As day follows night, pundits masquerading as news reporters hook up with hitherto unknown law profs whose passionate theories mattered to no one whenever a high profile case doesn’t go the way they believe it should. This time, there are two happening simultaneously, and if two outliers don’t prove a pervasive problem in need of fixing, what does?
The Kyle Rittenhouse and Ahmaud Arbery cases raise intriguing legal questions about people who take the law into their own hands and then claim self-defense when someone dies.
The two cases have some similarities, but far more differences that make any comparison insufferably shallow and flawed. But why let that get in the way of making the point?
In one case, Kyle Rittenhouse fatally shot two men and wounded a third in the unrest following a police shooting in Kenosha, Wis. In the other, Ahmaud Arbery, a Black man, was shot after a pursuit by three white men who said they suspected him of a series of break-ins in the neighborhood. In both cases, the defendants claim they were entitled to start shooting because the victims were trying to take their guns.
“In other words, their own decision to carry a gun became a justification to use it, lest it be wrested away from them,” said Eric Ruben, an expert on the Second Amendment at the S.M.U. Dedman School of Law in Dallas.
That a defendant argues self-defense does not mean it’s either a winning argument or even a valid claim. There remain facts to be proven or disproven that provide legitimacy to the claim and put it in issue. If the facts aren’t there, can’t be proven or are disproven, then the claim fails, as the law requires.
For legal experts like Mr. Ruben and others, these two cases expose deep fault lines in the legal and moral concept of self-defense, a doctrine that is particularly cherished in America but ill-equipped to handle an era of expanded gun rights, growing political extremism, violent threats and a strong vigilante strain, all in a country where the perception of threat is heavily influenced by race.
The problem reveals itself in this framing, that what’s legal may not be sufficiently “moral” to the New York Times, and the “era of expanded gun rights” is about white supremacist vigilantism and right wing gun nuts. There would no self-defense problem if it wasn’t for all these racists carrying guns who create a situation that threatens good people, forcing them to react in their own reasonable fear of a deadly threat, giving the white supremacists cause to claim their own fear of death from the good guy, and since the bad guys are the ones with the guns, cause to kill.
“The problem is that with a citizenry armed with guns, we have blurred every line,” wrote Kimberly Kessler Ferzan, a professor of law and philosophy at the University of Pennsylvania, arguing in the Texas Law Review that a potent mix of “stand your ground” provisions and citizen’s arrest statutes have given people license not just to defend themselves but to go after others. “What is defense? What is reasonable? When may one stand one’s ground and when must one retreat? And, when is a citizen entitled to step in as an aggressor in the name of the state?”
The rifts have surfaced in several debates, beginning with whether openly displayed guns make the bearers feel safer at the expense of everyone else, whether brandishing a gun constitutes a criminal threat or an act of self-protection, and whether people can benefit from self-defense claims if their own actions contributed to the volatility of a situation.
How “stand your ground” found its way into this proposition is unclear, other than the fact that it’s been a hot issue since George Zimmerman was acquitting for killing Trayvon Martin, even though it wasn’t invoked in that case.
To be fair, the article provides a fair recitation of the law of self-defense, that the initial aggressor cannot claim it in reaction to the person trying to defend himself from harm. But as rational as that may be, the article contends that it’s not sufficient to address the quandary.
Experts say self-defense, vigilantism and policing are deeply connected — all are deeply racialized American traditions in which Black people, particularly men, are more likely to be viewed as threats and white people are more likely to be given the benefit of the doubt.
It’s unclear who these experts are or to whom this refers. Is the problem that cops, or prosecutors, are too racist in their perception of the claims, or is it that the jury is too racist in its finding of facts at trial?
In an analysis of homicides done after Trayvon Martin’s death, the Urban Institute found that cases with a white perpetrator and a Black victim were 281 percent more likely to be ruled justified than cases with a white perpetrator and white victim.
The statistic seems damning, but without the specific facts of each individual homicide, it’s meaningless. Maybe every ruling was correct and that the race of the “perpetrator” or “victim,” an ironic choice of words that beg the question, had nothing to do with it. But that doesn’t stop the syllogism* from pushing forward.
Cynthia Lee, a law professor at George Washington University who is known for her model statute on police use of force, has begun work on a universal definition of what constitutes an initial aggressor. It would add another option to laws like Wisconsin’s, which says the aggressor must have intended to provoke violence with a plan to retaliate, a difficult thing for prosecutors to prove. And it would provide for special scrutiny when guns are involved, whether or not they were legally present.
“If you display a firearm or you point it at another person, that’s a threatening act that ordinarily would give, I think, a reasonable apprehension of death or serious bodily harm,” she said.
This basically flips the law, making the person who displays or points a gun the presumptive initial aggressor and thus unable to invoke self-defense rather than rely on the particular facts at issue in the particular case. After all, we have two high profile cases on our radar at the moment to drive this change, and, as the NYT informs us, “experts” tell us the race of the people with the guns.
*The syllogism:
Something must be done.
This is something.
This must be done.
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