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Why the Self-Defense Argument Still Carries So Much Weight

Caroline Light: Georgia is a Stand Your Ground state. In fact, it’s one of the first states that followed Florida in enacting a Stand Your Ground law. Prior to those laws, most of the states had, outside the home, this notion of a duty to retreat. Basically, if you were not in your home, and you encountered what you thought was a deadly threat, you had to first try to get away if it was safe for you to do so. However, what the Stand Your Ground laws do is remove the duty to retreat wherever you may legally be, as long as you did not instigate the deadly encounter. I’m paraphrasing the law here, but it says every law-abiding citizen has a right to stand their ground without retreating and use force against force if they have a reasonable perception of a threat.

We in the United States have long had this thing called the Castle Doctrine, which means that if someone threatens you in your home or your “castle,” you don’t have to retreat because your home is supposed to be a safe haven for you. What Stand Your Ground laws do, starting in 2005 with Florida’s first Stand Your Ground law, is they basically take the Castle Doctrine and stretch it into any place where a person may legally be. So a part of this trial is that the defense wants to claim that there was a reasonable perception of threat when the younger McMichael — Travis McMichael — shot and killed Ahmaud Arbery, and that he was under no obligation to try to retreat because the state has a strong Stand Your Ground law.

Fossett: Claims of self-defense in the United States seem to carry so much weight. Obviously, they’re written into the law with Stand Your Ground laws, but the argument is also a really powerful way to win over juries and the media. Why is that?

Light: One thing that’s really that’s unique about the United States is that we have more guns than human beings. Not only do we have so many guns, they are increasingly unregulated firearms. As of 2014, every state offers some pathway, with a lot of variation, by which a citizen can carry a concealed firearm in a public space. Even where I am, in Massachusetts, which has quite tight gun regulations, I could — if I wanted to — apply for a license to carry a concealed weapon. Increasingly, we have states —21 states as of this summer — that allow for simple constitutional carry, where you don’t need a license or any training to carry a firearm in public space.

So this makes the United States unique: A, all these laws saying that you may claim self-defense when you’ve killed somebody, and B, the capacity to carry deadly weapons in public space in the interest of self-defense. There’s no other nation where we have this legal landscape in combination with the availability of guns.

Now on the cultural front … Our nation is so embedded in a continued logic of racial and, I would argue, gendered exclusionary principles. And we see them in the way that our laws are adjudicated every single day.

So Stand Your Ground laws, for instance, on their face, look neutral. But look at the different ways in which cases of self-defense get adjudicated today. Obviously, we don’t know the outcome of the trial of the three white men who shot and killed Ahmaud Arbery after pursuing him through the neighborhood. We don’t know the outcome of that, but we just witnessed the verdict in a trial of a young white teenager, Kyle Rittenhouse, who took an illegal weapon into a volatile place where there was a demonstration and ended up killing two people and wounding a third. He claimed self-defense and the jury acquitted him of all charges.

But let’s look at a different case. When we look at the case of Cyntoia Brown, a 16-year-old Black girl who had been hired for sex by a middle-aged white man. In 2004, she used his firearm to shoot and kill him. Her attorneys argued that it was self-defense. And the courtroom saw her as guilty of murder and she was sentenced to prison. She spent 15 years in prison. So if we look at cases where if you look at the gender and the race, not only of the defendant but also of the person targeted, we see a pattern.

When a woman uses a firearm or tries to stand her ground against her biggest statistical threat — a man she knows and usually has left before — a courtroom generally is going to find her culpable rather than acquit her based on a self-defense argument. There are so many cases we could look at. If Rittenhouse had been a Black teenager, for instance, and had shot two or three white men at a demonstration, or had gone after police, or had gone after some Proud Boys or a militia … What kind of outcome would we have seen in that trial? I would argue it would have been very different.

Fossett: Are you saying that the way that the laws are adjudicated are racist and sexist? Or are you saying like the laws themselves are based on those kinds of inequalities?

