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Sunday
Apr082012

What does the Trayvon Martin case mean? What *should* it mean? part 2

In part 1, I argued that what the Trayvon Martin case means won’t turn on what the facts are found to be.

On the contrary, what we understand the facts to be will turn on what the case means to us as members of one or another cultural group.

Public reactions to the case display the characteristic signature of cultural cognition--the tendency of people to fit the perception of legally consequential facts to their group commitments.

The influence of cultural cognition explains why people with different outlooks and identities are forming such strong and divergent understandings of what happened despite their having almost no clear evidence to go on.

And it predicts (on the basis of experimental studies) that they are likely to continue to be divided just as bitterly no matter how much evidence comes to light—even if it turns out, say, that an unobserved neighbor made a digital recording of the attack with his or her cell phone (or high-resolution camera).

But as I said in my last post, this conclusion doesn’t mean there’s no point talking about the case. We should be addressing the meanings that divide us on an issue like this, because they divide us on lots of things—not just the use of violence by individuals of one race on those of another, or even the use of it by the police against private citizens, but also matters as diverse as whether climate change is occurring or whether schools should vaccinate pre-adolescent girls against HPV.

This sort of division, in my view, is a barrier to our coming to democratic consensus on a wide variety of policies that promote our common welfare in ways perfectly compatible with our diverse cultural values.

The question, in my view, is how we might use the Trayvon Martin case as an occasion for a meaningful discussion about meanings in our political life.

In this post, I’ll identify how not to do it.

2.  Replaying history: “shall issue,” “stand your ground,” and the culture of honor 

It turns out that we have been “discussing” cultural meanings since pretty much the start of this affair. But we’ve been doing it in the idiom of culturally motivated empirical assertions about the impact of law.

Two laws, in particular—one relating to guns and the other to the use of self-defense.

Florida is one of the 38 states with so-called “shall issue” laws, which essentially mandate that any adult citizen who has not been convicted of a felony or diagnosed with a mental illness be issued a permit to carry a concealed firearm in public.

It is also one of a dozen or states that has recently enacted “stand your ground” laws, which provide that a person “who is attacked in any  [public] place where he has a right to be has no duty to retreat” before resorting to deadly force to defend him- or herself from a potentially lethal assault. (Media reports miscalculate the number—apparently counting laws that existed before the recent spate of “stand your ground” enactments and also mixing in ones that relate to the use of deadly force in the home.)

George Zimmerman, the shooter in this case, was carrying a concealed handgun pursuant to a “shall issue” license. He also asserts that his fatal shooting of Martin—whom Zimmerman was tailing because he looked “suspicious”—was an act of self-defense.

Unsurprisingly, there has been a barrage of commentaries attributing violent assaults to “shall issue” and “stand your ground” laws, and a counter-barrage crediting these laws with reducing the incidence of violent crime.

These empirical arguments are specious. Indeed, they are part and parcel of a longstanding cultural division in our political life. Zealots who crave (or indeed profit from) such debate are exploiting the Trayvon Martin case to deepen that division—crowding out discussion of things that really matter.

a. The evidence. There is no persuasive empirical evidence that “shall issue” laws have any impact on the rate of violent crime.

Don’t take my word for it: that's the conclusion the National Academy of Sciences reached in an “expert consensus” report, which examined numerous empirical studies on the matter and concluded that it was simply impossible to say one way or another whether such laws increase crime or instead decrease it as a result of their effect in deterring violent predation.

The evidence on how “stand your ground” laws have affected violent-crime rates is no more conclusive. Indeed, it’s hard to conceive of how it could be.

These laws have all been enacted in the last decade. Yet the rule that a person can “stand his ground”—that he has no duty to retreat before using deadly force in self-defense—has been the majority rule among U.S. states for over a century. It was already the rule, in fact, in many of the states that have recently adopted “stand your ground” laws (e.g., Georgia, Indiana, Kentucky, Montana, Oklahoma, Utah, Washington, and West Virginia).

Before it enacted its “stand your ground” law, Florida apparently did make the lawful use of deadly force in self-defense conditional on a duty to avail oneself of any safe route of retreat, at least when an individual was attacked outside his or her home. But violent crime has decreased in that state over the the last decade.

Indeed, violent crime has decreased throughout the U.S. during that time. Identifying all the potential causes for this trend, and disentangling them from one another in order to determine what impact (if any) enacting or not enacting a “stand your ground” law has had on the velocity of crime abatement in any particular state, would involve overcoming all the statistical difficulties that led the National Academy of Sciences to toss its hands up in the air when it tried to measure the impact of “shall issue” laws on violent crime.

