Document Type

Article

Publication Date

2019

Abstract

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.

Publication Citation

40 Cardozo L. Rev. 1639 (2019).

Download

Share

COinS