an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
1) The New Yorker's Amy Davidson stated last night, "I still don't understand what Trayvon Martin was supposed to do" once he knew he was menaced. Gary Younge similarly asked, "What version of events is there for that night in which Martin gets away with his life?"
To stay alive and out of jail, brown and black kids learn to cope. They learn to say, “Sorry, sir,” for having sandwiches in the wrong parking lot. They learn, as LeVar Burton has, to remove their hats and sunglasses and put their hands up when police pull them over. They learn to tolerate the indignity of strange, drunken men approaching them and calling them and their loved ones a bunch of [n______]. They learn that even if you’re willing to punch a harasser and face the consequences, there’s always a chance a police officer will come to arrest you, put you face down on the ground, and then shoot you execution style. Maybe the cop who shoots you will only get two years in jail, because it was all a big misunderstanding. You see, he meant to be shooting you in the back with his taser.
Yahdon Israel writes about similar coping mechanisms in Manhattan, and the fallback tactic of avoidance. He notes that, "Although Columbia [University] is in Harlem, power wills that there is no Harlem in Columbia. Rather than walk through, the people of Harlem are more comfortable with walking around Columbia to get to the other side because they know where they don’t belong."
How is that impression of "forbidden space" created? We know that, in New York, "Of the tens of thousands of people arrested for possessing small amounts of marijuana each year, 86% are Black or Latino while just 11% are White — even though White people use marijuana at higher rates." Still, the NYC mayor believes that "we disproportionately stop whites too much." Combine that view with a more general law enforcement trend toward deputization and vigilantism, and we are seeing the re-creation of racialized zones, de facto if not de jure demarcations, created not by legislation but by deployments and attitudes of officers (or neighborhood watchers) on the ground.
2) Frontline has produced the following chart on Stand Your Ground laws and self-defense, based on the work of John Roman, "represent[ing] the percentage likelihood that the deaths will be found justifiable compared to white-on-white killings:"
A summary of his findings:
Roman found that Stand Your Ground laws tend to track the existing racial disparities in homicide convictions across the U.S. — with one significant exception: Whites who kill blacks in Stand Your Ground states are far more likely to be found justified in their killings. In non-Stand Your Ground states, whites are 250 percent more likely to be found justified in killing a black person than a white person who kills another white person; in Stand Your Ground states, that number jumps to 354 percent.
3) Several commentators have argued that, given the state of the evidence and the Florida law, the verdict is unsurprising. The implication, then, is that we should look behind the trial to the law that ensures that "in any violent confrontation ending in a disputed act of lethal self-defense, without eye-witnesses, the advantage goes to the living."
4) We may well need to look further behind the law, to the entities that funded its promotion; namely, the American Legislative Exchange Council (ALEC), and the NRA. (And here the relevant law is not merely SYG, but any aspect of self-defense law or its interpretation that makes killing or extreme violence less costly.) Who is funding the NRA?
To stay afloat, the NRA relies on tens of millions in grants and gifts – increasingly linked to the gun industry. Such funds totaled $71 million in 2010 and have been growing twice as fast as membership dues have. And the NRA, looking to bring in even bigger bucks, is now fishing for donors with Koch-size wallets. On its website, the NRA lists a donor tier for those who give $25 million or above, which it calls the Charlton Heston Society. . . .
Top corporate patrons are treated like royalty. Those whose giving to the NRA reaches $1 million or more are inaugurated into an elite NRA society called the "Golden Ring of Freedom" in a ceremony where they're presented with a silk-lined golden blazer with a hand-embroidered crest.
The Citizens United decision has fundamentally transformed the way the NRA operates politically. The NRA can now tap into unlimited donations from individuals and corporations to engage in direct political advocacy – running TV advertising calling for the defeat of individual candidates. The NRA gets to play like a Super PAC. But unlike groups that sprang up to support Mitt Romney (Restore Our Future) or Barack Obama (Priorities USA), the NRA does not have to disclose the names or contributions of its donors.
That anonymity can be very handy, as ALEC learned during an SYG-based boycott. And we can probably expect other forms of anonymity for vigilantism to develop as private actors feel increasingly empowered to take the law into their own hands. Just as arbitration is taking legal interpretation out of the courts, and lobbying wrests the key parts of legislative decisionmaking from holders of public office, Force, Inc. will become a larger part of our experience of surveillance, deterrence, and punishment.
5) On a personal note: I have to say, after this case, I'm scared to go to Florida. What happens if I'm in a fender bender and the person in the other car misinterprets my reaching for my registration as reaching for a gun? What if I don't like to drive, and walk along a road, and for that very reason am seen as "suspect" and start getting followed by somebody? If I, as a white man, have these concern, I can't even imagine how the usual subjects of discrimination feel. Stand your ground seems to be not merely a law, but the first volley in an attempted cultural revolution in how individuals interact. Dueling looks civilized by comparison with what may happen as SYG becomes entrenched.
However inflected by race the old protocols were, they were at least somewhat stable. We are entering a brave new world, where one may well be ill-advised to go anywhere unfamiliar without a taser, gun, mace, or other weapons. This is how "guard labor" approaches, and will perhaps exceed, 20% of GDP, and how the producers of weapons acquire the means to make society's systems of dispute resolution (or creation) ever more dependent on their tools.