Any commentator who asserts with confidence that either “stand your ground” laws or “shall issue” laws increase or decrease crime simply doesn’t know what he or she is talking about.

b. Culture, cognition, and political opportunism. What there is persuasive empirical evidence of, however, is the biasing impact of cultural cognition on individuals’ assessments of the impact of laws like these.

Individuals with egalitarian, communitarian values—for whom the gun is a noxious symbol of patriarchy, racism, indifference to others, and hostility to reason—predictably construe the evidence as showing that lax gun control laws increase deadly violence.

In contrast, those with hierarchical and individualistic worldviews—for whom the gun is associated with positive values such as courage, self-reliance, and honor—predictably fit their perceptions of the evidence to the culturally congenial conclusion that shall issue laws decrease homicide rates.

As a result of these same dynamics, moreover, they both tend to misperceive that the weight of expert evidence is on their side.

The same cultural divisions mark reactions to the duty to retreat in self-defense laws. Indeed, the advent of the “stand your ground” movement is intimately connected to cultural conflict over guns.

As indicated, the motivation for these statutes wasn’t to change the law. On the contrary, it was to provoke culturally grounded conflict.

The biggest threat to the gun industry is not that guns will be regulated out of existence. It is that future generations of Americans, as they become progressively more removed from the cultural norms that motivate people to buy guns, will simply lose interest in owning them.

Orchestrated by the NRA, the campaign to enact “stand your ground” laws is a booster shot for those norms. By design, “stand your ground” laws radiate individualistic and hierarchical values. The enactment of them—particularly over the predictable, and predictably strident, opposition of groups associated with egalitarian and communitarian values—broadcasts the vitality of a pro-gun ethos, a signal that can be expected to inculcate the same in those who receive that signal.

c. We’ve seen this before; enough already! The cultural battle over “stand your ground” laws is actually an historical replay.

Just over a century ago, courts in the South and West adopted the “no retreat” rule. They called the “true man” doctrine, a label that recognized that a man whose character is “true” (that is, in order, or straight, like a “true beam”) appropriately values his own liberty more than the life of someone who wrongfully threatens it.

Northeastern jurists and commentators denounced this departure from the traditional “retreat to the wall” position as an expression of the “feeling which is responsible for the duel, the war, for lynching.” The echo of the Civil War reverberated through this legal debate for a period for some three decades.

Then, in one of the most brilliant demonstrations of statesmanship in the history of America jurisprudence, Justice Holmes defused this controversy by draining it of its expressive significance.

It’s futile, he reasoned in the 1921 decision of Brown v. United States, for the law to demand that someone who faces a deadly threat “pause to consider whether a reasonable man might not think it possible to fly with safety.” “Detached reflection cannot be demanded in the presence of an uplifted knife."

Just like that, the “true man doctrine” became the “scared shitless man defense.” The South and the West got the rule they wanted, but only after it had been gutted of the meaning that galled the Northeast.

Everyone lost interest, and the issue went away. Gun control essentially took its place as the front of the battle over the status of honor norms in U.S. law and culture.

But then 85 years later the NRA came to the brilliant realization that it could subsidize the culture war over guns by reviving the “true man” doctrine in the form of the new, Clint-Eastwoodesque  “stand your ground” laws. 

Not surprisingly, the most receptive states were located in regions of the country that already had the “true man” doctrine.

But no matter: the point wasn’t to change the law; it was to agitate and inflame.

The NRA could count on agitation, of course, only if the egalitarian communitarian opponents of the honor culture—the descendents of the “true man” critics—took the bait. Which of course, they have done. They'd be out of work too without this sort of conflict.

Hey—I didn’t know him. But I think I can safely say, “You are no Justice Holmes,” to the legions of commentators now seizing on the Trayvon Martin as an occasion to raise the volume in equally tendentious and tedious “shall issue” and “stand your ground” debates.

I’d also like to tell them to just back off.  Not only are you needlessly sowing division; you are destroying the prospects for a meaningful conversation of the values that—despite our cultural differences—in fact unite us.

References

Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413 (1999).

Dan M Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291 (2003). 

Dan Kahan, Donald Braman, Geoffrey Cohen, John Gastil & Paul Slovic, Who Fears the HPV Vaccine, Who Doesn’t, and Why? An Experimental Study of the Mechanisms of Cultural Cognition, 34 Law Human Behav 501 (2010).

