it directly. The law does not constrain private surveillance in the way that it does government-sponsored surveillance. Racial profiling by police may be illegal in some circumstances,289 but racial profiling by private citizens is perfectly legal.290
Residents of Mountain’s Edge, a planned community on the southwestern outskirts of Las Vegas, created a community Facebook page to monitor suspicious activity and guard against a perceived spate of crimes. White residents posted photos of activity they deemed suspicious, including photos of Black children waiting for their parents to get home. These same residents sometimes followed their Black neighbors in order to take photos, and sometimes called security to report them.291 In response to complaints about racial profiling, the site organizer noted that the posts may “offend,” but underscored the central goal of preventing crime.292 This pattern has been repeated across the country as residents use online neighborhood-based community groups to racially profile their neighbors.293
Figurative walls can also delineate White spaces, such as the boundaries created through gentrification of portions of historically Black neighborhoods. In Oakland, Black residents of a majority White enclave described feeling scrutinized by their neighbors.294 While such feelings are frequently dismissed, the residents of this neighborhood also created an online community where they posted and shared photos of suspicious-looking people they saw in the neighborhood, including their Black neighbors.295 When profiling their Black neighbors as suspicious, these White residents invoke the same cultural narrative of the Black intruder that animated Olivia Bertalan’s testimony in the Zimmerman trial.296
Surveillance intersects directly with violence when people call the police on their neighbors for complaints ranging from loud parties to suspected crimes. These callers employ state violence in order to regulate and punish their neighbors.297 In 2018, news outlets published a number of stories documenting the phenomenon of White people calling, or threatening to call, the police on Black people engaged in mundane activities in their own neighborhoods. These stories include a White woman who threatened to call the police on young Black girls selling water in her neighborhood, a White woman who called the police to report a Black family picnicking in a local park, and neighbor who called the police when she saw three Black women leaving a vacation rental and assumed they were committing a robbery.298 In some cases, the police refuse to respond, and many readers ridiculed the choice to call the police. Yet, sometimes the police do respond299 and the threat of violence is realized. In 2015, in McKinney, Texas, a Dallas suburb profiled for its reluctance to accept Section 8 vouchers, Officer Eric Casebolt wrestled a fourteen-year-old Black girl to the ground300 after he responded to a call by residents of a subdivision who were complaining about a teenager’s pool party, which took place at the subdivision’s gated and locked pool.301
This sense of ownership and entitlement to protection302 is apparent in two of the most well-publicized incidents of White people calling the police on Black people they believe do not belong in a particular space. When Alison Ettel (a.k.a. “Permit Patty”) called the police to report that her eight-year-old neighbor was selling water without a permit, she claimed only that the girl and her cousin were breaking permit rules, not that they posed a threat of any kind.303 When Dr. Jennifer Schulte (a.k.a. “Barbeque Becky”) called the police to report a Black family in a park, she claimed in the first call that the family was being disruptive.304 When the police did not arrive promptly, she called back to demand that they attend to her complaint. In the second call, she implied that she was afraid they would hurt her, saying, “I’m really scared! You gotta come quick!”305 Both women were using the police to discipline Black people in neighborhood spaces. In making the second call, Schulte invoked the script of White female fear and Black bodies out of place that underlies some home defense claims. Her recitation of fear and demand for police response is evidence that she views the police as required to respond to her, and that she knows the correct words to ensure that it happens; it does not seem to matter whether the words are recited convincingly.
White residents’ actions may elicit sympathy if they seem to be driven by a fear of crime306 or a desire to protect women at home alone,307 but it is important to recognize that this fear and protectiveness is both racially charged and not necessarily grounded in actual risk of crime.308 New White spaces like Summerlin may be some of the safest neighborhoods in terms of comparative crime statistics, but residents may nevertheless prioritize crime control and protection via formation of neighborhood watch groups, investment in security technology, and maintenance of online communities where neighbors can report suspicious activity or potential criminals. These activities are unregulated, often hidden, and probably entirely legal. Should they create the conditions for a killing, the killer’s actions may be legal as well if taken in alleged self-defense.
CONCLUSION
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 racially biased 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.”309
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 color310 and to enforce racial hierarchies, and we can expect that they may be used this way in the future.