Light: I think it’s a both/and situation. If you look all the way back in time at William Blackstone’s treatise on English common law doctrine — and that’s what much of the United States legal doctrine is based in — it seems like it’s race neutral. It doesn’t say “Any white man who is threatened who may use a firearm to kill the person who’s threatening him.” It doesn’t say that; it says that a person who perceives themselves threatened in their own home can use force, including lethal force.

It is gendered, actually, which is fascinating. If you look at the English common law doctrine around women, the one case in which women — and it was white women, even though it doesn’t say that in the legal doctrine — were allowed to defend themselves with lethal violence is against an assault on their chastity. So they were allowed to kill a man who was in the process of trying to rape them. However, that man could not be their legally betrothed husband because there was no marital rape at the time.

The laws were initially produced in the context of coverture and of settler-colonial violence. So indigenous people living in North America were not allowed to defend their homes — their castles — from encroaching European-descended settlers. Indigenous people were not seen as possessing a right to their own home and thus excluded from the Castle Doctrine.

You see it in the trial of George Zimmerman, where they tried to frame Trayvon Martin as this deadly threat who was threatening to kill this older, armed guy with a sidewalk. So similarly, they tried to introduce evidence of a Arbery’s past, such as mental health issues, encounters with law enforcement. And thankfully, the judge in the Georgia trial said that was inappropriate and inadmissible, so they were not allowed to bring all that information in.

Fossett: And I also want to talk about the citizen’s arrest aspect. How does that fit into this history?

Light: At the end of the Civil War, many of the states of the former Confederacy passed various kinds of laws, including Black codes and citizens’ arrest laws, to enable white armed, usually male citizens, to continue subjugating newly freed, formerly enslaved people. And so the citizen’s arrest law was a sneaky and clever way to continue the violence of chattel slavery, even after it had become outlawed through the 13th Amendment. So citizen’s arrest laws passed in some of the states of the former Confederacy, including Georgia.

Those laws are rooted in a moment of the South trying to continue holding tight to the patterns of racial violence and resisting black citizenship and Black economic and political power. Citizen’s arrest laws basically empowered white armed citizens to continue the slave patrol even after slavery was no longer legal. And what we saw happen in February 2020 was three armed white citizens took that mantle of so-called “good citizenship” and patrolled their neighborhood and thought that Ahmaud Arbery looked suspicious. [Ed. Note: Georgia repealed its citizen’s arrest law this year.]

Fossett: What are the parallels you see between this trial and that of George Zimmerman, and what are the crucial differences that you think might make this a different outcome?

Light: In everything that I’ve seen about this trial of Arbery’s killers, it seems that Judge Timothy Walmsley not allowing for a lot of courtroom shenanigans. For instance, the defense tried to remove Black clergy from the courtroom. And the judge called the request “reprehensible.”

In terms of the defense’s approach, I think a lot of it is really similar. It’s almost as if what happens in these cases is the defense goes and looks at the other past cases to see how they did it and what they did. Like I was saying before, one pattern I see in both the trial of George Zimmerman and the trial of the McMichaels and Bryan is the defense reversing the roles of victim and perpetrator to make it appear the unarmed Black young man — in Trayvon’s case a boy, a teenager, and in Ahmaud Arbery’s case, a young man — appear as monstrous and frightening as possible. So that’s one thread of continuity is the framing of Black masculinity as a lethal threat in those cases.

The other thing that happens is the framing of white masculinity as good citizenship, as good guys with guns. And I do want to acknowledge that George Zimmerman is Latino. He’s not technically a white person, either. However, when police see him walking down the street, they don’t assume that he is a person of color. There’s this idea that “good citizens” can go out and patrol other people’s property with firearms and threaten people’s lives in the interest of protection of property. They’re playing cops, basically.

And in George Zimmerman’s case, and in Kyle Rittenhouse’s case, they’re totally getting away with it based on the claim that they were in fear for their lives. That’s the other trope, too: The magic phrase is “I was in fear for my life.” There are certain people for whom that becomes the magical, exonerating incantation. When police say it in a courtroom after killing, especially a person of color, the police are given the benefit of the doubt. When these white and white-passing armed citizens say that they were in fear for their life, they’re given the benefit of the doubt, and that’s the other pattern that we see here.

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