Marquette Law Review
Volume 106
Issue 3 Spring

Article 5

Spring 3-1-2023

The Legacy of Trayvon Martin—Neighborhood Watches,
Vigilantes, Race, and Our Law of Self-Defense
Mark S. Brodin

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Repository Citation
Mark S. Brodin, The Legacy of Trayvon Martin—Neighborhood Watches, Vigilantes, Race, and Our Law of
Self-Defense, 106 Marq. L. Rev. 593 (2022).
Available at: https://scholarship.law.marquette.edu/mulr/vol106/iss3/5

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THE LEGACY OF TRAYVON MARTIN—
NEIGHBORHOOD WATCHES, VIGILANTES,
RACE, AND OUR LAW OF SELF-DEFENSE
MARK S. BRODIN*
White people go around, it seems to me, with a very carefully
suppressed terror of Black people — a tremendous uneasiness.
They don’t know what the Black face hides. They’re sure it’s
hiding something. What it’s hiding is American history. What
it’s hiding is what White people know they have done, and
what they like doing.
—James Baldwin1
Trayvon Martin was a household name in Europe in a way that
Emmett Till never has been.
—Gary Younge2
Reflecting back a decade later, what is the enduring significance of the
Trayvon Martin case—a Black teenager whose life is violently cut short, and a
legal system that accepted his death without consequence? The poet Elizabeth
Alexander speaks of “The Trayvon Generation” of Black youth who have
grown up in the haunting shadow of his killing, and the anguished parents who
cannot protect their children from such a fate. America’s first Black president
spoke for them: “When I think about this boy, I think about my own kids. If I
had a son, he’d look like Trayvon,” Barack Obama told the nation.
In its historical context, Martin’s fate fits squarely in the American tradition
of legalized White vigilantism, embraced by a generous definition of self-

* Professor and Michael and Helen Lee Distinguished Scholar, Boston College Law School. My
great gratitude to the Lees for their continued support; and to students Teodoro Upton, Zack Greenberg,
Eugenie Dubay, Jamie Kobayashi, Caitlyn Seed, and Jesslin Wooliver for their valuable research
assistance; and to friends Michael Cassidy and Mark Robert Schneider for their insightful comments
and suggestions on an earlier draft; and to Salman Sarwar for his skilled technical assistance.
1. Matthew Gilbert, ABC’s Scrapped ‘20/20’ Segment on James Baldwin Resurfaces, BOS.
GLOBE (June 17, 2021), https://www.bostonglobe.com/2021/06/16/arts/abcs-scrapped-2020-segmentjames-baldwin-resurfaces/ [https://perma.cc/TTA7-JZ3P] (quoting James Baldwin).
2. Gary Younge, What Black America Means to Europe, N.Y. REV. BOOKS (June 6, 2020),
https://www.nybooks.com/online/2020/06/06/what-black-america-means-to-europe/
[https://perma.cc/R4JW-YH5P].

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defense in such cases, and most recently by Stand Your Ground laws greenlighting a “shoot first and ask questions later” response to a perceived (but not
necessarily actual) threat.
Neighborhood crime watch captain George Zimmerman identified the 158pound dark-skinned high school junior leaving a convenience store with snacks
as an intruder in his gated community. The ensuing confrontation ended when
Zimmerman shot a single bullet in Trayvon’s heart from his semi-automatic
handgun. As implausible as Zimmerman’s self-defense story was, it resonated
with the all-White female jurors, who acquitted him of all charges—a verdict
that can only be understood against the backdrop of the implicit bias,
unconscious stereotyping, and deference to White-on-Black violence that
insidiously infects our society.
I. INTRODUCTION........................................................................................... 594
II. THE TRIAL: HOW IS IT THAT AN UNARMED BLACK YOUTH IS SHOT DEAD
AND THE CIVILIAN SHOOTER WALKS FREE? PERHAPS BLACK LIVES
DON’T REALLY MATTER? ................................................................... 598
III. THE “NEIGHBORHOOD WATCH” AND THE AMERICAN TRADITION OF
VIGILANTISM ...................................................................................... 612
IV. ORGANIZED VIGILANTISM IN THE U.S. .................................................. 618
V. THE FREELANCERS ................................................................................... 620
VI. WHAT HAPPENS WHEN PEOPLE OF COLOR DEFEND THEMSELVES? . 626
VII. THE TRAYVON MARTIN CASE IN RACIAL REVERSE—GEORGIA V. JOHN
MCNEIL ............................................................................................... 629
VIII. REFORMING OUR LAW OF SELF-DEFENSE ........................................ 631
IX. FINAL REFLECTIONS ............................................................................... 641
I. INTRODUCTION
Massachusetts Governor Michael Dukakis held a double-digit lead in the
polls the summer before his 1988 Presidential election contest with George
H.W. Bush. How Bush pulled out his surprise victory is the story of America,
and it is the story of the killing of young Trayvon Martin in February 2012.
Lee Atwater, Republican strategist par excellence, devised a game plan
tried and true, one that had worked since the first days Europeans landed on the
shores of the New World—fear of The Other. Willie Horton, an AfricanAmerican man serving a life sentence for murder in a Massachusetts prison,

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had been released on a weekend furlough.3 He escaped, kidnapped a young
couple, and proceeded to brutally rape the woman and torture her fiancé.4
Willie Horton’s mug shot, the quintessential menacing Black male, quickly
became the centerpiece of Bush’s campaign.5 It mattered not that the furlough
program was initiated by Dukakis’s Republican predecessor.6 It mattered not
that such tragic incidents had occurred as well in other release programs around
the country.7 It mattered not that Horton was actually known as William;
“Willie” was chosen to underscore the racial dimension of the scare.8 The ads
devastated Dukakis’s momentum, and are recognized as one of the ugliest but
most successful campaign strategies in American political history.9
In 1989, the year after Dukakis was “Willie Hortoned,” Charles Stuart shot
and killed his pregnant wife as they sat in their Toyota outside the Boston
hospital where they had just taken a childbirth class.10 Stuart had romantic and
business plans that didn’t include Carol.11 When he called 911 and the police
arrived, he reported that she had been shot by a young Black man in a hoodie—
“the usual suspect.”12 To close the deal, he inflicted a wound in his own
abdomen, and his fiction of a vile shooting of an innocent White couple was
immediately accepted by police and the media.13
Boston went into a furious panic—any Black male of a certain age was
aggressively stopped and frisked in the police dragnet.14 One in particular was
selected to take the fall, and certainly would have if Stuart’s brother Matthew

3. Roger Simon, How a Murderer and Rapist Became the Bush Campaign’s Most Valuable
Player, BALT. SUN (Nov. 10, 1990), https://www.baltimoresun.com/news/bs-xpm-1990-11-111990315149-story.html [https://perma.cc/4ARW-3747].
4. Id.
5. Id.; Peter Baker, Bush Made Willie Horton an Issue in 1988, and the Racial Scars Are Still
Fresh, N.Y. TIMES (Dec. 3, 2018), https://www.nytimes.com/2018/12/03/us/politics/bush-williehorton.html [https://perma.cc/VR72-DN7F].
6. See Simon, supra note 3.
7. See T.R. Reid, Most States Allow Furloughs from Prison, WASH. POST (June 24, 1988),
https://www.washingtonpost.com/archive/politics/1988/06/24/most-states-allow-furloughs-fromprison/ad22836e-111b-4f09-aa6d-6651d2e9a04e/ [https://perma.cc/52MT-KNWT].
8. Simon, supra note 3.
9. Baker, supra note 5.
10. Diane Bernard, “They were Treated like Animals”: The Murder and Hoax that Made
Boston’s Black Community a Target 30 Years Ago, WASH. POST (Jan. 4, 2020),
https://www.washingtonpost.com/history/2020/01/04/they-were-treated-like-animals-murder-hoaxthat-made-bostons-black-community-target/ [https://perma.cc/CL8N-JU4E].
11. Id.
12. Id.
13. Id.
14. Id.

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had not had second thoughts and let the true story out.15 Exposed, Charles Stuart
leaped off the Tobin Bridge to his death.16 But before these revelations, the
Boston press went wild with the story, juxtaposing photographs of the affluent
White couple in loving poses against the foreboding Black suspect.17
Charles Stuart knew precisely the buttons to push to deflect blame to a
hooded Black man, the image of the urban criminal that so many conjure up.
Equally so Susan Smith, a South Carolina woman convicted in 1994 of
drowning her two young children, but only after she unsuccessfully tried to
divert attention to a fictitious Black man whom she claimed carjacked her and
kidnapped the children.18
These stories are as old as America, and as current as George Floyd. D.W.
Griffith’s Birth of a Nation (based on the novel The Klansman) became a
national sensation in 1915 after a celebrated showing in Woodrow Wilson’s
White House.19 Depraved Black males haunt the landscape, raping any White
woman in sight.20 The hooded KKK riders on White stallions come to the
rescue, and a new nation is birthed from the oldest of racial stereotypes.
The falsely accused Scottsboro boys, the brutally murdered Emmett Till,21
the now-exonerated “wilding youth” of the Central Park jogger assault, the
“super predators” of the 1990s political rhetoric—all a narrative of
dehumanizing The Other; what the pioneering social psychologist Gordon
Allport dubbed the “manufactured demon of race.”22
It is the presumption of criminality23 that underlay the thousands of
lynchings across the land (mostly but not exclusively in the South), often to the

15. Id.
16. Id.
17. Id.
18. Marisa Lati, She Captivated the Nation by Saying a Black Man Kidnapped Her Sons. Police
Knew
She
Killed
Them,
WASH.
POST
(Oct.
25,
2019),
https://www.washingtonpost.com/history/2019/10/25/she-captivated-nation-by-saying-black-mankidnapped-her-sons-police-knew-she-killed-them/ [https://perma.cc/4ADN-ZDE9].
19. THE BIRTH OF A NATION (David W. Griffith Corp. 1915).
20. See generally DICK LEHR, THE BIRTH OF A NATION: HOW A LEGENDARY FILMMAKER AND
A CRUSADING EDITOR REIGNITED AMERICA’S CIVIL WAR 222–23 (2014).
21. For a comparison of the Till and Martin cases, see Angele Onwuachi-Willig, Policing the
Boundaries of Whiteness: The Tragedy of Being ‘Out of Place’ from Emmett Till to Trayvon Martin,
102 IOWA L. REV. 1113 (2017).
22. GORDON ALLPORT, THE NATURE OF PREJUDICE 110 (1979).
23. Bryan Stevenson, A Presumption of Guilt, N.Y. REV. BOOKS (July 13, 2017),
https://www.nybooks.com/articles/2017/07/13/presumption-of-guilt/
[https://perma.cc/UAW7HX64]. Stevenson describes his own experience, when he was confronted by police in front of his new
apartment in Atlanta. They drew their guns, threatened to “blow [his] head off,” threw him against his
car, and searched it before releasing him with the remark that he should consider himself lucky. Id.

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entertainment of the locals,24 that drove the explosions of racial violence by
White vigilantes as in Tulsa, Oklahoma in 1921—all with no consequences to
the perpetrators, and often with the direct complicity of government actors.25
What George Zimmerman saw that rainy Florida night in 2012 was not a
skinny seventeen-year-old high school student bringing snacks to join his father
to watch the NBA All-Star game,26 but the dark figure in D.W. Griffith’s wild
distorted imagination, prowling in his neighborhood.27 Trayvon was, as
Reverend William Barber put it, “guilty of nothing more than walking while
Black in a gated community.”28
Reflecting back a decade later, what is the legacy of Trayvon Martin’s case,
a teenage life violently cut short, and a legal system that accepted his death
without consequence? Among other things, there is “The Trayvon Generation,”
poet Elizabeth Alexander’s ruminations on the young African-Americans who
have grown up in the haunting shadow of this killing, and the anguished

24. RICHARD MAXWELL BROWN, STRAIN OF VIOLENCE: HISTORICAL STUDIES OF AMERICAN
VIOLENCE AND VIGILANTISM 214–18 (1975). “The entire lynching ritual was structured to give
dramatic warning to all black inhabitants that the iron-clad system of white supremacy was not to be
challenged by deed, word, or even thought.” Id. at 218. Lynching served a form of White self-defense
against the perceived threat of black males to the purity of White females, as illustrated by the brutal
murder of Emmett Till for allegedly whistling at a White woman in a Mississippi grocery store in 1955.
CAROLINE E. LIGHT, STAND YOUR GROUND: A HISTORY OF AMERICA’S LOVE AFFAIR WITH LETHAL
SELF-DEFENSE 14 (2017). Till’s killers were quickly acquitted by an all-White jury, but later admitted
their guilt in an interview in Look magazine. Id. at 112–14. Activist journalist Ida B. Wells spent her
career debunking “the old thread-bare lie that Negro men assault White women,” and pressing
(unsuccessfully) for a federal anti-lynching law. Id. at 95.
25. See generally MARK ROBERT SCHNEIDER, “WE RETURN FIGHTING”: THE CIVIL RIGHTS
MOVEMENT IN THE JAZZ AGE (2002).
26. See Karen McVeigh, Trayvon Martin Death: Parents Call on FBI to Take Over Case as
Anger Grows, GUARDIAN (Mar. 19, 2012), https://www.theguardian.com/world/2012/mar/19/trayvonmartin-death-parents-fbi [https://perma.cc/FAN4-S8VG].
27. Research indicates that young black teenagers appear more threatening and less child-like
than their White contemporaries. See Phillip Atiba Goff, Matthew Christian Jackson, Brooke Allison
Lewis Di Leone, Carmen Marie Culotta & Natalie Ann DiTomasso, The Essence of Innocence:
Consequences of Dehumanizing Black Children, 106 J. PERSONALITY & SOC. PSYCH. 526, 539–40
(2014). “As a result, an unfamiliar young Black boy walking down the street in a largely Whitepopulated neighborhood is automatically perceived as more suspicious, less innocent, and more grown
up than his White counterpart would appear in the very same neighborhood doing the very same
activities.” Adeoye Johnson, Neighborhood Watch: Invading the Community, Evading Constitutional
Limits, 18 U. PA. J. L. & SOC. CHANGE 459, 465 (2016).
28. William Barber II & Jonathan Wilson-Hartgrove, Opinion, “I Can’t Breathe.” A Cry for
Change, N.Y. TIMES (May 23, 2021), https://www.nytimes.com/2021/05/21/opinion/george-floyddeath-william-barber.html [https://perma.cc/M274-8968].

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mothers who cannot protect their children from such a fate.29 “[T]o AfricanAmericans and other racialized minorities, Martin’s death became emblematic
of the extreme outcomes of racial profiling enmeshed in a history of criminal
laws arbitrarily targeting Black men.”30
I begin with a close look at the Zimmerman trial, expanding on my earlier
Howard Law Journal article31 with new access to an official audio-visual
transcript.32 Then I put the case in its historical context by surveying the
American tradition of vigilantism and its incarnation in the “neighborhood
crime watches” (like Zimmerman’s) that have become so pervasive. Next, I
contrast the response of the legal system to Black as compared to White selfdefense in notable cases. I conclude with a critical appraisal of our self-defense
law—doctrine and practice—and the compelling need to reform it in light of
what we have learned about implicit bias, unconscious stereotyping, and their
role split-second panicked decision-making.
II. THE TRIAL: HOW IS IT THAT AN UNARMED BLACK YOUTH IS SHOT DEAD
AND THE CIVILIAN SHOOTER WALKS FREE? PERHAPS BLACK LIVES DON’T
REALLY MATTER?
Florida prosecutors brought charges against George Zimmerman for the
fatal shooting only after nationwide protests, six weeks after the killing.33 The
local police treated Zimmerman more as victim than murderer, and the jurors
apparently agreed when they rendered their not guilty verdict.34 Buried along
with Martin was the racial dimension of the case, kept out by the prosecution,
the judge, and the defense (except, as we shall see, when it was used to their
advantage by instilling fear in the female jurors).35 The killing, the trial, the

29. Elizabeth Alexander, The Trayvon Generation, NEW YORKER (June 22, 2020),
https://www.newyorker.com/magazine/2020/06/22/the-trayvon-generation [https://perma.cc/S72UC4LJ].
30. Kirk James & Julie Smyth, If George Zimmerman Were Found Guilty, Would the Criminal
Justice System Be Considered Just?, in TRAYVON MARTIN, RACE, AND AMERICAN JUSTICE: WRITING
WRONG 107, 107 (Kenneth J. Fasching-Varner, Rema E. Reynolds, Katrice A. Albert & Lori L. Martin
eds., 2014).
31. Mark S. Brodin, The Murder of Black Males in a World of Non-Accountability: The Surreal
Trial of George Zimmerman for the Killing of Trayvon Martin, 59 HOW. L.J. 765 (2016).
32. I have viewed two complete audio/video transcripts of the trial—one recorded gavel to gavel
by WFTV Channel 9 in Sanford, Florida, and the official transcript obtained from the Seminole County
Court. Given the nature of these recordings, precise citations (as with a paper transcript, which was
prohibitively priced) are not feasible.
33. Brodin, supra note 31, at 773.
34. Id. at 776–79, 783.
35. Id. at 771.

