Self-Defense and the Suspicion Heuristic

• Author: L. Song Richardson - Phillip Atiba Goff
• Position: rofessor, The University of Iowa College of Law. J.D., The Yale Law School; A.B., Harvard College - Assistant Professor, University of California, Los Angeles, Department of Psychology. Ph.D., Stanford University; A.B., Harvard College
• Pages: 293-336

293

Self-Defense and the Suspicion Heuristic

L. Song Richardson & Phillip Atiba Goff

ABSTRACT: The doctrine of self-defense evaluates the reasonableness of

criminality judgments. Yet, it fails to account for how non-conscious

cognitions place those who are stereotyped as criminal at greater risk of

mistaken judgments of criminality—sometimes with deadly consequences.

Studies reveal, for example, that people are more likely to see weapons in the

hands of unarmed black men than unarmed white men, and to more

quickly shoot them as a result. Because self-defense doctrine does not attend

to these judgment errors, it fails to interrogate how, if at all, these mistakes

should affect assessments of reasonableness. Drawing from powerful and

well-established mind sciences research, this Essay introduces a concept that

we term the “suspicion heuristic.” This concept explains how non-conscious

processes can lead to systematic and predictable errors in judgments of

criminality—and influence subsequent behaviors—regardless of conscious

racial attitudes. This Essay argues that in order to provide more equal

protection, security, and liberty to all victims of violence, the law of self-

defense should account for the suspicion heuristic in its assessments of

reasonableness. This Essay traces the broad outlines of a theoretical and

legal framework for doing so.

I

NTRODUCTION ...................................................................................... 295

I. THE SUSPICION HEURISTIC .................................................................... 296

 Professor, The University of Iowa College of Law. J.D., The Yale La w School; A.B.,

Harvard College. I am deeply grateful to all those who took the time to provide insightful

comments, critiques, and suggestions on this Essay. These include the participant s at the

workshop sponsored by UCLA Law School’s Program on Understan ding Law, Science, and

Evidence (particularly Jerry Kang and Jennifer Mnookin for bringing this group together); my

colleagues at The University of Iowa College of Law who commented on drafts or attended the

faculty workshop where this work was presented; and Jenny Carroll, Cynthia Ho, Cynthia Lee,

David Sklansky, and Deborah Tuerkheimer. Additionally, Amanda Baker, Mike Fallings, and

Jigar Ghandi from the American University Washington College of Law; an d Tyler Coe and

Michelle Wolfe from The University of Iowa College of Law provid ed excellent research

assistance. I would also like to express my gratitude to Robert Nietupski, Dan Reed, Michelle

Halverson, and the other members of the Iowa Law Review for superb work on this Essay. Finally,

I must thank Kurt Kieffer for insights that made this Essay possible. Any errors are my own.

 Assistant Professor, University of California, Los Angeles, Department of Psychology.

Ph.D., Stanford University; A.B., Harvard College.

294 IOWA LAW REVIEW [Vol. 98:293

A. HEURISTICS AND BIASES.................................................................... 298

B. IMPLICIT RACIAL BIAS ...................................................................... 301

C. THE CONSTRUCT .............................................................................. 307

1. In General ............................................................................... 307

2. Judgments of Criminality ....................................................... 309

II. SELF-DEFENSE AND THE SUSPICION HEURISTIC ..................................... 314

A. THE REASONABLENESS DETERMINATION ........................................... 318

B. CLASSIFYING MISTAKEN SELF-DEFENSE .............................................. 321

1. Justification v. Excuse ............................................................. 321

2. A Partial Excuse ...................................................................... 324

3. Operationalizing the Reasonableness Standard .................. 325

III. THE DUTY TO RETREAT ......................................................................... 326

A. HISTORY .......................................................................................... 327

1. English Common Law ............................................................ 327

2. United States Doctrine ........................................................... 328

3. Stand Your Ground Laws ....................................................... 329

B. THE ROLE OF MISTAKE ..................................................................... 331

C. A PROPHYLACTIC MEASURE .............................................................. 332

CONCLUSION ......................................................................................... 334

2012] SELF-DEFENSE AND THE SUSPICION HEURISTIC 295

INTRODUCTION

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.

html.

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),

http://www.nytimes.com/2000/02/26/nyregion/diallo-verdict-overview-4-officers-diallo-

shooting-are-acquitted-all-charges.html. Nineteen bullets hit Diallo, killing him. Id.