2012] SELF-DEFENSE AND THE SUSPICION HEURISTIC 295
The Trayvon Martin killing has caused our nation, again, to confront
both our vicious legacy of racial violence and the long road towards racial
equity that we still have to travel. Regardless of what specific facts emerge in
the case, the killing of this black teen sparked outrage and resentment along
familiar racial lines. Not surprisingly, it also devolved quickly into discussions
about George Zimmerman—Martin’s killer—and the content of his
character. Is he a bigot?1 If so, was that bigotry responsible for Martin’s
death? While it is tempting to fixate on this possibility, there is significant
scientific evidence that a host of subtler mental processes can conspire to
produce racially discriminatory behaviors—even absent conscious racial bias.
These psychological processes are both predictable and pervasive, warping
the perceptions of even the most egalitarian of individuals.
This Essay argues that scholars, lawyers, and policymakers should attend
to the ways that normal psychological processes can bias judgments of
criminality in a manner inconsistent with the values of liberty, safety, and
security. Doing so is important because, sadly, killings of innocent non-white
individuals are not aberrational.2 What is required is a new legal and
theoretical framework that can account for these biases—one that does not
rely upon the fiction of the objective decision-maker or the scapegoat of the
consciously biased actor. This Essay is the first in a series of articles that
develops this framework.
In this Essay, we draw from mind sciences research to introduce a
concept that we term the “suspicion heuristic.” We use this concept to
explain how normal psychological processes that operate below the level of
conscious awareness can lead to systematic errors in judgments of
criminality. This concept provides an important new lens for scrutinizing
legal doctrines that rely upon the reasonableness of criminality judgments—
primarily self-defense and stop -and-frisks. Both doctrines use re asonableness
in an attempt to delicately balance security and liberty. In the self-defense
context, individuals are entitled to defend themselves, but only if their
actions are necessary and proportionate from the perspective of the
reasonable person. In the proactive-policing setting, law enforcement
1. See Ashley Hayes, Witnesses Tell FBI that George Zimmerman Is No Racist, CNN.COM (July
13, 2012, 7:44 AM), http://www.cnn.com/2012/07/12/justice/florida-teen-shooting/index.
2. See infra notes 122–52 and accompanying text (discussing the shooting deaths of
Yoshihiro Hattori and Trayvon Martin). See generally CYNTHIA LEE, MURDER AND THE
REASONABLE MAN: PASSION AND FEAR IN THE CRIMINAL COURTROOM (2003) (discussing cases).
Many of the reported cases involve police shootings of innocent non-Whites. For instance, on
February 4, 1999, four white NYPD officers shot Amadou Diallo, an unarmed West African
immigrant, forty-one times while he was standing in his doorway. Jane Fritsch, The Diallo Verdict:
The Overview; 4 Officers in Diallo Shooting Are Acquitted of All Charges, N.Y. TIMES (Feb. 26, 2000),
shooting-are-acquitted-all-charges.html. Nineteen bullets hit Diallo, killing him. Id.