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acquittal, and the aftermath have reshaped the American landscape, giving rise
to the Black Lives Matter (BLM) movement.36
George Zimmerman was described in the media as Hispanic but “looking
white,” and was identified as White in the Sanford police report of the
shooting.37 He joined the neighborhood crime watch at his gated community,
Retreat at Twin Lakes, organized by a volunteer coordinator for the Sanford
Police Department who was already overseeing at least ten such groups.38 In
her PowerPoint presentation and the handbook she distributed at the initial
meeting, she emphasized that the Watch volunteers’ role was “being the eyes
and ears” for the police, “not the vigilante.”39 The motto is “We Look Out for
Each Other.”40 “Citizens participating in the Neighborhood Watch program are
not law enforcement officers and should never attempt to apprehend a suspect.
That is a law enforcement officer’s job.”41
Members of a neighborhood watch “are not supposed to confront anyone,”
she warned: “We [the police] get paid to get into harm’s way. You don’t do
that. You just call them from the safety of your home or your vehicle.”42 “This
is not about being a vigilante police force. You’re not even supposed to patrol
on neighborhood watch. And you’re certainly not supposed to carry a gun.”43
Zimmerman was chosen as Watch Captain, without either a background check44
36. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest
Movement
in
U.S.
History,
N.Y.
TIMES
(July
3,
2020),
https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html
[https://perma.cc/65KD-C5CF].
37. Kathleen J. Fitzgerald, The “Whitening” of Latinos, in TRAYVON MARTIN, RACE, AND
AMERICAN JUSTICE, supra note 30, at 26–27.
38. Campbell Robertson & John Schwartz, Shooting Focuses Attention on a Program That Seeks
to Avoid Guns, N.Y. TIMES (Mar. 22, 2012), https://www.nytimes.com/2012/03/23/us/trayvon-martindeath-spotlights-neighborhood-watch-groups.html [https://perma.cc/M2UQ-FS39].
39. Id.
40. SANFORD POLICE DEP’T, NEIGHBORHOOD WATCH BLOCK CAPTAIN HANDBOOK 2019,
https://sanfordfl.gov/wp-content/uploads/2020/07/2019NeighborhoodWatchBlock.pdf
[https://perma.cc/5HV8-NBVN].
41. Michael Muskal & Tina Susman, Rules for Neighborhood Watch Discussed in George
Zimmerman Trial, L.A. TIMES (June 25, 2013), https://www.latimes.com/nation/la-xpm-2013-jun-25la-na-nn-george-zimmerman-neighborhood-watch-20130625-story.html
[https://perma.cc/VK9M5E8N]. The relevant testimony is at 1:30:51–1:32:45 State of Florida v. George Zimmerman (2013),
Seminole Digital Court Recordings.
42. Robertson & Schwartz, supra note 38.
43. MICHAEL A. KNOX, INTERMEDIATE RANGE: THE FORENSIC EVIDENCE IN THE KILLING OF
TRAYVON MARTIN 96 (2012).
44. A background check would have revealed that Zimmerman had been arrested in 2005 for
assaulting an undercover Florida alcohol enforcement agent; the felony charges were dismissed after
Zimmerman completed a pre-trial intervention program. See id. at 15. It would also have included

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or training.45 He had been rejected from at least one police department to which
he applied.46
The four 911 calls reporting suspicious persons that Zimmerman had made
in the months before confronting Martin were also young Black males, none of
whom were arrested.47 On February 26, 2012, he again dialed 911 from his
vehicle to report the Black high school student as someone who “looks like he’s
up to no good or he’s on drugs or something. It’s raining and he’s just walking
around looking about.”48 Trayvon, described by witnesses as a baby-faced
“little boy”49 and referred to by the police detective who interviewed
Zimmerman as the “child” he killed,50 was walking with his hoodie up for the
rain and carried a bag of Skittles and an iced tea while talking to friend Rachel
Jeantel on his cell phone.51 Zimmerman complained to the 911 dispatcher:
“Fucking punks. These assholes, they always get away.”52
As the gated community reportedly was twenty percent AfricanAmerican,53 what apparently triggered Zimmerman’s attention was Trayvon’s
race combined with his youth and attire. Commentators noted that the hoodie,

allegations of domestic violence made to the FBI by his former fiancée, leading to a restraining order
against him. Id. at 16–19. She described Zimmerman as having a bad temper and reported he had
spoken of killing himself during their strained relationship. Id. at 17. Trayvon had no reported history
of violence. Id. at 15.
45. He had never been in the military, received no police training, and had only the minimum
six-hours of firearm training required to obtain his concealed carry permit. Id. at 30.
46. Tom Winter, James Novogrod & Tracy Connor, Prosecutors: George Zimmerman Applied
to Be a Police Officer, NBC NEWS (June 5, 2013), https://www.nbcnews.com/news/usnews/prosecutors-george-zimmerman-applied-be-police-officer-flna6c10215923
[https://perma.cc/2A3E-92N8]; Trial Testimony of Lt. Scott Kearns, July 3, 2013.
47. For the details of Zimmerman’s 911 reports of black males on the premises of the Retreat at
Twin Lakes, see Onwuachi-Willig, supra note 21.
48. Douglas O. Linder, The George Zimmerman Trial: Critical Phone Calls, FAMOUS TRIALS,
https://famous-trials.com/zimmerman1/2297-zimcalls [https://perma.cc/3F7R-4FAJ]. Testimony at
30:00–30:34, State of Florida v. George Zimmerman (2013), Seminole Digital Court Recordings.
49. KNOX, supra note 43, at 60–61.
50. Id. at 171–72.
51. Kim L. Anderson, No Heroes Here, in TRAYVON MARTIN, RACE, AND AMERICAN JUSTICE,
supra note 30, at 21–22.
52. Linder, supra note 48; Abby Rogers, Zimmerman Called Trayvon Martin ‘One of These
Assholes’ In 911 Call, BUS. INSIDER (June 21, 2012), https://www.businessinsider.com/zimmermancalled-trayvon-martin-was-one-of-these-assholes-in-911-call-2012-6
[https://perma.cc/63WHDHUL]. Testimony at 31:49–32:37, State of Florida v. George Zimmerman (2013), Seminole Digital
Court Recordings.
53. Frances Robles, Shooter of Trayvon Martin a Habitual Caller to Cops, PALM BEACH POST
(Mar. 17, 2012), https://www.palmbeachpost.com/story/news/crime/2012/03/19/shooter-trayvonmartin-habitual-caller/7595183007/ [https://perma.cc/GY8F-EV7X].

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closely associated with racial profiling, may have cost him his life.54
Zimmerman apparently believed he had the “sixth sense” touted as the key
neighborhood watch skill—to “instinctively know when something is not
right.”55
The probable cause affidavit ultimately charging Zimmerman with seconddegree murder asserted that Zimmerman had “profiled” Martin and “assumed
Martin was a criminal” because he “did not belong in the gated community.”56
Trayvon was a person of color in a modern Sundown town, and Zimmerman
was the sheriff. That the latter identified as Hispanic in no way immunizes him
from racial stereotyping.57
Armed with a 9 mm semiautomatic handgun loaded with lethal hollowpoint ammunition (in violation of the rules of his neighborhood watch) and
against the explicit instructions of the 911 police dispatcher,58 Zimmerman
pursued,59 confronted, and fatally shot Trayvon Martin through the heart at
point blank range within a minute’s walk of his father’s location in the Twin
Lakes Retreat.60 Zimmerman had never identified himself to his victim as a
neighborhood watch captain, or a concerned citizen, even when Trayvon asked
(as testified to by his friend on the cell phone call), “Why are you following
me?”61 Instead, Zimmerman demanded that the teenager explain his presence
in the gated community—“What are you doing here?”62

54. Chike Jeffers, Should Black Kids Avoid Wearing Hoodies?, in PURSUING TRAYVON
MARTIN: HISTORICAL CONTEXTS AND CONTEMPORARY MANIFESTATIONS OF RACIAL DYNAMICS
129, 129 (George Yancy & Janine Jones eds., 2013). Charles Stuart used the “hoodie” to identify his
fictitious assailant. See Bernard, supra note 10.
55. Muskal & Susman, supra note 41; Neighborhood Watch Skills, NATIONAL NEIGHBORHOOD
WATCH, https://www.nnw.org/neighborhood-watch-skills [https://perma.cc/4LSN-9UKW].
56. Jennifer Harvey, Distorted Vision and Deadly Speech, in PURSUING TRAYVON MARTIN:
HISTORICAL CONTEXTS AND CONTEMPORARY MANIFESTATIONS OF RACIAL DYNAMICS, supra note
54, at 105; Probable Cause Affidavit, State v. George Zimmerman (2013),
https://archive.nytimes.com/www.nytimes.com/interactive/2012/04/12/us/13shooterdocument.html?ref=us [https://perma.cc/3ZEW-K28L].
57. Cynthia Lee, (E)Racing Trayvon Martin, 12 OHIO ST. J. CRIM. L. 91, 112–13 (2014).
58. Linder, supra note 48. Dispatcher Sean Noffke so testified at the trial.
59. Zimmerman admitted to the 911 operator that he was following Martin, prompting the
dispatcher’s “We don’t need you to do that.” See George Yancy & Janine Jones, Introduction, in
PURSUING TRAYVON MARTIN: HISTORICAL CONTEXTS AND CONTEMPORARY MANIFESTATIONS OF
RACIAL DYNAMICS, supra note 54, at 1, 3. And Trayvon was on his cell phone with his friend Rachel
Jeantel while being stalked. She testified that Martin said, “Why are you following me?” and moments
later, “Get off, get off!” Martin described his assailant as “crazy and creepy.” Linder, supra note 48.
60. Brodin, supra note 31, at 772.
61. Linder, supra note 48.
62. George Zimmerman Trial at 07:19–07:21, State of Florida v. George Zimmerman (2013),
Seminole Digital Court Recordings.

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Zimmerman was on a mission—this punk was not getting away on his
watch. And so, Trayvon experienced what the prosecutor at trial called a child’s
worst nightmare—being chased in the dark by a menacing stranger.63
The lead detective on the case asked Zimmerman: “Did it ever occur to you
to go ahead and ask this person what he was doing out there?,” observing that
“if you had, we probably wouldn’t be here right now.”64 The detective noted
that Martin “wasn’t a violent kid,” wasn’t on drugs, wasn’t involved in any
criminal activity, had every right to be there, and to defend himself.65
The police interviews with Zimmerman that night and in the days following
look more like defense preparation than police interrogation. The detective
advised Zimmerman: “Had [Martin] been a goon, a bad kid, two thumbs-up,
you know. [But he] does not fit the profile of what occurred, which is another
unfortunate thing that we got going here.”66 It’s clear whose side the Sanford
police were on. If there is any doubt, the detective closed the interview: “We’re
working for you. We’ve got to open your mind, and if there is anything that
needs to be changed, this is it.”67
The Sanford police treated Zimmerman almost like one of their own.
Police witnesses during the trial would refer to the defendant as “George.”68
Zimmerman referred to Trayvon as “the suspect” in his written statement to the
police,69 and they acted accordingly.
After the softball interview, this man who had just fatally shot an unarmed
teenager was released without further investigation, the police accepting his
version of events, which he re-enacted on video with them the next day. Having
successfully eluded Zimmerman’s pursuit, he claimed, Martin suddenly jumped
out from behind bushes, punching the much larger adult in the nose, tackling
him, banging his head into the sidewalk, suffocating him, and screaming
“you’re going to die tonight, [expletive].”70 Then Martin, on top of
63. George Zimmerman Trial at 05:52–006:27, State of Florida v. George Zimmerman (2013),
Seminole Digital Court Recordings; see also Erin Donaghue, George Zimmerman Trial: In Closing
Arguments, Defense Attorney Asks Jury Not to “Fill in Gaps” in State’s Case, CBS NEWS (July 12,
2013),
https://www.cbsnews.com/news/george-zimmerman-trial-in-closing-arguments-defenseattorney-asks-jury-not-to-fill-in-gaps-in-states-case/ [https://perma.cc/JHJ6-P9DF].
64. KNOX, supra note 43, at 172.
65. Id.
66. Id. at 173 (emphasis added).
67. Id. at 182.
68. Brodin, supra note 31, at 775.
69. KNOX, supra note 43, at 135–36.
70. Richard Luscombe, George Zimmerman Video Shows Morning-After Re-Enactment of
Killing, GUARDIAN (June 21, 2012), https://www.theguardian.com/world/2012/jun/21/georgezimmerman-video-confrontation [https://perma.cc/4U5C-9ZP9]. The State’s medical examiner

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Zimmerman, supposedly reached for Zimmerman’s gun hidden in a holster at
his back and under his shirt—leaving Zimmerman no choice but to shoot
Trayvon in self-defense.71 After suffering the close-range fatal bullet wound
through his heart, Martin (according to Zimmerman) was nonetheless able to
yell, “You got me!” before dying.72 Expert testimony from the medical
examiner at trial made such an exclamation highly improbable, but this was
contested by a defense expert.73
Trayvon, of course, had no say in what had happened. As Ta-Nehisi Coates
put it, “Your side of the story is irrelevant if you are dead.”74
It was not until the day after the shooting, when his father filed a missing
person report, that Trayvon’s parents were notified by police of his death.75 In
the week following, news reports circulated that Martin had traces of marijuana
in his blood at autopsy; no drug screens were performed on Zimmerman.76
disputed this, finding Zimmerman’s injuries “very insignificant,” a matter contested by the defense.
Michael Muskal, Medical Examiner Calls Zimmerman’s Injuries “Very Insignificant,” L.A. TIMES
(July 2, 2013), https://www.latimes.com/nation/nationnow/la-na-nn-george-zimmerman-medicalexaminer-20130702-story.html [https://perma.cc/LW5J-ZDA4].
71. LISA BLOOM, SUSPICION NATION: THE INSIDE STORY OF THE TRAYVON MARTIN INJUSTICE
AND WHY WE CONTINUE TO REPEAT IT 57–61 (2014).
72. Christina Sterbenz, Medical Examiner: Trayvon Martin Lived ‘In Pain’ For Up To 10
Minutes, BUS. INSIDER (July 5, 2013), https://www.businessinsider.com/trayvon-martin-lived-aftergetting-shot-2013-7 [https://perma.cc/T3V9-ZZG6]. Zimmerman had no explanation for why Martin
would attack him after he had escaped his pursuit. KNOX, supra note 43, at 183. The “crazed black
male” and “drug-crazed Negro” have become familiar stories in the shootings of unarmed black men.
Some version was put forth “when . . . Ferguson police officer Darren Wilson shot and killed teenager
Michael Brown, when . . . Chicago police officer Jason Van Dyke shot and killed teenager Laquan
McDonald, when . . . Minnesota police officer Jeronimo Yanez shot and killed a defenseless Philando
Castile, and when . . . Tulsa police officer Betty Jo Shelby shot and killed a nonthreatening Terence
Crutcher.” See Carl L. Hart, The Claim That Drugs Killed George Floyd Relies on a Racist Trope,
VOX (Apr. 8, 2021), https://www.vox.com/first-olperson/22373806/george-floyd-trial-derek-chauvinminneapolis-black-lives-matter [https://perma.cc/8U6Y-YD66].
73. Sterbenz, supra note 72; Allie Bidwell, Forensic Pathologist Says Trayvon Martin Was on
Top
of
Zimmerman,
U.S.
NEWS
&
WORLD
REP.
(July
9,
2013),
https://www.usnews.com/news/newsgram/articles/2013/07/09/forensic-pathologist-says-trayvonmartin-was-on-top-of-zimmerman [https://perma.cc/JS55-MDME]. The testimony is at 1:13:29–
1:15:57, State of Florida v. George Zimmerman (2013), Seminole Digital Court Recordings.
74. Ta-Nehisi Coates, Stand Your Ground and Vigilante Justice, ATLANTIC (Mar. 22, 2012),
https://www.theatlantic.com/national/archive/2012/03/stand-your-ground-and-vigilantejustice/254900/ [https://perma.cc/V75K-SUAV].
75. CNN Editorial Research, Trayvon Martin Shooting Fast Facts, CNN (Feb. 14, 2022),
https://www.cnn.com/2013/06/05/us/trayvon-martin-shooting-fast-facts/index.html
[https://perma.cc/T8LG-FDCR].
76. Jacqueline Anderson, Sarah Lucia Hoagland & Anne Leighton, Now You See It, Now You
Don’t: Magic Tricks of White Supremacy in the United States, in PURSUING TRAYVON MARTIN:

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After public pressure both locally and nationally, Zimmerman was finally
charged with second-degree murder in April.77 He was tried before an allfemale jury, five White and one Hispanic.78 The population of Seminole
County, from which the jury was drawn, was eleven percent Black, but no
Black person sat on the panel.79 Voir dire questioning of potential jurors
focused mostly on exposure to media coverage of the case, not its racial
dimension.80
For strategic reasons Zimmerman did not formally invoke Florida’s Stand
Your Ground law,81 but it clearly hovered over the trial. The product of National
Rifle Association drafting and intense lobbying,82 the law eliminates the
common law duty to retreat in the face of danger and provides complete
immunity (criminal as well as civil) to a person using force (including lethal)
within the parameters of the statute.83 These laws, now adopted around the
country (Florida’s was the first), expand the license for defense of one’s
“castle” to anywhere and everywhere. Testimony at trial established that
Zimmerman, a criminal justice student at Seminole State College, was well

HISTORICAL CONTEXTS AND CONTEMPORARY MANIFESTATIONS OF RACIAL DYNAMICS, supra note
54, at 25, 29; Barbara Liston, Trayvon Evidence Fails to Answer Who Screamed for Help, REUTERS
(May 17, 2012), https://www.reuters.com/article/us-usa-florida-shooting/trayvon-evidence-fails-toanswer-who-screamed-for-help-idUSBRE84G1HF20120518 [https://perma.cc/E3EK-2UX5].
77. Brodin, supra note 31, at 773.
78. Cara Buckley, 6 Female Jurors Are Selected for Zimmerman Trial, N.Y. TIMES (June 20,
2013),
https://www.nytimes.com/2013/06/21/us/6-female-jurors-are-selected-for-zimmermantrial.html [https://perma.cc/22NJ-W7U3].
79. Id.
80. Dan Zak, In Zimmerman Case, Potential Jurors Seem Largely Uninterested, WASH. POST
(June 13, 2013), https://www.washingtonpost.com/lifestyle/style/in-zimmerman-case-potentialjurors-seem-largely-uninterested/2013/06/13/a70772ee-d441-11e2-a73e-826d299ff459_story.html
[https://perma.cc/4DCT-6P9F]. The defense retained one of the best-known jury consultants in the
country.
81. See Lee, supra note 57, at 111–13.
82. See generally Shahabudeen K. Khan, One Decade Later: Florida’s Stand Your Ground Law
Alive and Well, 12 INTERCULTURAL HUM. RTS. L. REV. 115, 125–30 (2017); Ahmad Abuznaid,
Caroline Bettinger-López, Charlotte Cassel & Meena Jagannath, “Stand Your Ground” Laws:
International Humans Rights Law Implications, 68 U. MIA. L. REV. 1129, 1132 (2014); Tamara Rice
Lave, Shoot to Kill: A Critical Look at Stand Your Ground Laws, 67 U. MIA. L. REV. 827, 836, 840
(2013); Gina Jordan, The Lobbyist Behind Florida’s Stand Your Ground Law, NPR (Mar. 29, 2012),
https://www.npr.org/2012/03/29/149591067/the-lobbyist-behind-floridas-stand-your-ground-law
[https://perma.cc/L23H-97SB].
83. FLA. STAT. ANN. § 776.013 (West 2022).