Dan M. Kahan, Donald Braman, John Gastil, Paul Slovic & C. K. Mertz, Culture and Identity-Protective Cognition: Explaining the White-Male Effect in Risk Perception, 4 J. Empirical Legal Studies 465 (2007).

Dan M. Kahan, Hank Jenkins-Smith & Donald Braman, Cultural Cognition of Scientific Consensus, 14 J. Risk Res. 147 (2011).

Dan M. Kahan, The Cognitively Illiberal State, 60 Stan. L. Rev. 115-54 (2007).

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Reader Comments (10)

Dan,
We don't disagree about #1. As for #2, could you perhaps clarify what you mean by saying that the initial decision didn't "require" agitation? Perhaps you mean that we couldn't predict ex ante that agitation would follow: if we wound the tape back (a metaphor that sadly is dying) we might not see dissensus. But isn't the point that "us" v. "them" was a deliberate strategy that has pros as well as cons - pros in that it forced attention on the police department.

April 9, 2012 | Unregistered Commenterdave hoffman

DH-- I do mean to say that attributing the killing to "stand ground" was not necessary to focus attention on the prosecutor's decision not to bring the case. Agree that that is unclear empirical claim; but do you think that if the shooting had occurred in a gated suburb near Newark NJ the case would have been less likely to attract attention?

Also, once attention was attracted in this case, do you think it was immediately "us vs.them"? I think that happened *b/c* "stand ground" & "guns" continued to be focus.

--DMK

April 9, 2012 | Registered CommenterDan Kahan

DMK
Not obvious on the merits - true, having it closer to a media center w/organized forces would have been a factor, but also seems like the refusal to even take to a grand jury (or FL equivalent) is a part of the story that caught the media's eye.

I do not think it was "us" v. "them" in the beginning - but then again, I'm not sure it is now -- hard to know whether to listen to talking blogheads or public polls...

April 9, 2012 | Unregistered Commenterdave hoffman

DH-- right, so just listen to me. At least until you figure out cultural *meta*cognition!

April 9, 2012 | Registered CommenterDan Kahan

I think the race-focused narrative was more divisive early on than the discussion of "stand your ground." See these fairly early comments on Althouse and this post on Malkin.

April 9, 2012 | Unregistered CommenterMW

So you agree, MW, w/ Shelby Steele?

April 10, 2012 | Registered CommenterDan Kahan

Professor Kahan,

Before reading your article I believed states either had Stand Your Ground laws or they had the obligation to retreat. I didn't realize there was an intermediary where some states lacked the obligation to retreat but did not have SYG laws. I have searched in vain to determine which states lacked the obligation to retreat but didn't have SYG. I know you mention 8 states in this article - do you have a list of the others as well?

Also, thank you for writing this article. It was quite informative.

Nancy Fairbank

June 6, 2012 | Unregistered CommenterNancy Fairbank

Hi, Nancy. I didn't mean to say there was anything intermediate. I meant to point out that the "right to stand one's ground" was the majority rule before the adoption of the recent "stand your ground" laws, most of which have been adopted in states in which it was already the law that one had no duty to retreat. Take a look at The Secret Ambition of Deterrence, 113 Harv. L. Rev. 414 (1999) for the history of this part of the law.
--dmk38

June 6, 2012 | Unregistered Commenterdmk38

"As indicated, the motivation for these statutes wasn’t to change the law. On the contrary, it was to provoke culturally grounded conflict."

Perhaps the motivation was, rather, to prevent the law from being changed by judges. IIRC, this is what happened in Florida; The state had a common law tradition of stand your ground, and then the judiciary started insisting on a duty to retreat. The law was meant to restore the previous state.

July 1, 2012 | Unregistered CommenterBrett Bellmore

Maybe, Brett. My own impression was that the NRA campaign didn't mention the issue of what existing law was in the "true man" states, and I'd guess that in most of them, people had no idea what the law was. The issue really was dead for decades -- Justice Holmes pretty much knocked the wind out of it in Brown. But I don't have evidence on what the law's supporters said about existing law; if you do -- or can find some -- I'd be very interested in seeing it.
On Fla: My understanding is that there was never a clear "true man" rule in the state. I'm going on Michelle Jaffe, Up in Arms over Florida's New Stand Your Ground Law, 30 Nova L. Rev. 155 (2005), which cites early 20th century Fla cases that took "duty to retreat" position (which was the traditional common law rule; it was in late 19th Century that US cts 1st fashioned the "true man" alternative).

July 1, 2012 | Unregistered Commenterdmk38

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