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
SUMMARY

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... (see full summary)

 
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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.

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