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aware of the law of self-defense at the time of his encounter with Martin, and
during police questioning afterward.84
Remarkably and inexplicably, it was the prosecution that put Zimmerman’s
version of events before the jury,85 through its own witnesses, recordings of
Zimmerman’s interviews, and Zimmerman’s video “re-creation” of the crime.
The teenager escapes from his pursuit, but then comes back, jumps him from
behind bushes, punches him, knocks him to the ground, bangs his head on the
sidewalk, reaches for his gun holstered in his back waistband, all the while
screaming “You’re gonna die tonight . . . .”86 The accused was thus relieved of
having to take the stand, under oath, and subject this dubious story to crossexamination.
The State’s case was further undermined when the judge permitted the
defense, during its closing argument, to show the jurors an animated video with

84. Christina Sterbenz, Former Professor Says He Taught George Zimmerman The Law He
Claimed
He
Knew
Nothing
About,
BUS.
INSIDER
(July
3,
2013),
https://www.businessinsider.com/alexis-carter-testifies-in-stand-your-ground-2013-7
[https://perma.cc/NJA5-TSTF]. The testimony is at 4:14:22–4:17:51, State of Florida v. George
Zimmerman (2013), Seminole Digital Court Recordings.
85. I have reached out to the prosecution team for an explanation on several occasions but have
received no response. It is axiomatic that a defendant’s own statements, while admissible against him,
are not admissible when offered by him, as they are self-serving hearsay. See FED. R.
EVID. 801(d)(2)(A); see also FED. R. EVID. 801(d)(2)(A) advisory committee’s note. The error in
permitting the jurors to hear (and see) the defendant’s version of events in this unchecked form was
compounded when the judge included this boilerplate instruction:
GEORGE ZIMMERMAN’S STATEMENTS
A statement claimed to have been made by George Zimmerman outside of court
has been placed before you. Such a statement should always be considered with
caution and be weighed with great care to make certain it was freely and
voluntarily made. Therefore, you must determine from the evidence that George
Zimmerman’s alleged statement was knowingly, voluntarily and freely made. In
making this determination, you should consider the total circumstances, including
but not limited to
1. whether, when George Zimmerman made the statement, he had been
threatened in order to get him to make it, and
2. whether anyone had promised him anything in order to get him to make it. If
you conclude George Zimmerman’s out of court statement was not freely and
voluntarily made, you should disregard it.
Jury Instructions, Florida v. Zimmerman, No. 12-CF-1083-A (Fla. Cir. Ct. July 13, 2013),
http://law2.umkc.edu/faculty/projects/ftrials/zimmerman1/Zimjuryinstructions.pdf
[https://perma.cc/96KN-6MKB]. Obviously directed at incriminatory statements offered against the
accused, the jurors may well as seen this as license to credit Zimmerman’s inadmissible exculpatory
statements.
86. See BLOOM, supra note 71, at 57.

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Martin, in a hoodie, throwing the first punch at Zimmerman.87 The jurors went
into their deliberations with this image in their minds.
The prosecution team also failed to object when its own police witnesses
were asked on defense cross-examination whether they believed Zimmerman’s
story, and answered in the affirmative.88 It was not until the next day that they
finally lodged an objection and motion to strike the answer to this clearly
inadmissible testimony opining on a party’s credibility. The judge struck the
testimony belatedly, after jurors had a day to absorb it and the damage to the
State’s case had been done.89
The prosecution deliberately kept race out of its case, closing with this
confusing observation:
Race. This case is not about race. It’s about right and
wrong. . . . Ask yourselves, all things being equal, if the roles
were reversed and it was 28 year old George Zimmerman
walking home in the rain with a hoodie on to protect himself
from the rain, walking through that neighborhood, and a 17
year old driving around in a car who called the
police . . . . [a]nd if it was Trayvon Martin who had shot and
killed George Zimmerman, what would your verdict be? That’s
how you know it is not about race.90
The defense and trial judge obligingly cooperated, the former happy to
color-blind the story, and the latter even forbidding use of the term “racial
profiling” to describe what happened on February 26.91 The White jurors were
87. Patrik Jonsson, Zimmerman Trial For Jury, Anguished Task to Resolve Death of Trayvon
Martin,
CHRISTIAN
SCI.
MONITOR
(July
12,
2013),
http://www.csmonitor.com/USA/Justice/2013/0712/Zimmerman-trial-For-jury-anguished-task-toresolve-death-of-Trayvon-Martin [https://perma.cc/YAP2-GJNU].
88. Brodin, supra note 31, at 776.
89. George Zimmerman Trial — Day 7 — Part 1, YOUTUBE (Feb. 7, 2013),
https://www.youtube.com/watch?v=erVzhz-OsYc [https://perma.cc/8ZM5-VN2A].
90. Cynthia Lee, Denying the Significance of Race: Colorblindness and the Zimmerman Trial,
in TRAYVON MARTIN, RACE, AND AMERICAN JUSTICE: WRITING WRONG, supra note 30, at 31; see
also Jonathan Capehart, Race and the George Zimmerman Trial, WASH. POST (July 12, 2013),
https://www.washingtonpost.com/blogs/post-partisan/wp/2013/07/12/race-and-the-georgezimmerman-trial/ [https://perma.cc/3JXK-UMZU]. The closing is at 3:48:39–3:49:49, State of Florida
v. George Zimmerman (2013), Seminole Digital Court Recordings. A dramatic example of the
effectiveness of such a race-switching comparison appears in the film version of John Gresham’s A
Time to Kill, depicting the trial of a Black man for murdering the two White men who brutally raped
his ten-year-old daughter. Imagine, the prosecutor argues in closing, that the victim is blond and White,
and her father kills her black assailants. In the book and the film, the jury acquits. But the Zimmerman
prosecutors used it to illustrate their case was not about race, when in fact it was all about race.
91. Lisa Bloom, Zimmerman Prosecutors Duck the Race Issue, N.Y. TIMES (July 15, 2013),
https://www.nytimes.com/2013/07/16/opinion/zimmerman-prosecutors-duck-the-race-issue.html

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also apparently willing to assume that his race had nothing to do with Trayvon’s
death.
The George Zimmerman trial was like telling Noah’s story but leaving out
the part about The Flood. The courtroom drama played out without its main
character—the racial pathology behind this senseless killing, the irrational fear
of The Dark Other.
The defense team, though, cleverly exploited the racial fears of the allfemale jury. A young White mother living in Twin Lakes Retreat was called to
tell the jurors how she had cowered in a closet, shielding her baby, as two
African-American males burglarized her home months before.92 The
prosecution declined to object, despite the very questionable relevance and
demonstrable prejudicial impact of the stereotype of the Black male terrorizing
a White woman.93 And one of the last exhibits the defense showed the jury was
the surveillance camera footage of Trayvon buying snacks in the 7-Eleven prior
to his killing—the kind of chilling image of an armed robbery often shown on
the nightly news.94
The trial judge instructed the jury regarding Florida’s generous definition
of self-defense but restricted the jurors’ attention to the immediate final
encounter between the two, ignoring Zimmerman’s stalking and confrontation
that preceded it.95 She also declined to inform them (as the prosecution
requested) that if Zimmerman had provoked the confrontation, under Florida
law he forfeited his defense.96
Given all this, the verdict, not surprisingly, was not guilty on both counts,
murder and the lesser-included offense of manslaughter.97 Two jurors
subsequently indicated in interviews that Stand Your Ground played a role in
[https://perma.cc/BVS9-UA7K]; see also Manuel Roig-Franzia, Race is Playing Minor Part in
Zimmerman Prosecution, WASH. POST, July 3, 2013, at A1.
92. Trial Testimony of Olivia Bertalan at 4:19:38–4:22:21, State of Florida v. George
Zimmerman (2013), Seminole Digital Court Recordings; see also Douglas O. Linder, The George
Zimmerman Trial: An Account, FAMOUS TRIALS, https://famous-trials.com/zimmerman1/2319-home
[https://perma.cc/MD4W-4MXX].
93. Anderson, supra note 51, at 21; Addie C. Rolnick, Defending White Space, 40 CARDOZO L.
REV. 1639, 1672–73 (2019).
94. Bloom, supra note 91.
95. Joe Kelley, Document: Instructions for George Zimmerman Jury, ATLANTA J.-CONST. (July
12,
2013),
https://www.ajc.com/news/national/document-instructions-for-george-zimmermanjury/WUFXx2NcUiZjmdXk2sV1zL [https://perma.cc/8HYW-6DW5].
96. CAROL ANDERSON, THE SECOND: RACE AND GUNS IN A FATALLY UNEQUAL AMERICA 151
(2021); see also Kelley, supra note 95. The instructions are at 4:08:17–4:09:13, State of Florida v.
George Zimmerman (2013), Seminole Digital Court Recordings. See infra notes 321–38 and
accompanying text.
97. Brodin, supra note 31 at 783.

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their deliberations, notwithstanding its explicit absence from the proceedings.98
It apparently did not occur to them that Trayvon, not Zimmerman, was the actor
who was compelled to defend himself. It did occur to conservative Fox News
host Sean Hannity in his exclusive interview with George Zimmerman:
“[M]aybe [Martin was running from you because] he was afraid of you and
didn’t know who you were?”99
Georgetown law professor Paul Butler spoke for many observers of the
case:
If we reversed the races here, a not guilty verdict is impossible
to imagine. So think about a big black man who followed a
skinny white teenager, gets into a fight with him. The skinny
white guy isn’t armed, and the big black guy shoots him dead
and then claims self-defense. Does anybody think that a jury
would buy that?100
How could the jurors assess the reasonableness of Zimmerman’s selfdefense without recognizing that his suspicions about Trayvon most probably
were generated by stereotypes and implicit bias against, and fear of, Black
youth?101 And what about the possible bias that jurors themselves may have
brought to their deliberations? As one scholar put it, “Martin’s mere presence
as a young Black man in the predominantly White middle-class gated
community had constituted a threat to the sanctity of Zimmerman’s [and the
jurors’] expansive castle.”102
We will come back to these questions below.103
The jurors apparently dismissed the compelling testimony of Martin’s
nineteen-year-old friend Rachel Jeantel, who was on her cell phone with him
during the entire encounter while he was stalked by what he described as a
creepy White guy.104 Over two days, often in tears (and apparently not
adequately prepared by the prosecutors), she related Martin’s contemporaneous
account of his last minutes, pleading with Zimmerman—“Why are you
following me?” and the watch captain’s response “What are you doing around

98. Johnson, supra note 27, at 488.
99. KNOX, supra note 43, at 184.
100. Tell Me More, Inside the Zimmerman Verdict, NPR (July 15, 2013),
https://www.npr.org/templates/story/story.php?storyId=202335038 [https://perma.cc/TN4S-KTVN].
101. See Cynthia Lee, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet PostRacial Society, 91 N.C. L. REV. 1555, 1562–63 (2013).
102. LIGHT, supra note 24, at 166.
103. See infra notes 279–99 and accompanying text.
104. Linder, supra note 48.

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here?” Moments later Martin screamed “Get off, get off!” Then the single
gunshot.105
Defense cross-examination was withering, overbearing, and disrespectful
of this young Black woman with a soft voice relating a traumatic experience.
The prosecutors sat by, rarely objecting or protecting their witness.106 Much of
the media was equally disrespectful in their coverage of her testimony.107
Juror B29—described as Hispanic—later had second thoughts about the
verdict, suggesting that Zimmerman was morally culpable but not legally
guilty—he “got away with murder.”108 She “believed Zimmerman’s story, and
[said] that she’d welcome him as a neighbor to her community if . . . he didn’t
go too far. . . . I think his heart was in the right place. It just went terribly
wrong.”109
Barack Obama’s Justice Department declined to pursue civil rights
charges.110
As a coda, George Zimmerman announced in 2016 that he was selling the
9 mm pistol used to kill Trayvon as an “American Firearm Icon,” a “piece of
American history.”111

105. Seni Tienabeso & Matt Gutman, Trayvon Martin Told Friend About Man Following Him
in Final Moments, ABC NEWS (June 26, 2013), https://abcnews.go.com/US/trayvon-martin-toldfriend-man-final-moments/story?id=19490796 [https://perma.cc/LUS7-UEN3]. The testimony of
Rachel Jeantel is at 2:26:53–2:32:24, 5:08–5:28 State of Florida v. George Zimmerman (2013),
Seminole Digital Court Recordings. The testimony of Rachel Jeantel is also at George Zimmerman
Trial,
YOUTUBE
(June
26,
2013),
https://www.youtube.com/watch?v=_iYVUt3_HOQ&list=PLYEBn4w1XOIeEsjIiyfTohqC6BQLI81
vx&index=14 [https://perma.cc/H7X4-KPJY]. For the CNN transcript of the Jeantel Day 3 testimony,
see CNN Newsroom, Continuing Zimmerman Trial Coverage; Trayvon Martin’s Girlfriend Testifies,
CNN
(June
26,
2013),
http://edition.cnn.com/TRANSCRIPTS/1306/26/cnr.10.html
[https://perma.cc/22G2-A6J3].
106. Daryl Lynn Dance, Can Rachel Jeantel Speak?, 58 CLA J. 139, 143 (2015).
107. See Kirsten T. Edwards, Is it “Marissa” or “Michelle?”: Black Women as Accessory to
Black Manhood, in TRAYVON MARTIN, RACE, AND AMERICAN JUSTICE, supra note 30, at 95–96.
108. William Saletan, Did George Zimmerman Get Away with Murder?, SLATE (July 26, 2013),
https://slate.com/news-and-politics/2013/07/did-george-zimmerman-get-away-with-murder-no-jurorb29-is-being-framed.htm [https://perma.cc/K8HM-TWU2].
109. She insisted that race played no part in her deliberations. Fitzgerald, supra note 37, at 27.
110. Mark Berman & Sari Horwitz, George Zimmerman Won’t Face Civil Rights Charges in
Trayvon Martin’s Death, WASH. POST (Feb. 24, 2015), https://www.washingtonpost.com/news/postnation/wp/2015/02/24/george-zimmerman-wont-face-civil-rights-charges-in-trayvon-martins-death/
[https://perma.cc/S3PH-DZ37].
111. Elliott C. McLaughlin, George Zimmerman’s Auction for Gun That Killed Trayvon Martin
Ends, CNN (May 18, 2016), https://www.cnn.com/2016/05/18/us/george-zimmerman-gunauction/index.html#:~:text=George%20Zimmerman's%20auction%20for%20the,website%20that%2
0hosted%20the%20auction [https://perma.cc/N667-BQPW]. Linder, supra note 92.

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An immediate legacy of the case was that Black parents needed to expand
their warnings in “The Talk”112 with their children to include the risks posed by
their White neighbors. The fear was no longer just the police—White civilians
could apparently kill unarmed Black males with impunity. If there was “good
reason for George Zimmerman to shoot his gun [because] he was scared,”113
what Black youth is safe if Trayvon was not? He carried no weapon, committed
no crime, was lawfully on the premises, threatened no one. What did he do
wrong? What is a mother to advise her son to avoid such a fate?
One is reminded of W.E.B. Dubois’ question in 1903 to his fellow AfricanAmericans: “How does it feel to be a problem?”114
Prison activist George Jackson some years ago observed that “Anyone who
can pass the civil service examination today can kill me tomorrow. Anyone who
passed the civil service examination yesterday can kill me today with complete
immunity.”115 George Zimmerman, of course, did not pass any such
examination. The neighborhood protector had become its predator.
The acquittal set off demonstrations across the nation, precursors to the
Black Lives Matter movement (the phrase was first used regarding the Martin
case)116 and the protests after the police killings of Michael Brown in Ferguson,
twelve-year-old Tamir Rice in Cleveland, Eric Garner in Staten Island, and
George Floyd in Minneapolis.117

112. TA-NAHISI COATES, BETWEEN THE WORLD AND ME 78 (2015).
113. Anderson, Hoagland & Leighton, supra note 76, at 30.
114. W.E.B. DU BOIS, THE SOULS OF BLACK FOLK 7 (1903).
115. GEORGE L. JACKSON, BLOOD IN MY EYE 7 (1990).
116. Jessica Guynn, Meet the Woman Who Coined #BlackLivesMatter, USA TODAY (Mar. 4,
2015), https://www.usatoday.com/story/tech/2015/03/04/alicia-garza-black-lives-matter/24341593/
[https://perma.cc/E5G3-XGRD].
117. Reis Thebault, Trayvon Martin’s Death Set off a Movement That Shaped a Decade’s
Defining
Movements,
WASH.
POST
(Feb.
25,
2022),
https://www.washingtonpost.com/nation/2022/02/25/trayvon-martins-death-set-off-movement-thatshaped-decades-defining-moments/ [https://perma.cc/8GD5-Z7JS]; Matt Zapotosky, Justice Dept.
Quietly Curtailed Civil Rights Investigation into Tamir Rice Killing, WASH. POST (Oct. 30, 2020),
https://www.washingtonpost.com/national-security/tamir-rice-justice-departmentinvestigation/2020/10/30/be8b60c8-1a35-11eb-aeec-b93bcc29a01b_story.html
[https://perma.cc/47UJ-R8L4]; Abby Ohlheiser, Elahe Izadi & Cameron Barr, N.Y. Grand Jury
Declines to Indict Officer in Death of Eric Garner, Igniting Protests, WASH. POST (Dec. 3, 2014),
https://www.washingtonpost.com/politics/2014/12/03/8dc55084-7b2b-11e4-84d47c896b90abdc_story.html?tid=a_inl_manual&itid=lk_inline_manual_46
[https://perma.cc/ZYL2SK8H].

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Elijah McClain died when placed in a chokehold by Aurora, Colorado
police while paramedics injected him with a fatal dose of ketamine.118 Police
were responding to a 911 call reporting the unarmed twenty-three-year-old
Black man wearing a ski mask as “sketchy.”119 Like Martin, his crime was
walking home Black from a convenience store carrying an iced tea.120
Trayvon’s fate was cruel, but not unusual.
American public opinion was sharply divided along racial lines over the
Zimmerman verdict,121 consistent with the pronounced divide in public opinion
on such defining events as the Rodney King beating by L.A. police and the
acquittal of O.J. Simpson.122
Now to put the Trayvon Martin case in its larger historical context.

118. Patty Nieberg, Officials: Police in Elijah McClain Hometown Racially Biased, AP NEWS
(Sept.
15,
2021),
https://apnews.com/article/police-colorado-aurora3d031ab7c20a5496c5249535cefdcf85 [https://perma.cc/9NJK-SFCV].
119. Id.
120. Id.; Michael Levenson, Police in Aurora, Colo., Engaged in Racially Biased Policing,
Inquiry Finds, N.Y. TIMES (Sept. 15, 2021), https://www.nytimes.com/2021/09/15/us/elijah-mcclainaurora-police-department.html [https://perma.cc/TH7S-8JQ8]. The family received a $15 million
settlement. Colleen Slevin, Denver Suburb to Pay $15M to Settle Elijah McClain Lawsuit, AP NEWS
(Nov.
19,
2021),
https://apnews.com/article/lawsuits-colorado-denver-aurorab12e7a524a5e8c3e144aed5849a7ce73 [https://perma.cc/B7NS-B43Z].
121. Alana Levinson, Polls Show Wide Racial Gap on Trayvon Martin Case, NPR (July 22,
2013),
https://www.npr.org/sections/itsallpolitics/2013/07/22/204595068/polls-show-wide-racialgap-on-trayvon-martin-case [https://perma.cc/T85R-SD6G]; Frank Newport, Blacks, Nonblacks Hold
Sharply
Different
Views
of
Martin
Case,
GALLUP
(Apr.
12,
2012),
https://news.gallup.com/poll/153776/blacks-nonblacks-hold-sharply-different-views-martincase.aspx [https://perma.cc/J4P4-ABQ8]; Jon Cohen, Zimmerman Verdict: 86 Percent of African
Americans Disapprove, WASH. POST (July 22, 2013), https://www.washingtonpost.com/blogs/postpolitics/wp/2013/07/22/zimmerman-verdict-86-percent-of-african-americans-disapprove/
[https://perma.cc/RB8A-HWQ8]; Jon Cohen & Dan Balz, Race Shapes Zimmerman Verdict Reaction,
WASH. POST (July 22, 2013), https://www.washingtonpost.com/politics/race-shapes-zimmermanverdict-reaction/2013/07/22/3569662c-f2fc-11e2-8505-bf6f231e77b4_story.html
[https://perma.cc/TFZ2-SZTU].
122. Emily Shapiro, Nearly 70% of Americans Say Race Relations Are Bad, New Poll Says, ABC
NEWS (July
14,
2016),
https://abcnews.go.com/US/70-americans-race-relations-bad-pollshows/story?id=40573062 [https://perma.cc/4Q4V-BKYF]; Rory Carroll, OJ Simpson: An Eternal
Symbol of Racial Division—or Has America Moved On?, GUARDIAN (Oct. 1, 2017),
https://www.theguardian.com/us-news/2017/oct/01/oj-simpson-prison-release-america-race-debate
[https://perma.cc/QX9F-282Q].

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III. THE “NEIGHBORHOOD WATCH” AND THE AMERICAN TRADITION OF
VIGILANTISM

WARNING

I~
NEIGHBORHOOD
WATCH
ALL SUSPICIOUS ACTIVITY
REPORTED TO THE POLICE

1-·-1

[T]he Neighborhood Watch, though often touted as a positive
community-based crime prevention tactic, can actually be a
source of abuse given its inherent exclusionary bias, and
becomes even riskier when combined with a dangerous mix of
permissive Concealed Carry and Stand Your Ground laws.
Without a profound reassessment of the merits of
Neighborhood Watch, the various states that already have
Stand Your Ground and liberal Concealed Carry laws can
expect . . . reruns of the Trayvon Martin tragedy.123
“Neighborhood Watch Captain” may have been an unfamiliar term when
reports of Trayvon Martin’s killing first appeared. Yet such anti-crime groups
had been forming for years, particularly in gated communities like George
Zimmerman’s.124 They trace back to the night watchmen in colonial
settlements, and later to slave patrols,125 and have become more formalized

123. Johnson, supra note 27, at 460.
124. Sharon Finegan, Watching the Watchers: The Growing Privatization of Criminal Law
Enforcement and the Need for Limits on Neighborhood Watch Associations, 8 U. MASS. L. REV. 88,
101 (2013).
125. “[T]he review of the literature clearly establishes that a legally sanctioned law enforcement
system existed in America before the Civil War for the express purpose of controlling the slave
population and protecting the interests of slave owners. The similarities between the slave patrols and
modern American policing are too salient to dismiss or ignore. Hence, the slave patrol should be
considered a forerunner of modern American law enforcement.” K.B. Turner, David
Giacopassi & Margaret Vandiver, Ignoring the Past: Coverage of Slavery and Slave Patrols in
Criminal Justice Texts, 17 J. CRIM. JUST. EDUC. 181, 186 (2006).

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since 1972 when USAonWatch was created within the National Sheriffs
Association.126
With widely varying degrees of training, monitoring, responsibilities, and
coordination, there are now tens of thousands of such “watch” groups, what one
scholar dubs “Do-It-Your-Self (DIY) Security.”127 Most are in predominantly
White communities128 and cover a substantial part of the U.S. population.129
Those who have studied this proliferation note the obvious—the purpose is to
keep out The Other, The Undesirable, The Stranger, often meaning
minorities.130 The Us/Them boundary created reinforces our society’s fears,
stereotypes, and prejudices. Social psychology and other disciplines have
closely examined the depth of the bias, much unconscious, that lies behind
distinguishing one’s group from The Other.131 Regarding the identification of
threats, “the grim reality is that [citizens patrolling their neighborhoods do so]
through the prism of widespread social biases.”132
“[M]embers of neighborhood watch programs often do not have the tools
or insight to exercise the discretion or restraint that police utilize use to ensure
that individuals’ rights are protected and constitutional safeguards are
followed.”133 Although participants are admonished against any form of
intervention, some have become, in the words of one observer, “not
‘neighborhood watchers’ but ‘neighborhood instigators’, a form of pseudopolice without any of the limitations that apply to law enforcement.”134
Groups formed to simply report suspicious activity have transformed, in
some cases, into vigilante justice, even provoking violence rather than
preventing it. New Yorkers have been familiar for decades with the Guardian
126. BUREAU JUST. ASSISTANCE, NEIGHBORHOOD WATCH MANUAL: USAONWATCH—
NATIONAL
NEIGHBORHOOD
WATCH
PROGRAM
1
(2010),
https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/nsa_nw_manual.pdf
[https://perma.cc/JAC5-465M].
127. LIGHT, supra note 24, at viii.
128. In contrast, police auxiliaries are more formally structured, trained, and monitored by the
departments. See Johnson, supra note 27, at 471–72. The New York City Auxiliary Police Program
has numbered well over 5,000 members, who receive 50 hours of training and pass written and physical
exams.
129. Some estimates are 40%. See Finegan, supra note 124, at 102.
130. See Johnson, supra note 27, at 464–67.
131. See generally ALLPORT, supra note 22.
132. LIGHT, supra note 24, at 165.
133. Finegan, supra note 124, at 106.
134. Ben Treutler, Defining the Mission and Identity of the Neighborhood Watch, and How We
Can Make Them Better, JOHNS HOPKINS UNDERGRADUATE L. REV. (Feb. 20, 2019),
https://jhulr.org/2019/02/20/the-problems-with-neighborhood-watch-policies-and-how-we-canbegin-to-fix-them/ [https://perma.cc/QG88-734V].

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Angels, a crime-watch group who became “street icons for patrolling scuzzy
subway cars, intimidating chain snatchers, making the occasional citizen’s
arrest, and irritating the police.”135 Newark residents saw a “highly organized”
White vigilante group (equipped with two-way radios and covering carefully
planned routes) patrol Black neighborhoods in the 1960s after urban uprisings
spurred by police killings and assassinations.136
These community crime-prevention groups, like the rest of American
society, have race embedded within, conscious or otherwise.137 Social science
has taught us that racial stereotypes deep within our psyches can drive behavior
even if the actor is not a racist.138 So all the speculation about whether George
Zimmerman is himself a racist is really beside the point.
The groups are most active in “Whitopias,” White enclaves (usually
affluent) that are spreading across the nation as people of color increasingly
occupy the cities and suburbs.139 “Barriers like gates, guard towers, policies that
require visitors to register their license plates upon entering a community, signs
warning of security cameras, and ever-vigilant neighborhood watch programs
exist to police the boundaries of Whitopias.”140 The gated community is, in
some sense, the heir to the Sundown Towns of uglier racial times.141
Add to the mix that “watchers” like George Zimmerman may be armed,
untrained in de-escalation, and highly suspicious of The Other—and you have
the recipe for the Martin killing. Stand Your Ground laws142 serve to “unleash
135. Bruce Handy, Back to the Eighties: Crime, Yucky Subways, and the Guardian Angels!, NEW
YORKER (Oct. 11, 2021), https://www.newyorker.com/magazine/2021/10/18/back-to-the-eightiescrime-yucky-subways-and-the-guardian-angels [https://perma.cc/L3NV-U2PZ].
136. Ronald Sullivan, Newark’s White Citizen Patrol, Opposed by Governor, Sees Itself as
Antidote
to
Fear
and
Riots,
N.Y.
TIMES,
June
24,
1968,
at
23,
https://timesmachine.nytimes.com/timesmachine/1968/06/24/77308975.html [https://perma.cc/SX8E677P].
137. See Cheryl Staats, Implicit Racial Bias, the Zimmerman Trial, the Verdict, Kirwan Institute
for the Study of Race and Ethnicity, OHIO STATE UNIV.: KIRWAN INST. FOR STUDY RACE &
ETHNICITY, (Aug. 23, 2013), https://kirwaninstitute.osu.edu/article/implicit-racial-bias-zimmermantrial-verdict [https://perma.cc/D2MD-GWRR].
138. Id.; Philip Abita Goff & L. Song Richardson, No Bigots Required: What the Science of
Racial Bias Reveals in the Wake of Trayvon Martin, in PURSUING TRAYVON MARTIN: HISTORICAL
CONTEXTS AND CONTEMPORARY MANIFESTATIONS OF RACIAL DYNAMICS, supra note 54, at 59, 60.
139. See generally RICH BENJAMIN, SEARCHING FOR WHITOPIA: AN IMPROBABLE JOURNEY TO
THE HEART OF WHITE AMERICA (2009).
140. Maria del Guadalupe Davidson, Imagined Communities: Whitopia and the Trayvon Martin
Tragedy, in PURSUING TRAYVON MARTIN: HISTORICAL CONTEXTS AND CONTEMPORARY
MANIFESTATIONS OF RACIAL DYNAMICS, supra note 54, at 34.
141. See generally JAMES W. LOEWEN, SUNDOWN TOWNS: A HIDDEN DIMENSION OF
AMERICAN RACISM (2005) (forbidding the presence of people of color after dark).
142. See generally LIGHT, supra note 24.

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armed vigilantes who roam neighborhoods with a license to kill someone they
reasonably believe might be doing something wrong,”143 which in Trayvon
Martin’s case was being a Black youth in a hoodie in a gated community. The
experience with such laws, not surprisingly, is that Whites killing Blacks are
far more successful in invoking the law’s protection than Blacks killing
Whites.144
And, of course, watch members are not state actors subject to constitutional
limitations. The primary constraints on them flow from criminal and tort law
(e.g., assault, false imprisonment).145 But these, as we learn from the Trayvon
Martin saga, are not self-enforcing.
Two years before the killing in Sanford, a Black fifteen-year-old was
assaulted on a Baltimore street by members of Shomrim, one of many ultraOrthodox Jewish patrol groups in the U.S. and elsewhere.146 This group was
equipped with police scanners and unmarked cars with flashing police lights.147
Finding the presence of a Black teen in the largely Jewish neighborhood
suspicious, Eliyahu Werdesheim and his brother Avi pursued him in their van,
jumped out and threw him to the ground, and beat him in the head with a handheld radio while yelling “[y]ou wanna [expletive] with us, you don’t belong
here, get outta here!”148 A third man got out of the van and pinned the teen with

143. David R. Dow, George Zimmerman Will Never Be Convicted of Murdering Trayvon
Martin, DAILY BEAST (May 22, 2012), https://www.thedailybeast.com/george-zimmerman-willnever-be-convicted-of-murdering-trayvon-martin [https://perma.cc/V45B-FMEZ].
144. Stephen C. Ferguson II & John H. McClendon III, Indignity and Death: Philosophical
Commentary on White Terror, Black Death, and the Trayvon Martin Tragedy, in PURSUING TRAYVON
MARTIN: HISTORICAL CONTEXTS AND CONTEMPORARY MANIFESTATIONS OF RACIAL DYNAMICS,
supra note 54, at 41.
145. Finegan, supra note 124, at 126–29.
146. Justin Fenton, Member of Jewish Patrol Group Accused of Striking Teen in City, BALT.
SUN (Dec. 1, 2010), https://www.baltimoresun.com/maryland/baltimore-city/bs-xpm-2010-12-02-bsmd-ci-shomrim-member-arrest-20101201-story.html [https://perma.cc/H399-YXB7].
147. The Borough Park Shomrin in Brooklyn receives government funding, used to purchase
bulletproof vests and command trucks. Johnson, supra note 27, at 474, 476. The Brooklyn South Safety
Patrol secured $300,000 from the City Council for a mobile command center. Alan Feuer, Brooklyn’s
Private Jewish Patrols Wield Power. Some Call Them Bullies, N.Y. TIMES (June 17, 2016),
https://www.nytimes.com/2016/06/18/nyregion/brooklyns-private-jewish-patrols-wield-power-somecall-them-bullies.html [https://perma.cc/4SDN-LVH4] (detailing the groups’ usurping of the role of
the police).
148. Fenton, supra note 146.

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his knee while they patted him down.149 The youth was later able to call police
and was taken to the hospital with lacerations to the head and a broken wrist.150
The brothers were identified, charged with second-degree assault and false
imprisonment, and tried in May 2012.151 No hate crime charges were brought.152
They elected a bench trial, fearing a jury after the publicity of the recent Martin
case.153 Eliyahu was convicted but given a suspended sentence; the conviction
was later overturned, allowing him to apply to law school without a criminal
record.154
A police spokesman praised the department’s partnership with such
neighborhood watch groups, but noted that their job is just to report crime and
leave interventions to police.155 “Since the Trayvon Martin case, people cannot
help but think about that case and draw comparisons,” a federal prosecutor
observed.156
In another instance, twenty-year-old Kouren-Rodney Bernard Thomas was
fatally shot in August 2016, by a neighborhood watch volunteer who told a 911
dispatcher that he was protecting his Raleigh, North Carolina home from
“hoodlums.”157 Chad Copley, who is White, fired his shotgun at the Black youth
from inside his garage.158 Copley had told the dispatcher he was on
neighborhood watch and was “locked and loaded.”159 He later reported he had
“fired my warning shot like I’m supposed to by law” at the “frigging black

149. Id.
150. Md. Neighborhood Watch Trial Set Against Fla. Fury, CBS BALT. (Apr. 22, 2012),
https://baltimore.cbslocal.com/2012/04/22/md-neighborhood-watch-trial-set-against-fla-fury/
[https://perma.cc/RWW9-VSRF].
151. Steve Kilar, Elder Werdesheim Brother Convicted in Assault of Teen, BALT. SUN (May 3,
2012),
https://www.baltimoresun.com/latest/bs-md-werdesheim-verdict-20120503-story.html
[https://perma.cc/YNH3-NPAW].
152. See id.
153. Id.
154. Ian Duncan, Convictions Stricken in Neighborhood Watch Beating Case, BALT. SUN (Dec.
17, 2013), https://www.baltimoresun.com/news/crime/bs-xpm-2013-12-17-bs-md-ci-werdesheimprobation-20131217-story.html [https://perma.cc/6NY9-K2FE].
155. CBS BALT., supra note 150.
156. Id.
157. Eliott C. McLaughlin & Devon M. Sayers, Man “On Neighborhood Watch” Kills 20-YearOld Outside Home, CNN (Aug. 6, 2016), https://www.cnn.com/2016/08/09/us/raleigh-north-carolinaman-shoots-african-american-outside-home-911-calls [https://perma.cc/LNS7-8L8V].
158. Id.
159. Id.

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males outside” who he claimed had firearms.160 The group was actually at a
party two doors down.161
Copley, described by some as “George Zimmerman 2.0,” was charged with
the death and convicted.162 In closing arguments at the trial, the prosecutor did
what Zimmerman’s prosecutors conspicuously failed to do—talked about “the
elephant in the room. Ask yourself if Kourey Thomas and these people outside
were a bunch of White males walking around wearing N.C. State hats, is he
laying dead bleeding in that yard?”163 The intermediate appeals court reversed
the conviction, concluding race was “irrelevant” to the case, but the North
Carolina Supreme Court reinstated it, ruling the defendant had failed to
establish a reasonable possibility the jury would have acquitted him absent the
prosecutor’s comments about race.164
Eight months after Trayvon Martin’s killing, the Sanford PD announced
plans to impose restrictions on its Neighborhood Watch programs, including a
ban on carrying firearms, requiring training, registration, and closer oversight
by the community relations unit of the police department.165 The gun restriction
was removed within a month.166 In 2013, the Retreat Lakes neighborhood
association settled a wrongful death suit filed by Trayvon’s family for an
undisclosed amount.167
What can be done to assert more control over neighborhood watches, and
avoid future Trayvon Martins? Typical suggestions are more training,
160. Id.
161. Id.
162. Josh Shaffer, New Trial Ordered for Raleigh Homeowner Who Was Convicted in Slaying
of
Partygoer,
NEWS
&
OBSERVER
(June
5,
2019),
https://www.newsobserver.com/news/local/article230113179.html [https://perma.cc/K688-LWTW].
163. Id.
164. Josh Shaffer, Murder Conviction Upheld in Racially Charged Homeowner Shooting, NEWS
& OBSERVER (Apr. 3, 2020), https://account.newsobserver.com/paywall/stop?resume=241744461
[https://perma.cc/J8RB-22D9].
165. Barbara Liston, Florida City Bans Guns for Neighborhood Watch Volunteers, REUTERS
(Oct. 30, 2013), www.reuters.com/article/2013/10/30/us-usa-guns-florida-idUSBRE99T13520131030
[https://perma.cc/QK7G-8UPG] (discussing attempts by the Sanford Police Department to change the
negative image of Neighborhood Watch by returning it to the simple observe-and-report format, in
light of the recent death of Trayvon Martin and the Zimmerman trial); Soumya Karlamangla,
Neighborhood Watch Rules to Change in Fla. City Where Trayvon Martin Was Killed, L.A. TIMES
(Nov. 2, 2013), https://www.latimes.com/archives/la-xpm-2013-nov-02-chi-neighborhood-watchrules-to-change-in-city-where-trayvon-martin-died-20131102-story.html
[https://perma.cc/ME7NSWT5].
166. Johnson, supra note 27, at 482.
167. Lizette Alvarez, Settlement Is Reached with Family in Slaying, N.Y. TIMES (Apr. 5, 2013),
https://www.nytimes.com/2013/04/06/us/trayvon-martins-parents-settle-wrongful-death-suit.html
[https://perma.cc/ZD5V-KKJ8].

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background checks, and more strictly restricting activities to observing and
reporting (as was tried in Sanford after Trayvon Martin’s killing).168 But the
problems go far deeper than that. We are witnessing, as in so many sectors of
American society, a slow privatization of law enforcement.169
It may take a Derek Chauvin verdict170 against a George Zimmerman to
begin to get the message out that there will be accountability for pretend cops,
when they take the law into their own hands. In any event, the very underlying
premise of such groups—that “crime is higher in ‘socially disorganized areas’
marked by weakened informal control due to an erosion of shared norms”171—
carries a chilling Orwellian tone.
IV. ORGANIZED VIGILANTISM IN THE U.S.
The neighborhood watch is part of the continuing story of vigilantism in the
United States.172 Lynch mobs were long a regular feature of life, primarily but
far from exclusively in the South, where they served ghoulishly as a form of
entertainment.173 The Fugitive Slave Law (enacted to enforce the constitutional

168. See Finegan, supra note 124, at 129–33 (proposing statutory reforms that would limit the
ability of neighborhood watch members to confront suspects, mandate training for those engaged in
law enforcement activities, and expand the exclusionary rule to evidence seized illegally by private
citizens engaged in law enforcement functions); Treutler, supra note 134.
169. Private security for US embassies has replaced the Marines, and private contractors like
Eric Prince’s infamous Blackwater mercenaries fight wars in Iraq and Afghanistan. See generally Brian
G. Lebon, Jr., Running Before Walking: The Underlying Costs of Privatized Violence & the Future of
the Privatized Industrial Complex, 15 LOY. J. PUB. INT. L. 63 (2013). For more examples, see Nicholas
Elliott, The Growth of Privatized Policing, FOUND. FOR ECON. EDUC. (Feb. 1, 1991),
https://fee.org/articles/the-growth-of-privatized-policing/
[https://perma.cc/DMD4-RZWK].
Outsourcing immunizes government actors who would otherwise be held responsible for the crimes
and misdeeds committed. Finegan, supra note 124, at 90. This is return to the state of affairs before
governments got into the criminal justice business during the Industrial Revolution. Id. at 94. Our civil
justice system also competes with private Alternative Dispute Resolution and mandatory arbitration
clauses. See Judith Resnik, Courts: In and Out of Sight, Site, and Cite, 53 VILL. L. REV. 771, 773–74
(2008). Outsourcing immunizes government actors who would otherwise be held responsible for the
crimes and misdeeds committed.
170. John Eligon, Derek Chauvin Verdict Brings a Rare Rebuke of Police Misconduct, N.Y.
TIMES (June 25, 2021), https://www.nytimes.com/2021/04/20/us/george-floyd-chauvin-verdict.html
[https://perma.cc/5UMD-8ZQZ]; Holly Bailey, Chauvin Sentenced to 20 Years for Violating Floyd’s
Federal
Civil
Rights,
WASH.
POST
(July
7,
2022),
https://www.washingtonpost.com/nation/2022/07/07/derek-chauvin-federal-sentencing/
[https://perma.cc/RP3L-XVBA].
171. Our History, NATIONAL NEIGHBORHOOD WATCH, https://www.nnw.org/our-history
[https://perma.cc/WM55-U4U6].
172. For a thorough treatment of the origins and history of American vigilantism, see BROWN,
supra note 24.
173. Id. at 21–22.

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obligation to return escaped slaves in Art. 4, Section 2, Clause 3) delegated state
authority to private bounty hunters and thus incentivized the capture of escaped
slaves by any means necessary.174 In turn, vigilance committees arose in the
North to protect runaway slaves from capture, exemplified by the Boston mob
that attacked the courthouse and then attempted unsuccessfully to block federal
authorities from taking Anthony Burns to the wharf and returning him to his
owner in Virginia.175
The most notorious of the vigilante groups, the Ku Klux Klan, terrorized
Blacks, Catholics, and Jews with violence in the years after the Civil War, and
continued into the Twentieth Century, particularly against civil rights activists
in the 1960s.176 After World War I, the Klan expanded from the South into the
North and West and became a national organization, even dominating the
politics in states like Indiana and Oregon.177
Perhaps most troublesome is the Klan’s sometimes close association with
law enforcement. In a number of infamous cases, including the murder of three
young civil rights workers in Philadelphia, Mississippi, in the summer of 1964,
local police and sheriffs joined the White Knights in the brutal crimes and
coverups.178
Klan activity persists to the present day, although much scaled down as a
result of government and private efforts to curtail it, including prosecutions of
cold cases like the Mississippi murders, and civil actions that bankrupted the
organization brought by civil rights lawyer Morris Dees.179 The Klan still
strikes fear when its members appear in their menacing White sheets.
Most recently, Texas has drawn on another American tradition—the posse
(familiar to viewers of cowboy westerns), mobilized by the sheriff to assist in
the capture of alleged lawbreakers or in defense of the town.180 The Texas antiabortion statute (S.B.8) is enforced not by state officials but by private bounty
174. History.com Editors, Fugitive Slave Acts, HISTORY (Feb. 11, 2020),
https://www.history.com/topics/black-history/fugitive-slave-acts [https://perma.cc/NM3F-7JLS].
175. Charles R. Lawrence III, The Fire This Time: Black Lives Matter, Abolitionist Pedagogy
and the Law, 65 J. LEGAL EDUC. 381, 388 (2015).
176. BROWN, supra note 24, at 272.
177. See id.
178. Michael German, Hidden in Plain Sight: Racism, White Supremacy, and Far-Right
Militancy in Law Enforcement, BRENNAN CTR. FOR JUST. (Aug. 27, 2020),
https://www.brennancenter.org/our-work/research-reports/hidden-plain-sight-racism-whitesupremacy-and-far-right-militancy-law [https://perma.cc/XD4T-XGYZ].
179. See id.; Bill Laytner, Civil Rights Lawyer who Bankrupted KKK Gets Hero’s Welcome in
Detroit,
DET.
FREE
PRESS
(Jan.
31,
2018),
https://www.freep.com/story/news/local/michigan/detroit/2018/01/28/civil-rights-hero-morris-deesvisits-detroit-speaks-nations-strength-immigrants/1073266001/ [https://perma.cc/DDU6-PTWY].
180. BROWN, supra note 24, at 112–18.

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hunters incentivized by a $10,000 reward for identifying abortion providers and
anyone who “aids or abets” in the now prohibited procedure.181 The clever
effort at avoiding a constitutional challenge to state action has apparently
worked.182 Other states are preparing similar legislation.183
Have we circled back to the Wild West of yesteryear?184
V. THE FREELANCERS
Three men took it upon themselves to make a “citizen’s arrest” of Ahmud
Arbury, whom they believed (without evidence) had committed burglaries in
the neighborhood.185 Armed with a .357 Magnum revolver and 12-gauge
shotgun, the McMichaels (father and son) and William “Roddie” Bryan pursued
the twenty-five-year-old Black jogger in two pickup trucks on a suburban
Georgia street on February 23, 2020.186 They “trapped [him] like a rat” (in the
181. Kimberly Atkins Stohr, Supreme Court Inaction Won’t Just Bring an End To Roe. It’ll Make
Bounty
Hunting
the
Norm,
BOS.
GLOBE
(Sept.
2,
2021),
https://www.bostonglobe.com/2021/09/02/opinion/supreme-court-inaction-wont-just-bring-an-endroe-itll-make-bounty-hunting-new-norm/[https://perma.cc/3W8C-PSX8]; TEX. HEALTH & SAFETY
CODE ANN. §§ 171.208(a)(1)–(a)(2), (b)(2) (West 2021).
182. Stohr, supra note 181.
183. Jon Michaels, We Are Becoming a Nation of Vigilantes, N.Y. TIMES (Sept. 4, 2021),
https://www.nytimes.com/2021/09/04/opinion/texas-abortion-law.html
[https://perma.cc/KA3VASJY]; Capitol Breach Cases, U.S. DEP’T OF JUST., https://www.justice.gov/usao-dc/capitol-breachcases [https://perma.cc/J2FB-SVUD] (last visited Mar. 27, 2023).
184. LIGHT, supra note 24, at ix–x.
185. Ashish Valentine, What is the Citizen’s Arrest Law at the Heart of the Trial over Ahmaud
Arbery’s Death?, NPR (Oct. 26, 2021), https://www.npr.org/2021/10/26/1048398618/what-is-thecitizens-arrest-law-in-the-trial-over-ahmaud-arberys-death [https://perma.cc/2GWQ-L75A].
186. Richard Fausset, Before Breonna Taylor and George Floyd, There Was Ahmaud Arbery,
N.Y TIMES
(Feb.
28,
2021),
https://www.nytimes.com/2021/02/28/us/ahmaud-arberyanniversary.html [hereinafter Fausset, Before Briana Taylor] [https://perma.cc/UQ7Q-WJQT];
Richard Fausset, What We Know About the Shooting Death of Ahmaud Arbery, N.Y. TIMES (Apr. 29,
2021), https://www.nytimes.com/article/ahmaud-arbery-shooting-georgia.html [hereinafter Fausset,
What We Know About the Shooting Death] [https://perma.cc/88HL-AYXB]. For the concept and
history of such arrests, see generally Chad Flanders, Raina Brooks, Jack Compton & Lyz Riley, The
Puzzling Persistence of Citizen’s Arrest Laws and the Need to Revisit Them, 64 HOW. L. J. 161 (2020);
Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest, 25 CORNELL J. L. &
PUB. POL’Y 557 (2016). Citizen’s arrests were recognized as far back as the English Statute of
Winchester in 1285, outlining both the authority and indeed responsibility of private citizens to
apprehend perpetrators. Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest,
25 CORNELL J. L. & PUB. POL’Y 557, 562 (2016). American common law often required a showing of
actual guilt to justify the arrest (otherwise the arrestor was strictly liable), and limited arrests to felonies
committed in the presence of the citizen. Id. at 565–67. The volunteer watch group the Guardian Angels
have famously engaged in citizen arrests, Id. at 580. For a survey of citizen arrest laws around the
country, see Kimberly Kessler Ferzan, Response, Taking Aim at Pointing Guns? Start With Citizen’s

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words of one), and shot him to death.187 At least one of the White attackers
yelled racist slurs during the pursuit.188
The three represent what we might call unaffiliated vigilantes.
We know what happened only because Bryan recorded the events on his
cell phone.189 The trio told a very different story at the time, shifting the blame
to Arbery, who they claimed attacked them.190 Their version was initially
accepted by the authorities.191 The senior McMichael was a former police
officer and retired investigator in the district attorney’s office.192 Only when the
video was released months later were the three finally charged.193 Public
pressure brought a nine-count indictment for murder, and later federal hate
crime charges.194 As with George Zimmerman, the killers claimed the victim
attacked them and they acted in self-defense.195
Georgia’s citizen’s arrest law dates (not coincidentally) to the year of the
Emancipation Proclamation.196 The original prosecutor on the case concluded
that the men acted within their rights to “arrest” the unarmed man, with force,
Arrest, Not Stand Your Ground: A Reply to Joseph Blocher, Samuel W. Buell, Jacob D. Charles, and
Darrell A.H. Miller, Pointing Guns, 99 TEX. L. REV. 1173 (2021), 100 TEX. L. REV. ONLINE 1, 7–10
(2021).
187. Emily Crane, Ahmaud Arbery was “Trapped Like a Rat” Before Being Shot Dead: Police
Testimony, N.Y. POST (Nov. 10, 2021), https://nypost.com/2021/11/10/ahmaud-arbery-trapped-like-arat-before-being-killed-trial/ [https://perma.cc/7GEC-QWFJ].
188. Eliott C. McLaughlin, Ahmaud Arbery was Hit with a Truck Before He Died, and His Killer
Allegedly Used a Racial Slur, Investigator Testifies, CNN (June 4, 2020),
https://www.cnn.com/2020/06/04/us/mcmichaels-hearing-ahmaud-arbery/index.html
[https://perma.cc/B6L3-XNHD].
189. Fausset, What We Know About the Shooting Death, supra note 186.
190. Id.
191. Dakin Andone, A Timeline of the Killing of Ahmaud Arbery and the Case Against 3 Men
Accused of His Murder, CNN (Nov. 12, 2021), https://www.cnn.com/2021/10/18/us/ahmaud-arberycase-timeline/index.html [https://perma.cc/YEE4-PTBR].
192. Id.; Fausset, Before Briana Taylor, supra note 186.
193. Erin Donaghue, 3 Men Indicted on Murder Charges in Killing of Ahmaud Arbery, CBS
NEWS (June 24, 2020), https://www.cbsnews.com/news/ahmaud-arbrery-killing-indictments-travisgreg-mcmichael-william-bryan/ [https://perma.cc/EX8Z-PKTW]; Andone, supra note 191.
194. Donaghue, supra note 193; Andone, supra note 191.
195. Obvious similarities to Trayvon Martin’s killing have been noted in the press. “Both the 17year-old Martin and the 25-year-old Arbery were accosted by self-appointed White vigilantes who shot
them at point-blank range after a scuffle. In both cases, prosecutors initially declined to pursue charges,
which were filed only after weeks of sustained pressure from the Black communities in both Deep
South states.” Killings of Arbery and Martin Tragically Similar, MINN. SPOKESMAN-RECORDER (June
4,
2020),
https://spokesman-recorder.com/2020/06/04/killings-of-arbery-and-martin-tragicallysimilar/ [https://perma.cc/SD2A-ZN3S].
196. Fausset, Before Briana Taylor, supra note 186. The law was the work of a slaveholding
attorney. See Flanders, Brooks, Compton & Riley, supra note 186, at 182.

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even though one admitted to police “he didn’t know if Mr. Arbery had stolen
anything or not, but he had a gut feeling” he had committed prior break-ins.197
That prosecutor has been indicted for conflict of interest, as McMichael had
previously worked in her office.198
A nearly all-White jury ultimately convicted the men after a trial that
minimized the role of race in the killing, with the prosecutor mentioning it only
once—during her closing argument.199 The three were sentenced to life in
prison.200 Subsequently they were convicted of federal hate-crimes, and upon
sentencing, asked the judge to send them to federal rather than state prison
because (ironically) they feared “vigilante justice” in state custody.201 A § 1983
civil rights action was also filed.202
Donald Trump in effect put the Presidential stamp of approval on such
vigilante attacks. A St. Louis couple in June 2020, brandished their AR-15
assault rifle and pistol threateningly at Black Lives Matter protesters marching
past their home in an upscale gated community.203 A video of the gun-toting
couple went viral.204 Although charged with felony counts of unlawful use of a
weapon, they were issued summonses rather than arrested, and received public
support from Trump and the Missouri Governor, who indicated he would
pardon them if convicted.205 The Governor called for the resignation of the

197. Ahmaud Arbery Killing: What we Learned from Latest Court Hearing, WRDW (June 5,
2020), https://www.wrdw.com/content/news/Ahmaud-Arbery-killing-What-we-learned-from-latestcourt-hearing-57104001.html [https://perma.cc/5LST-AJ2Z]; Andone, supra note 191.
198. Alissa Marque Heyardi & Ronald Wright, The Ahmaud Arbery Case: Lessons to Prevent
Prosecutor Conflicts, BLOOMBERG L. (Sept. 22, 2021), https://news.bloomberglaw.com/us-lawweek/the-ahmaud-arbery-case-lessons-to-prevent-prosecutor-conflicts
[https://perma.cc/YM79KNKD].
199. Richard Fausset, How a Prosecutor Addressed a Mostly White Jury and Won a Conviction
in the Arbery Case, N.Y. TIMES (Nov. 29, 2021), https://www.nytimes.com/2021/11/25/us/prosecutorwhite-jury-conviction-ahmaud-arbery.html [https://perma.cc/3WGJ-9PYK].
200. Id.
201. Richard Fausset, Two in Arbery Case Sentenced Again to Life in Prison, Third Man Gets
35 Years, N.Y. TIMES (Aug. 8, 2022), https://www.nytimes.com/2022/08/08/us/arbery-killersentencing.html [https://perma.cc/7AJV-X38W].
202. Complaint at 30, Cooper v. McMichael, No. 2:21-CV-20 (S.D. Ga Feb. 23, 2021).
203. Tom Jackman, St. Louis Couple Who Aimed Guns at Protestors Charged with Felony
Weapons
Count,
WASH.
POST
(July
20,
2020),
https://www.washingtonpost.com/nation/2020/07/20/st-louis-couple-who-aimed-guns-protesterscharged-with-felony-weapons-count/ [https://perma.cc/Z8KJ-ZF3J].
204. Id.
205. Id.; St. Louis Couple Who Waved Guns at Protest Have Spoken to Trump About their Case,
Lawyer Says, ASSOCIATED PRESS (Oct. 14, 2020), https://www.nbcnews.com/news/us-news/st-louiscouple-who-waved-guns-protest-have-spoken-trump-n1243391 [https://perma.cc/HRJ5-UAV9].

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African-American prosecutor who brought the charges, and she was subjected
to racist death threats from across the country.206
The couple emerged as celebrities in conservative circles, and made a video
appearance at the Republican National Convention in August.207 The prosecutor
was removed from the case on defense charges of bias,208 and the couple were
permitted to plead to misdemeanor charges, with no jail time and a $2,750
fine.209 In August 2021, the governor pardoned them, as promised, and they
stated publicly that they would have done the same thing again.210
The July 5, 2021 issue of the New Yorker featured “Kyle Rittenhouse,
American Vigilante,” chronicling the story of a seventeen-year-old White man
who carried an illegal assault weapon (he was under-age) across state lines to
confront antiracist protestors in Kenosha, Wisconsin.211 The protests followed
the police shooting of Jacob Blake, a Black man who scuffled with police
officers when they tried to arrest him on a domestic violence warrant as he tried
to enter his car, where his young children sat in the back.212
A former city alderman had posted on social media a call for “Armed
Citizens to Protect Our Lives and Property” from the “evil thugs” who were
demonstrating.213 Other posts urged that “law-abiding citizens have no choice
but to protect their own communities as their forefathers did at Lexington and
Concord in 1775.”214 Many showed up in military fatigues and carried assault

206. Jackman, supra note 203.
207. Christine Byers & Dori Olmos, St. Louis Judge Denies McCloskey’s Motion to Send Case
Back to Grand Jury, KSDK (Apr. 30, 2021), https://www.ksdk.com/article/news/crime/mark-patriciamccloskey-trial-date-set/63-9099828c-ad13-4824-8fba-ea945ffff7d2
[https://perma.cc/A7YWFQ3F].
208. Christine Byers, Dismissals and Appeal Put Prosecution of McCloskey Case on Hold, For
Now, KSDK (Jan. 4, 2021), https://www.ksdk.com/article/news/local/dismissals-and-appeal-putprosecution-of-mccloskey-case-at-standstill/63-2326acae-8e33-4fe6-b2bd-40ed7f76ea6d
[https://perma.cc/4AFG-4BFJ].
209. Azi Paybarah, St. Louis Couple Who Aimed Guns at Protesters Plead Guilty to
Misdemeanors, N.Y. TIMES (June 17, 2021), https://www.nytimes.com/2021/06/17/us/mark-patriciamccloskey-st-louis-couple-protesters.html [https://perma.cc/VRF3-9AAD].
210. Jim Salter, Missouri Governor Pardons Gun-Waiving St. Louis Lawyer Couple, AP NEWS
(Aug.
3,
2021),
https://apnews.com/article/michael-brown-st-louis20062ccc6593bd91757ad1ea4a190db5 [https://perma.cc/BGS4-6XLQ].
211. Paige Williams, Kyle Rittenhouse, American Vigilante, NEW YORKER (July 5, 2021),
https://www.newyorker.com/magazine/2021/07/05/kyle-rittenhouse-american-vigilante
[https://perma.cc/CU2W-42FZ].
212. See Jacob Blake: What We Know About Wisconsin Police Shooting, BBC NEWS (Aug. 31,
2020), https://www.bbc.com/news/world-us-canada-53909766 [https://perma.cc/7BGW-AXEG].
213. Williams, supra note 211.
214. Id.

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weapons, some were in various militias and considered themselves
“deputized.”215
Rittenhouse shot three in the protest crowd, killing two (one of whom had
just wandered into the chaos), yet was allowed to leave the scene carrying his
assault rifle, walking right by police officers who told him to “go.”216 “The
police,” the New Yorker asserted, “almost certainly wouldn’t have let a Black
man pass.”217
The story went viral, and Rittenhouse was glorified as a hero among hardright groups.218 But to many others he became emblematic of the wide double
standard separating violent White vigilantes from peaceful antiracist protesters
routinely rounded up by aggressive police tactics. Arrests in the George Floyd
demonstrations exceeded 10,000.219
Rittenhouse was finally charged with intentional homicide and illegal
possession of the weapon.220 He claimed self-defense, that he was acting as a
member of a “well-regulated militia” protected by the Second Amendment.221
Conservatives rallied to his defense, securing him private counsel and putting
up his $2 million cash bail.222 His trial in November 2021 ended in acquittal on
all charges, even on the unlawful possession of a firearm charge, which the
judge inexplicably dismissed himself.223
The judge appeared quite clearly to side with the defense, including
constantly berating the prosecution team, applauding a key defense witness, and
even forbidding the prosecution from referring to the people shot by
Rittenhouse as “victims.”224 The jury of seven women and five men accepted
215. Id.
216. Id.
217. Id.
218. Ryan Bort, How the Right Found a Hero in Kyle Rittenhouse, ROLLING STONE (Nov. 19,
2021),
https://www.rollingstone.com/culture/culture-news/kyle-rittenhouse-right-wing-violence1257856/ [https://perma.cc/5X2Y-2NY2].
219. Anita Snow, AP Tally: Arrests At Widespread US Protests Hit 10,000, AP NEWS (June 4,
2020),
https://apnews.com/article/american-protests-us-news-arrests-minnesota-burglarybb2404f9b13c8b53b94c73f818f6a0b7 [https://perma.cc/BF3Z-HBNY].
220. Williams, supra note 211.
221. Anderson, supra note 96, at 159.
222. Williams, supra note 211.
223. Julie Bosman, Kyle Rittenhouse Was Found Not Guilty of Intentional Homicide and Four
Other Charges, N.Y. TIMES (Nov. 19, 2021), https://www.nytimes.com/live/2021/11/19/us/kylerittenhouse-trial#kyle-rittenhouse-verdict [https://perma.cc/2UTA-2UQ5].
224. Nicholas Reimann, Judge in Rittenhouse Case Slammed With Accusations of Bias—Here’s
Why, FORBES (Nov. 11, 2021), https://www.forbes.com/sites/nicholasreimann/2021/11/11/judge-inrittenhouse-case-slammed-with-accusations-of-bias-heres-why/
[https://perma.cc/FK97-W8RX];

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Rittenhouse’s “pushing the limits” self-defense—that he feared someone in the
group he menaced would take his weapon and use it on him—and acquitted
him.225
Wisconsin’s definition of self-defense permits an actor who provokes the
violence to nonetheless seek acquittal on the grounds he has “exhausted every
other reasonable means to escape from or otherwise avoid death or great bodily
harm.”226 Rittenhouse’s attorneys had secured a police use-of-force expert who
viewed the videos of the events and testified at the trial that Rittenhouse was in
fact defending himself from attacks by the protestors.227 As the New Yorker
piece concludes, “If a jury appears to sanction vigilantism [(as this jury did)],
it seems likely that more altercations between protesters and counter-protesters
will turn deadly.”228
Indeed, armed vigilante groups saw vindication in the Rittenhouse verdict.
As a Times commentator observed, it “represented the lethal culmination of this
idea: that the United States had reached a point of crisis in which citizens were
required to take up arms to defend it from their fellow citizens. It was an idea
with deep roots in American history, and also one deeply entangled with the
country’s legacy of racial conflict.”229
But what happens when Black persons are the ones who take up arms?

Ewan Palmer, Anger Over Kyle Rittenhouse Trial Judge Grows After Week of Controversies,
NEWSWEEK (Nov. 12, 2021), https://www.newsweek.com/kyle-rittenhouse-trial-judge-bruceschroeder-controversies-1648569 [https://perma.cc/5KCC-DQ99]; Becky Sullivan, Why the
Rittenhouse ‘Not Guilty’ Verdict is Not a Surprise to Legal Experts, NPR (Nov. 19, 2021),
https://www.npr.org/2021/11/19/1057422329/why-legal-experts-were-not-surprised-by-therittenhouse-jurys-decision-to-acquit [https://perma.cc/6MRT-MUKC]; Nicholas Bogel-Burroughs, In
Scrutinized Kyle Rittenhouse Trial, It’s the Judge Commanding Attention, N.Y. TIMES (Nov. 15, 2021),
https://www.nytimes.com/2021/11/11/us/kyle-rittenhouse-judge-bruce-schroeder.html
[https://perma.cc/2FXR-DU22].
225. Bosman, supra note 223.
226. WIS. STAT. § 939.48(2)(a) (2021–2022); see Shaila Dewan & Mitch Smith, When It Comes
to Self-Defense, the Prosecution Has a Heavier Burden, N. Y. TIMES (Nov. 19, 2021),
https://www.nytimes.com/2021/11/19/us/rittenhouse-acquittal-self-defense.html
[https://perma.cc/7YNL-GUKX].
227. Michael Tarm & Todd Richmond, Force Expert: Rittenhouse Decisions to Shoot Were
Reasonable, ASSOCIATED PRESS (Oct. 5, 2021), https://www.usnews.com/news/us/articles/2021-1004/rittenhouse-due-in-court-for-likely-final-motions-hearing [https://perma.cc/72Z8-MXK3].
228. Williams, supra note 211.
229. Charles Homans, To Paramilitary Groups, Rittenhouse Verdict Means Vindication, N.Y
TIMES
(Nov.
21,
2021),
https://www.nytimes.com/2021/11/21/us/rittenhouse-militiaparamilitary.html [https://perma.cc/JYS8-7XMN].

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VI. WHAT HAPPENS WHEN PEOPLE OF COLOR DEFEND THEMSELVES?
Malcolm X famously asserted the right of African-Americans to defend
themselves “by all means necessary,” given the historical failure and refusal of
the White community to protect them or punish the violence perpetrated against
them.230 “The history of unpunished violence against our people,” he argued,
“clearly indicates that we must be prepared to defend ourselves or we will
continue to be a defenseless people at the mercy of a ruthless and violent racist
mob.”231 Those efforts, however, have often ended in tragedy.232
Ossian Sweet was an African-American doctor who moved into a
segregated neighborhood of Detroit in 1925.233 When an armed White mob
attacked the house, Sweet and his friends defended it and his family, firing
gunshots that wounded one and killed another of the attackers.234 Sweet and his
friends were charged and tried for murder.235 Only the support of the NAACP
and the defense mounted by legendary lawyer Clarence Darrow secured their
ultimate acquittal.236
Similarly, when an angry mob of hundreds, deputized and armed by city
officials, rampaged, burnt, and destroyed the thriving neighborhood of
Greenwood (dubbed “Black Wall Street”) in Tulsa, Oklahoma in the summer
of 1921, it was the surviving Black defenders and their neighbors who were
taken into custody and interned in the thousands.237 Estimates of the dead ran
to 300, and at least 800 injured.238 The only White person prosecuted for his

230. Malcolm X, Speech at the Founding Rally of the Organization of Afro-American Unity
(June 28, 1964), https://www.blackpast.org/african-american-history/speeches-african-americanhistory/1964-malcolm-x-s-speech-founding-rally-organization-afro-american-unity/
[https://perma.cc/9SRH-JPRU].
231. MALCOLM X SPEAKS: SELECTED SPEECHES AND STATEMENTS 112–13 (George Breitman
ed., 1989).
232. For a history of the dramatically different treatment of armed black men and armed White
men defending themselves, see generally ANDERSON, supra note 96 and LIGHT, supra note 24.
233. Victoria Wolcott, Defending the Home: Ossian Sweet and the Struggle Against Segregation
in
1920s
Detroit,
OAH
MAG.
HIST.,
Summer
1993,
at
23,
https://www.jstor.org/stable/pdf/25162908.pdf?refreqid=excelsior%3A318db9267b588e6290d2b99e
3d48388e&absegments=&origin= [https://perma.cc/LNG2-CRFK].
234. Id.
235. Id.
236. Id.
237. History.com Editors, Tulsa Race Massacre, HISTORY (May 24, 2022),
https://www.history.com/topics/roaring-twenties/tulsa-race-massacre
[https://perma.cc/CG72HMXD].
238. June 1, 1921: The Attack On Black Wall Street, BLACK THEN (July 28, 2021),
https://blackthen.com/june-1-1921-the-attack-on-black-wall-street-concludes-with-more-shootingsbea/ [https://perma.cc/Y8JT-V42E].

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part in the violence was the chief of police, who was convicted of negligence
in failing to stop the riot, together with unrelated corruption charges.239
Nearly fifty years later, members of the Black Panther Party for SelfDefense would also discover that the latter term had a different meaning for
Black persons. The Party followed the model of the Deacons for Defense and
Justice in the Old South, heavily armed Black men (mostly war veterans)
organized to protect civil rights workers and activists against Klan and police
violence.240 The Deacons had some notable successes, including providing
security for key campaigns like James Meredith’s effort to integrate the
University of Mississippi and for CORE leader James Farmer.241 But the group
attracted the attention of J. Edgar Hoover’s FBI and were subjected to the
repressive abuses of the infamous COINTELPRO program.242
The Panthers’ high-profile community patrols of Oakland, California were
“aimed at inspiring black and brown communities to fight back [against police
brutality] and served as a warning to law enforcement of the party’s willingness
to defend its communities with violence, if necessary.”243 Openly displaying
guns and ammunition belts (permitted at the time under California law, where
the party was founded), they engaged in dramatic confrontations with police at
public events. In May 1967, the Panthers entered the California Capitol
Building and proceeded to the assembly floor during the debate on a bill
directed at them that would ban carrying loaded weapons in public.244
The Mulford Act became law, with the enthusiastic support of the usually
militant anti-gun control National Rifle Association and the signature of the
new Governor, Ronald Reagan.245 The first federal gun control law followed in
239. OKLA. COMM’N TO STUDY THE TULSA RACE RIOT OF 1921, TULSA RACE RIOT: A REPORT
OKLAHOMA COMMISSION TO STUDY THE TULSA RACE RIOT OF 1921 (2001),
https://www.okhistory.org/research/forms/freport.pdf [https://perma.cc/EF3B-ZRJH]; BLACK THEN,
supra note 238.
240. Javonte Anderson, Are Black Militias a New Phenomenon? The History of Black Armed
Self
Defense,
USA
TODAY,
(Nov.
9,
2021),
http://libus.csd.mu.edu/wamvalidate?url=https://www.proquest.com/newspapers/are-black-militiasnew-phenomenon-history-armed/docview/2595023410/se2?accountid=100[https://perma.cc/7A62N9MQ].
241. LANCE HILL, THE DEACONS FOR DEFENSE: ARMED RESISTANCE AND THE CIVIL RIGHTS
MOVEMENT 222, 245–46 (2004).
242. See id. at 112–13. A television movie starring Forest Whitaker portrays the violent events
of 1965 in Louisiana. DEACONS FOR DEFENSE (2003).
243. EDDIE S. GLAUDE, JR., BEGIN AGAIN: JAMES BALDWIN’S AMERICA AND ITS URGENT
LESSONS FOR OUR OWN 86 (2020).
244. Thaddeus Morgan, The NRA Supported Gun Control When the Black Panthers Had the
Weapons, HISTORY (Aug. 30, 2018), https://www.history.com/news/black-panthers-gun-control-nrasupport-mulford-act [https://perma.cc/Y7YL-54XF].
245. ANDERSON, supra note 96, at 134; see also LIGHT, supra note 24, at 122–24.
BY THE

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1968, prompted by the urban uprisings in Los Angeles, Detroit, and Newark,
which “evoked the worst fears about Negroes with Guns.”246
As one historian put it, “[a]rmed black men asserting their right to defend
the African-American community against the police conjured up a horrifying
specter,”247 and the media (local and national) portrayed them as such.
“Oakland’s Black Panthers Wear Guns, Talk Revolution” headlined the San
Francisco Examiner.248 Black self-defense did not play any better north of the
Mason-Dixon line than south, and the Panthers played an unwitting role in the
successful “law and order” presidential campaign of Richard Nixon in 1968.249
Malcom X aptly quipped that if “you’re South of the Canadian border, you’re
in the South.”250
The Black Panther Party was targeted by Hoover’s FBI for “neutralization,”
meaning planting false reports in the media, constant harassment, wrongful
arrests and prosecutions, and ultimately the assassination of Chicago leaders
Fred Hampton and Mark Clark while they slept in their Chicago apartment.251
Historian Carol Anderson has even traced the much-revered centerpiece of
American self-defense, the Second Amendment, to fear of armed people of
color taking up arms.252
If Trayvon Martin did in fact try to defend himself against his ominous
stalker on that February night, as Zimmerman contended, the jurors nonetheless
refused to acknowledge that as Trayvon’s right of self-defense, as Trayvon’s
right to stand his ground.253 In fact, the defense team made much of the minor
injuries their client had suffered—head abrasions and possible broken nose (for

246. ANDERSON, supra note 96, at 138.
247. Id. at 132.
248. Id. at 133.
249. Id. at 131–32.
250. Malcolm
X,
The
Ballot
or
the
Bullet
(Apr.
2,
1964),
http://www.edchange.org/multicultural/speeches/malcolm_x_ballot.html
[https://perma.cc/8TFYEB55].
251. See generally JEFFREY HAAS, THE ASSASSINATION OF FRED HAMPTON: HOW THE FBI
AND THE CHICAGO POLICE MURDERED A BLACK PANTHER (2011).
252. See ANDERSON, supra note 96 (documenting the racial divide embedded in the roots,
history, and application of the right to bear arms). For more on the checkered history of black selfdefense in the U.S., see LIGHT, supra note 24, at 8–17, 50.
253. “Where,” asks Professor Robin D .G. Kelley, “was the NRA on Trayvon Martin’s right to
stand his ground? What happened to their principled position? Let’s be clear: the Trayvon Martins of
the world never had that right because the ‘ground’ was never considered theirs to stand on.” Robin
D.G. Kelley, The U.S. v. Trayvon Martin: How the System Worked, HUFFINGTON POST (July 15, 2013),
https://newsroom.ucla.edu/stories/the-u-s-v-trayvon-martin-how-the-247451 [https://perma.cc/Y69442UZ].

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which Zimmerman declined to go to the hospital or seek medical attention),
using them to portray Martin as the aggressor, and Zimmerman the victim.254
VII. THE TRAYVON MARTIN CASE IN RACIAL REVERSE—GEORGIA V. JOHN
MCNEIL
A telling comparison of self-defense narratives can be found in the case of
a Black businessman in Georgia who shot a White man charging at him and his
son on their own property after threatening them with a knife. Unlike George
Zimmerman, John McNeil was convicted and jailed for life.255
In December 2005, McNeil’s son got into an argument with Brian Epp, a
contractor his father had hired but whom the son did not recognize.256 When
asked to leave the premises, Epp pulled a knife and threatened him, at which
point he telephoned his father, who called 911 and raced home.257 “When you
get a call from your kids that somebody’s got a knife pulled on them,
threatening them, the first thing you want to do is to get home and protect your
kid,” McNeil testified.258
Upon McNeil’s arrival home, Epp reached into his truck, grabbed
something and put it in his pocket, and rushed McNeil, who by now had gotten
a revolver from his car and warned Epp to back off.259 When he kept charging,
McNeil retreated and fired a warning shot to the ground, but Epp kept
advancing, and the next shot killed him.260 The knife was found in Epp’s
pocket.261
Despite the testimony of McNeil’s White neighbors, who corroborated that
McNeil was in danger and attempting to back off, he was convicted of murder
and sentenced to life imprisonment.262
The Georgia Supreme Court affirmed the conviction, ruling that the State
had met its burden of disproving McNeil’s self-defense beyond a reasonable

254. See Medical Examiner Calls George Zimmerman’s Injuries ‘Minor,’ CLICK ORLANDO
(July 3, 2013), https://www.clickorlando.com/news/2013/07/03/medical-examiner-calls-georgezimmermans-injuries-minor/ [https://perma.cc/UZP6-X7T9].
255. McNeil v. State, 669 S.E.2d 111, 112–13 (Ga. 2008).
256. Id. at 113.
257. Id.
258. Rhonda Cook, Was it Self-Defense or Murder?, ATLANTA J.-CONST. (Oct. 27, 2012),
https://www.ajc.com/news/local/was-self-defense-murder/Se5HXOYibSoLQBBZynZdVJ/
[https://perma.cc/KGA3-57YQ].
259. McNeil, 669 S.E.2d at 115.
260. Id.
261. Id.
262. Id. at 117.

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doubt.263 The dissenting justice, noting there was testimony at trial by other
homeowners who had also had violent encounters with Epp, concluded:
[T]he evidence was overwhelming in showing that a
reasonable person in McNeil’s shoes would have believed that
he was subject to an imminent physical attack by an aggressor
possessing a knife and that it was necessary to use deadly force
to protect himself from serious bodily injury or a forcible
felony. Under the facts of this case, it would be unreasonable
to require McNeil to wait until Epp succeeded in attacking him,
thereby potentially disarming him, getting control of the gun,
or stabbing him before he could legally employ deadly force to
defend himself.
This is not what Georgia law requires. To the contrary, “[i]t
is not essential to justify a homicide that there should be an
actual assault made upon th[e] defendant. Threats
accompanied by menaces, though the menaces do not amount
to an actual assault, may in some instances be sufficient to
arouse a reasonable belief that one’s life is in imminent danger
or that one is in imminent danger of great bodily harm or that
a forcible felony is about to be committed upon one’s
person.”264
Neither the trial nor appellate court recognized Georgia’s recently adopted
Stand Your Ground law, providing a person “has no duty to retreat and has the
right to stand his or her ground and use force . . . including deadly force [where
he reasonably believes his life, or a third person’s, is in imminent danger].”265
The law grants immunity from prosecution to anyone acting under its
provisions, which was the reason given under the Florida law for sending
George Zimmerman home after Trayvon’s killing and not arresting him for
nearly two months.266 The McNeil jury was not so advised about the new law.267
The verdict was ultimately overturned in 2012 because of errors in the
instructions given to the jury, and McNeil was released.268

263. Id. at 113.
264. Id. at 117–18 (Sears, C.J., dissenting) (quoting Bennett v. State, 453 S.E.2d 458, 460 (Ga.
1995).
265. GA. GA. CODE ANN. §§ 16-3-23.1, 16-3-24(a) (West 2006).
266. See Ta-Nehisi Coates, How Stand Your Ground Relates to George Zimmerman, ATLANTIC
(July 16, 2013), https://www.theatlantic.com/national/archive/2013/07/how-stand-your-groundrelates-to-george-zimmerman/277829/ [https://perma.cc/N8R2-82PR].
267. Cook, supra note 258.
268. Id.; see also Rhonda Cook, John McNeil to Leave Jail Tuesday, ATLANTA J.-CONST. (Feb.
12,
2013),
https://www.ajc.com/news/local/john-mcneil-leave-jailtuesday/oK7Nh6RbXxRNwCJXR16YoJ/ [https://perma.cc/F6K2-62NQ].

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Granting the complexities of comparing McNeil’s case with Zimmerman’s,
the contours of each quite clearly point to the influence of race on the opposite
results. If anything, McNeil appeared in considerably more danger from an
adult armed with a knife and with a history of belligerent threats to his
neighbors than Zimmerman, confronting an unarmed teenager with no such
history.
An even more startling comparison is the case of Marissa Alexander in
Florida in 2010.269 Prosecuted by the same state attorney who only reluctantly
initiated the charges against Zimmerman, Alexander was a domestic violence
victim who was threatened, together with her children, by her enraged abusive
husband in her home.270 She grabbed a gun and fired a warning shot into the
wall.271 No one was injured.272 Alexander was nonetheless charged with
aggravated assault with a deadly weapon, convicted, and sentenced to the
maximum term of twenty years.273 The judge ruled that the Stand Your Ground
law did not protect her because Alexander “didn’t appear afraid,” but acted out
of anger.274 The jury deliberated for only twelve minutes.275
VIII. REFORMING OUR LAW OF SELF-DEFENSE
What acquitted George Zimmerman of the killing of Trayvon Martin was
obviously a confluence of factors, among them the deeply flawed conduct of
the prosecution, as noted above. But race clearly played its insidious part. Had
the racial roles been reversed, the White police detectives would not in all
likelihood have allowed a Black shooter to go home after a soft-pedaling
interview, with no further investigation or even a visit to the crime scene. Nor
would police and prosecutors have so readily and uncritically accepted
Zimmerman’s implausible version of events, and allow him to remain free for
two months, before finally bringing charges. Nor in all probability would a
Black shooter’s defiance of the 911 dispatcher’s instruction “we don’t need you

269. See LIGHT, supra note 24, at 177.
270. Julia Dahl, Fla. Woman Marissa Alexander Gets 20 years for "Warningshot": Did She
Stand Her Ground?, CBS NEWS (May 16, 2012), https://www.cbsnews.com/news/fla-woman-marissaalexander-gets-20-years-for-warning-shot-did-she-stand-her-ground/
[https://perma.cc/DQ5U4KM2].
271. Id.
272. Id.
273. Alexander v. State, 121 So. 3d 1185 (Fla. Dist. Ct. App. 2013).
274. Id. at 1190 n.5.
275. ANDERSON, supra note 96, at 146–48; LIGHT, supra note 24, at 178–81. After intense public
pressure, a new trial was ordered and she was released pursuant to a plea deal to house arrest, having
served three years. LIGHT, supra note 24, at 177.

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to follow him” be so ignored. Nor would the prosecutors and judge likely have
so scrupulously sanitized the racial dimension of the narrative.
Would a White jury likely have acquitted a twenty-eight-year-old Black
man of killing an unarmed White high school student who had done nothing
more than walked “suspiciously” in the rain? The verdict appeared to be a
triumph of American tribalism. The Black Lives Matter movement arose in
reaction to the devaluing of Trayvon Martin’s life, and the other victims of such
violence, be it by police or vigilante.
A diverse jury may have brought more skepticism to Zimmerman’s selfdefense narrative, especially since they did not hear it from him—as noted
above, he avoided (with the help of the prosecution) having to present his story
at trial under oath and subject to cross-examination. Jurors routinely penalize
defendants who do not testify, inferring guilt in what is dubbed “the silence
penalty.”276 Zimmerman somehow avoided this fate.
More broadly, cases like Trayvon Martin’s raise the pressing question of
whether our current standards for self-defense need to be significantly revised.
Jurors now must assess whether the defendant actually and reasonably believed
himself or herself to be in imminent danger. The accused does not have to be
correct in this view, his belief need only be “reasonable” in the eyes of the
factfinder.277 It has been noted, however, that the “fictional ‘average reasonable
person,’ who is the touchstone of all judgments of reasonableness, is thus born
in the courtroom carrying all the prejudices of the twelve [jurors] who gave that
person life.”278 If fear of Black males is as prevalent in our society as studies
indicate, assessments of the reasonableness of lethal force against persons of
color are at real risk of distortion.279
In short, the requirement for “reasonable” belief in imminent danger may
not act as the objective check it is designed to be if the prosecutor, judge, and
jurors share the same biases (implicit or conscious) as the accused.280
The acquittal of “subway shooter” Bernard Goetz by a nearly all White jury
for seriously wounding four unarmed Black youths in December 1984 is a case
in point.281 Approached by the teens, who merely asked for five dollars, Goetz
276. See Jeffrey Bellin, The Silence Penalty, 103 IOWA L. REV. 395, 399 (2018).
277. Cynthia Lee, Race and Self-defense; Toward a Normative Conception of Reasonableness,
81 MINN. L. REV. 367, 388 (1996).
278. Aaron Goldstein, Race, Reasonableness, and the Rule of Law, 76 S. CALIF. L. REV. 1189,
1199 (2003) (emphasis added).
279. Addie Rolnick, Defending White Space, 40 CARDOZO L. REV.1639, 1666–68 (2019).
280. Id. at 1562–63, 1673.
281. People v. Goetz, 497 N.E.2d 41 (N.Y. 1986); see also LIGHT, supra note 24, at 144–48;
Lee, supra note 277, at 416–23. See generally GEORGE P. FLETCHER, A CRIME OF SELF-DEFENSE:
BERNARD GOETZ AND THE LAW OF TRIAL (1988).

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fired his unlicensed Smith & Wesson .38 revolver, contending at trial that he
could tell from their demeanor that he was in mortal danger.282 Goetz admitted
his intention was to murder them, to inflict as much suffering as possible.283
When one of the wounded youths appeared to Goetz to be “all right,” he fired
another shot (emptying his pistol) that severed his spine.284 Goetz was hailed
by many, and much of the New York media, as a crime-fighting folk hero.285
Despite serious questions about whether Goetz met the requirements for
self-defense under New York law—imminent danger, a necessary and
proportional response, and no intention to inflict injury beyond fending off the
danger—the jury gave the accused the benefit of reasonable doubt.286
As in Zimmerman’s trial, the judge’s instructions made no mention of race
or racial stereotypes.287 Yet the defense in both cases exploited the fears of the
nearly all-White juries, in Goetz’s by referring to the victims as “savages,”
“predators,” and “vultures.”288
The decades-old precedent of Graham v. Connor289 opens an even wider
berth in police shootings by reading into “the calculus of
reasonableness . . . allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain and
rapidly evolving.”290 This split-second decision-making gloss now dominates
litigation in this area.291

282. Goetz, 497 N.E.2d at 43–44.
283. Id. at 44.
284. FLETCHER, supra note 281, at 1.
285. Id. at 28.
286. Id. at 19–28, 196–97.
287. News 13 Florida, Jury Instructions in the George Zimmerman Trial, SPECTRUM NEWS (July
12,
2013),
https://www.baynews9.com/fl/tampa/news/2013/7/12/zimmerman_jury_instructions
[https://perma.cc/G6BC-SQEP].
288. Lee, supra note 277, at 422–23.
289. 490 U.S. 386 (1989); see Cynthia Lee, Reforming the Law on Police Use of Deadly Force:
De-Escalation, Preseizure Conduct, and Imperfect Self-Defense, 2018 ILL. L. REV. 629, 642–48
(2018); Kelly Hogue, When an Officer Kills: Turning Legal Police Conduct into Illegal Police
Misconduct, 98 TEX. L. REV. 601, 605–06 (2020).
290. Graham, 490 U.S. at 396–97; see also Michael Avery, Unreasonable Seizures of
Unreasonable People: Defining the Totality of Circumstances Relevant to Assessing the Police Use of
Force Against Emotionally Disturbed People, 34 COLUM. HUM. RTS. REV. 261 (2003); David D.
Kirkpatrick, Split-Second Decisions: How a Supreme Court Case Shaped Modern Policing, N.Y.
TIMES (Apr. 25, 2021), https://www.nytimes.com/2021/04/25/us/police-use-of-force.html
[https://perma.cc/9T8H-PKGV]; Goff & Richardson, supra note 138, at 64–66.
291. Eric R. Zimmerman, The Incompatibility of the Police Use of Force Objective loss
Reasonableness Standard and Split-Second Decision-Making, CRIM. JUST., Summer 2022, at 36, 38–
39.

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The exoneration narrative has worked well for defendants, at least until
Derek Chauvin’s conviction for killing George Floyd (where there was
infamously nine and a half minutes of time elapsed). Ferguson police officer
Darren Wilson, by way of example, testified that eighteen-year-old Michael
Brown suddenly and without provocation attacked him in his cruiser—“I felt
like a five-year-old holding onto Hulk Hogan,” and he shot him to death in selfdefense.292 In fact, he fired the fatal shot while Brown was fleeing the scene
(although some witness accounts had Brown turning back towards the officer,
perhaps to surrender).293 No serious injuries were found on Officer Wilson.294
Media stories often quickly emerge about the “criminality” of the victims,
what has been dubbed their “thugification.”295 Trayvon was suspended from
school for traces of marijuana found in his book bag; Floyd may have passed a
counterfeit $20 bill at the convenience store before being killed; Michael Brown
may have lifted cigarillos from a store—as if any of that, especially learned
afterward, could ever justify the lethal violence.296
The officer-friendly legal standard is particularly troublesome given what
we now know about the influences of unconscious biases and the effect of
stereotypes on quick decision-making. White actors are more likely to read the
actions of people of color as more threatening than they would other White
persons.297 Tamir Rice, a Black twelve-year-old playing with a toy gun, was
shot and killed by officers two seconds after they arrived at the playground.298
No charges were brought. Dereck Chauvin, on the other hand, the one officer
convicted in the death of a citizen, knelt on George Floyd’s neck for a period

292. Marc Fisher, Kimbriell Kelly & Amy Brittain, In Three Minutes, Two Lives Collide and a
Nation
Divides
over
Ferguson
Shooting,
WASH.
POST
(Dec.
6,
2014),
https://www.washingtonpost.com/investigations/in-three-minutes-two-lives-collide-and-a-nationdivides-over-ferguson-shooting/2014/12/06/b78b878e-7983-11e4-9a27-6fdbc612bff8_story.html
[https://perma.cc/B3PT-LSTM].
293. Id.
294. Id.
295. ANDERSON, supra note 96, at 150–51.
296. Fisher, Kelly & Brittain, supra note 292.
297. Goff & Richardson, supra note 138, at 64–65.
298. Emma G. Fitzsimmons, Video Shows Cleveland Officer Shot Boy in 2 Seconds, N.Y. TIMES
(Nov. 26, 2014), https://www.nytimes.com/2014/11/27/us/video-shows-cleveland-officer-shot-tamirrice-2-seconds-after-pulling-up-next-to-him.html [https://perma.cc/T963-DMB2]; Justice Department
Announces Closing of Investigation into 2014 Officer Involved Shooting in Cleveland Ohio, U.S. DEP’T
OF JUST. (Dec. 29, 2020), https://www.justice.gov/opa/pr/justice-department-announces-closinginvestigation-2014-officer-involved-shooting-cleveland [https://perma.cc/TE9A-4GX4].

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of nine-plus minutes, hardly the split-second that might have also exonerated
him as well.299
The stereotype of Black criminality played itself out when in 1999 four
NYPD officers thought they saw a gun in Amadou Diallo’s hand as they
surrounded him in his Bronx apartment doorway—it was in fact the wallet that
held the very identification that they were demanding from him.300 Research
documents the tendency to “see” a weapon on unarmed Black persons.301 The
subjects in a 2018 study identified Black men with something in their hand as
more threatening than White men holding something.302 And observers
famously migrated a knife held by a White man into the hands of an unarmed
Black man in another experiment.303 “[O]bserving an armed Black perpetrator
automatically activates a stereotype linking Black men with weapons and
crime.”304 Numerous studies teach that “seeing black” all too often means
seeing imminent danger.305
As Professor Cynthia Lee observes,
This empirical research has disturbing implications for selfdefense cases. In self-defense cases, a critical question is
whether the defendant’s belief in the need to use deadly force
in self-defense was reasonable. A defendant claiming selfdefense to defend against a homicide charge will only be
acquitted if the jury finds that the defendant honestly and
reasonably believed it was necessary to use deadly force to
protect against an imminent, unlawful threat of death or serious
bodily injury. If most individuals would be more likely to “see”
a weapon in the hands of an unarmed Black person than in the
299. George Floyd: Jury Finds Derek Chauvin Guilty of Murder, BBC NEWS (Apr. 21, 2021),
https://www.bbc.com/news/world-us-canada-56818766 [https://perma.cc/Y2EH-TE7L].
300. Michael Cooper, Officers in Bronx Fire 41 Shots, and an Unarmed Man is Killed, N.Y.
TIMES, February 5, 1999, at A1; Andrea Reiher, What Happened to Amadou Diallo’s Killers?, HEAVY
(May 11, 2020), https://heavy.com/entertainment/2020/05/amadou-diallo-police-officers-killers/
[https://perma.cc/9JC7-ZWLB].
301. See Lee, supra note 101, at 1582–84. “The shooter bias studies discussed above provide
strong evidence that individuals are quicker to associate Black individuals with weapons and to
perceive Blacks as armed and dangerous, regardless of whether they are actually armed and
dangerous.” Id. at 1585.
302. Kerri L. Pickel & Danielle E. Sneyd, The Weapon Focus Effect is Weaker with Black Versus
White Male Perpetrators, 26 MEMORY 29, 39 (2018) (“[T]he data serve to illustrate how racial stereotypes can lead to disparate treatment of Black and White offenders.”).
303. Brent Staples, How a Black Man’s Wallet Becomes a “Gun”, N.Y. TIMES, Mar. 12, 2000,
at 14 (“The point was that racial categories are freighted with negative meanings that sometimes make
us view people as threatening without cause and that sometimes get us to see things that do not exist.”).
304. Pickel & Sneyd, supra note 302, at 29.
305. ANDERSON, supra note 96, at 152–53; Lee, supra note 101, at 152–215.

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hands of an unarmed White person and are thus more likely to
shoot an unarmed Black person when they would not shoot a
similarly situated White person, then jurors in self-defense
cases may also be more likely to find that an individual who
says he shot an unarmed Black person in self-defense because
he believed the victim was about to kill or seriously injure him
acted reasonably, even if he was mistaken. Jurors are unlikely
to realize that negative stereotypes about Blacks may be
influencing their evaluation of the reasonableness of the
defendant’s beliefs and actions unless they are made aware of
this possibility.306
Data confirms that White killers of Black victims are far more likely to be
ruled as justified than Black on White killings.307 The experience with Stand
Your Ground laws has only exacerbated racial disparities in the criminal justice
system—SYG laws have proven far more likely to exonerate a White killer of
a Black victim than a Black killer of a White victim.308
The law of self-defense, as well as the standards for police shootings, need
to meaningfully address these realities of race.
In cases like Trayvon Martin’s and Tamir Rice, experts should be permitted
to educate the jurors about the distorting effects of race on perceptions of danger
and the science of implicit bias regarding the mere seconds it takes for tragic
misjudgments to be made. Jury instructions along the lines of the admonitions
that now typically accompany eyewitness identification testimony—advising
lay jurors of the social science learning regarding the foibles of human
perception, memory, as well as the problems of suggestibility and confirmation
bias—may serve as an example.
Some model instructions do address race explicitly, warning jurors not to
be improperly influenced by it in their deliberations, as this admonition used in
the district courts in the Ninth Circuit:
Perform these duties fairly and impartially. You should not
be influenced by any person’s race, color, religious beliefs,
national ancestry, sexual orientation, gender identity, gender,
or economic circumstances. Also, do not allow yourself to be
influenced by personal likes or dislikes, sympathy, prejudice,
fear, public opinion, or biases, including unconscious biases.
306. Lee, supra note 101, at 1584–85; see also L. Song Richardson & Phillip Atiba Goff, SelfDefense and the Suspicion Heuristic, 98 IOWA L. REV. 293, 295 (2012) (“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.”).
307. See Addie Rolnick, Defending White Space, 40 CARDOZO L. REV. 1639, 1653–54 nn. 44–
49 (2019).
308. LIGHT, supra note 24, at 162–63; Lee, supra note 57, at 111–12.

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Unconscious biases are stereotypes, attitudes, or preferences
that people may consciously reject but may be expressed
without conscious awareness, control, or intention. Like
conscious bias, unconscious bias can affect how we evaluate
information and make decisions.309
No such instruction was given to the Zimmerman jurors. The closest the
judge got to the issue was the cryptic “[y]our verdict should not be influenced
by feelings of prejudice, bias or sympathy.”310
Focused training and seminars for prosecutors facing such self-defense
scenarios should prepare them to dissect and disassemble dubious defense
claims of reasonable fear in order to avoid verdicts of acquittal like
Zimmerman’s, where the government failed to even acknowledge the clear
racial dimensions of the defendant’s wholly irrational reaction to a teenager
walking in the rain, and then his resort to lethal violence.
Complicating the self-defense picture is the matter of “officer-created
jeopardy,” where the actor himself creates the very danger he asserts justifies
his violence.311 An officer, for example, jumps on the hood of a fleeing
suspect’s car, then fears the motion will eject him and shoots the driver,
claiming self-defense. If we look at just the final frame, we miss the fact that it
was the officer’s own earlier decision that put him at risk.
George Zimmerman similarly did so when he stalked a teenager on a dark,
rainy night, precipitating a struggle on the ground where he claimed he feared
his gun would be taken and used against him. While the prosecutor urged the
jurors to go back to the beginning—Zimmerman’s dogged pursuit of Martin by
car and foot—the trial judge instead directed their attention to the final fatal
encounter.312
The jurors were directed to begin their assessment of Zimmerman’s selfdefense claim with the struggle on the ground, ignoring how the two ended up
there. All that mattered to them, we now know from interviews, was “who was
on top and who was on the bottom.”313

309. MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE
NINTH CIRCUIT § 1.1. (2010).
310. Jury Instructions, Florida v. Zimmerman, No. 12-CF-1083-A (Fla. Cir. Ct. July 13, 2013),
http://law2.umkc.edu/faculty/projects/ftrials/zimmerman1/Zimjuryinstructions.pdf
[https://perma.cc/96KN-6MKB].
311. Cynthia Lee, Officer-Created Jeopardy: Broadening the Time Frame for Assessing a Police
Officer’s Use of Deadly Force, 89 GEO. WASH. L. REV. 1362 (2021); David D. Kirkpatrick, Steve
Eder, Kim Barker, & Julie Tate, How Broken Taillights End in Killings by Police, N.Y. TIMES, Oct.
31, 2021, at 17.
312. ANDERSON, supra note 96, at 151.
313. BLOOM, supra note 71, at 20.

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Kyle Rittenhouse forced his way through a crowd of demonstrators
brandishing an assault rifle. The armed killers of Ahmaud Arbery pursued him
in two pick-up trucks, cornered him, and attempted a forcible “citizen’s arrest.”
Those back stories are critical to an understanding of what really precipitated
their perceived necessity for “self-defense.”
Ignoring what led up to these killings is like coming into Shakespeare’s
Julius Caesar at Act III, and being perplexed by the inexplicable brutal stabbing
of the emperor by best friend Brutus.
As Professor Michael Avery has observed,
A police officer’s insistence that he was forced to make a
split-second decision would often seem to be a rationalization
of his own actions that precipitated a crisis during an incident.
The training given to police officers, when followed,
minimizes the need for split-second decisions. Indeed, many of
the decisions about how such incidents should be handled have
already been addressed in the training materials. The officer
should not be in the position of attempting to develop [deescalation techniques] on the street, from scratch.314
Kimberly Kessler Ferzan has argued that a citizen who, in our gun-drenched
society,315 uses his firearm in what he claims was “self-defense,” but who (like
Rittenhouse and Zimmerman) in fact put himself in the very situation where he
feared his gun would be taken and used against him, has forfeited that
defense.316 The law in many jurisdictions, including Florida, actually does
provide that a person who provokes the very risk that he violently responds to
is not entitled to claim self-defense.317 Florida law provides:
JUSTIFIABLE USE OF FORCE
776.041 Use or threatened use of force by aggressor.—The
justification described in the preceding sections of this chapter
is not available to a person who:
...

(2) Initially provokes the use or threatened use of force
against himself or herself, unless:
314. Avery, supra note 290, at 322.
315. There are more guns than people, sales of firearms have soared in recent years, and those
states desirous of some limited regulation have been thwarted by the Supreme Court. See N.Y. State
Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022); District of Columbia v. Heller, 554 U.S. 570
(2008).
316. Ferzan, supra note 186, at 7–8.
317. The Model Penal Code § 3.04(2)(b) provides that self-defense is not available where “the
actor, with the purpose of causing death or serious bodily injury, provoked the use of force against
himself in the same encounter.” MODEL PENAL CODE § 3.04(2)(b) (AM. L. INST., Proposed Official
Draft 1985).

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(a) Such force or threat of force is so great that the person
reasonably believes that he or she is in imminent danger of
death or great bodily harm and that he or she has exhausted
every reasonable means to escape such danger other than the
use or threatened use of force which is likely to cause death or
great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact
with the assailant and indicates clearly to the assailant that he
or she desires to withdraw and terminate the use or threatened
use of force, but the assailant continues or resumes the use or
threatened use of force.318
In words that seem to describe exactly what happened on February 26,
2012, the Florida Supreme Court long ago observed: “The law is quite clear
that one may not provoke a difficulty and having done so act under the necessity
produced by the difficulty, then kill his adversary and justify the homicide
under the plea of self-defense.”319 In a post-Zimmerman opinion, interestingly,
a Florida court affirmed the trial court’s inclusion of the initial aggressor
instruction where the provocation included (as in Martin’s case) stalking of the
victim, leaving the issue to the jury.320
The Zimmerman trial judge nonetheless refused the State’s request that she
give the initial aggressor instruction—that if Zimmerman’s own behavior
provoked the violence, he forfeited his defense.321 The trial judge perhaps
accepted the defense position that stalking Martin did not constitute
“provocation.” That ruling may in itself have sunk the State’s case.322 The jury
was not given the chance to determine whether Zimmerman created his own
crisis, as in the case noted above. They may well have concluded he forfeited
his defense.
Nor, in the judge’s thirty-minutes of instructions emphasizing that all
Zimmerman needed was a reasonable belief he was in danger, is there any
mention of the legal significance of Zimmerman pursuing Martin against the
318. FLA. STAT. § 776.041 (2022). Florida Standard Jury Instruction (Criminal 3.6(f)) tracks this
language. Similarly, in Massachusetts: “Self-defense is generally not available to a defendant who
provokes or initiates an attack, unless the initial aggressor withdraws from the fight and announces his
intention to retire and the other party continues to attack. This is so because someone who provokes or
initiates an attack cannot be said to be taking advantage of every opportunity to avoid the combat.”
Commonwealth. v. Andrade, 174 N.E.3d 281, 310 (Mass. 2021).
319. Mixon v. State, 59 So. 2d 38, 39–40 (Fla. 1952).
320. Moorer v. State, 278 So. 3d 181, 189–90 (Fla. Dist. Ct. App. 2019).
321. Lee, supra note 90, at 34.
322. Alafair Burke, What You May Not Know About the Zimmerman Verdict: The Evolution of
a Jury Instruction, HUFFPOST (July 15, 2013), https://www.huffpost.com/entry/george-zimmermanjury-instructions_b_3596685 [https://perma.cc/Q5WL-H2MJ].

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explicit warning of the 911 dispatcher, thereby creating the very crisis that he
then claimed required his lethal response. She instructed:
A person is justified in using deadly force if he reasonably
believes that such force is necessary to prevent imminent death
or great bodily harm to himself. In deciding whether George
Zimmerman was justified in the use of deadly force, you must
judge him by the circumstances by which he was surrounded
at the time the force was used. The danger facing George
Zimmerman need not have been actual; however, to justify the
use of deadly force, the appearance of danger must have been
so real that a reasonably cautious and prudent person under
the same circumstances would have believed that the danger
could be avoided only through the use of that force. Based
upon appearances, George Zimmerman must have actually
believed that the danger was real.323
Having covered the Zimmerman trial for NBC News, legal expert Lisa
Bloom found utterly unreasonable, indeed implausible, Zimmerman’s fear that,
while on his back in the wet grass with his pistol hidden inside a holster clipped
to the back of his waistband, Martin could possibly have grabbed it.324
And then there is the matter of proportionately. Even assuming Zimmerman
could rightfully defend himself when Martin was on top of him, was lethal force
justified? Was a bullet through the heart the only alternative available to him?
Most states (like New York’s)325 insist that self-defense force be proportional
to the threat. Some state’s laws explicitly require, for self-defense in police
shootings, that the officer’s actions be reasonable and not excessive.326 An
actor, police, or civilian who carries stereotypes of Black violence may, as
George Zimmerman did, resort immediately to lethal force.
With regard to lethal force by civilians like Zimmerman, it must be noted,
we do not face the usual objection raised in cases of police violence—i.e., that
to impose punishment will cause officers to hesitate from quick response to a
threat, at the risk of their own and others lives.
Professor Ferzan bemoans what she sees as the “shift in cultural
norms . . . moving from citizen defense to citizen offense”:
[W]hat we see percolating to the top of the cultural
conversation is not the language of defense—it is the language
of aggression. Citizens’ arrests, and more generally the idea of

323.
324.
325.
326.

For the complete instructions, see Jury Instructions, supra note 310 (emphasis added).
BLOOM, supra note 71, at 2, 60–72.
See FLETCHER, supra note 281, at 19–28.
See citations in Lee, supra note 311, at 1369–71 nn.9–14.

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using violence in the name of the state, is where the action is.327
Fear of The Other in our society is too often racialized, as it apparently was
in George Zimmerman’s mind on February 26, 2012. Social psychologist
Gordon Allport long ago identified “the two basic ingredients of [all]
prejudice—denigration and gross overgeneralization.”328 Zimmerman simply
saw a Black kid in a hoodie, who did not belong in his gated community, and
he responded accordingly.
It is well beyond time to integrate this reality into our law of self-defense.
IX. FINAL REFLECTIONS
What can be said about the historical and legal significance of the Trayvon
Martin case ten years hence? For many it stands as proof that in America, Black
lives still don’t matter. Could anyone honestly say the story would have had the
same ending with a White teenage victim and Black adult shooter?
Martin and Zimmerman each played roles long carved in the American
hills. The case lives on as “a narrative Rorschach that each side will interpret
as it wishes.”329 Just as with the double homicide trial of O.J. Simpson and the
prosecutions of the police who beat Rodney King, race is the prism through
which Americans view and assess the trial, seeing Zimmerman as either hero
or villain.330 Even the “liberal” New York Times led its story on the jury

327. Ferzan, supra note 186, at 2, 8 (emphasis added).
328. ALLPORT, supra note 22, at 34.
329. Alan Dershowitz, The “Rorschach” Facts in the Killing of Trayvon Martin, HUFFPOST
(June
11,
2012),
https://www.huffpost.com/entry/the-rorschach-facts-in-th_b_1418441
[https://perma.cc/758P-ETW3].
330. See Bryan Adamson, Thugs, Crooks, and Rebellious Negroes: Racist and Racialized Media
Co Media Coverage of Michael Brown and the Ferguson Demonstrations, 32 HARV. J. RACIAL &
ETHNIC JUST. 189, 191–92 (2016) (examining the media’s framing of Black deaths at the hands of
police officers and the effects of that framing); Calvin John Smiley & David Fakunle, From “Brute”
to “Thug:” The Demonization and Criminalization of Unarmed Black Male Victims in America, 26 J.
HUM. BEHAV. SOC. ENV’T 350–66 (2016) (“[I]nvestigat[ing] the historical criminalization of Black
males and its connection to contemporary unarmed victims of law enforcement.”); Adam Johnson,
Opinion, How the Media Smears Black Victims, L.A. TIMES (Mar. 30, 2017),
https://www.latimes.com/opi”nion/op-ed/la-oe-johnson-black-victim-20170330-story.html
[https://perma.cc/74YF-VKXD] (providing examples of headlines humanizing White perpetrators of
violence and dehumanizing Black victims of police violence); Nick Wing, When The Media Treats
White Suspects And Killers Better Than Black Victims, HUFFPOST (Dec. 6, 2017),
https://www.huffpost.com/entry/media-black-victims_n_5673291
[https://perma.cc/Z32X-5QZM]
(same); Video: The Media Doesn’t Humanize Black Victims The Way It Does White Killers, HUFFPOST
(Mar. 22, 2018), https://www.huffpost.com/entry/headlines-seem-to-show-racial-double-standard-forviolent-acts_n_5ab406c5e4b0bc0061c670cb [https://perma.cc/5BX7-V7EA].

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selection with reference to “an altercation” between Zimmerman and Martin,
not even mentioning the stalking and confrontation that preceded it.331
We witness the flagrant disparity in treatment between White versus Black
protestors in the shocking images of the January 6th insurrectionists being
escorted out by police and sent on their way after the brutal storming of the
Capitol, when only months before non-violent protestors of George Floyd’s
killing were met with batons, tear gas, rubber bullets, arrest, and even death.332
Most prosecutions to date that have been brought for the attack on our seat of
government have been for relatively minor charges, and sentences have been
lenient given the unprecedented gravity of the crime.333
George Floyd’s case focused worldwide attention on the killing of unarmed
Black males under color of law. It produced the largest social justice protests
in American history, consuming much of the spring and summer of 2020, a
record $27 million civil settlement with the Floyd family,334 and a rare guilty
verdict against the officer.
But unlike Floyd and the numerous other police-involved victims, Trayvon
Martin was killed by a civilian, a wannabe cop with no legal authority, no
training, and, ultimately, no accountability. His story is the familiar one of

331. Buckley, supra note 78.
332. Kiara Brantley-Jones, Abby Cruz & Meredith Deliso, Extraordinary Dichotomy in Police
Response to Black Lives Matter Protests, Capitol Chaos: DC Attorney General, ABC NEWS (Jan. 8,
2021),
https://abcnews.go.com/US/extraordinary-dichotomy-police-response-black-lives-matterprotests/story?id=75118567 [https://perma.cc/6NZR-LWT7]; John Eligon, Racial Double Standard of
Capitol
Police
Draws
Outcry,
N.Y.
TIMES
(Jan.
7,
2021)
https://www.nytimes.com/2021/01/07/us/capitol-trump-mob-black-lives-matter.html
[https://perma.cc/8RXD-4NY5]; Leila Fadel, BLM Protesters Express Frustration Over Police
Treatment
Of
Mob
On
Capitol
Hill,
NPR
(Jan.
8,
2021),
https://www.npr.org/2021/01/08/954994383/blm-protesters-express-frustration-over-policetreatment-of-mob-on-capitol-hill [https://perma.cc/YG4M-LVKU]; Jared Goyette, Joey Peters &
Becky Z. Dernbach, Black Protesters in Minneapolis Have Encountered Tear Gas, Rubber Bullets,
and Batons. White Pro-Trump Crowds Took Selfies with U.S. Capitol Police, SAHAN J. (Jan. 7, 2021),
https://sahanjournal.com/police/minneapolis-george-floyd-protestors-u-s-capitol-riot/
[https://perma.cc/Y36W-L3HU]; Janelle Griffith & Deon J. Hampton, Capitol Police Response to
Rioters Draws Claims of Racist Double Standards, NBC NEWS (Jan. 7, 2021),
https://www.nbcnews.com/news/us-news/capitol-police-response-rioters-draws-claims-racist-doublestandards-n1253363 [https://perma.cc/Y8Q4-9VJZ].
333. Many were charged with “[k]nowingly [e]ntering or [r]emaining in any Restricted
[b]uilding or [g]rounds without lawful authority.” U.S. DEP’T OF JUST., supra note 183.
334. Nicholas Bogel-Burroughs & John Eligon, George Floyd’s Family Settles Suit Against
Minneapolis
for
$27
Million,
N.Y.
TIMES
(Mar.
12,
2021),
https://www.nytimes.com/2021/03/12/us/george-floyd-minneapolis-settlement.html
[https://perma.cc/2S7A-ZPL2].

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vigilantism. Trayvon was a victim of the moral panic about crime335 (especially
Black crime) played out, in his case, in the form of the Neighborhood Crime
Watch phenomenon.
So much, and so little, has changed since 2012. The division in the
populace’s views on hot-button issues has calcified into a potentially
unbreachable chasm, sometimes accompanied by violence. To comprehend the
insistence of some of our fellow citizens that George Zimmerman, Bernard
Goetz, Kyle Rittenhouse and the three killers of Ahmaud Arbery, are the real
victims in their stories, or anti-crime superheroes, we might look back sadly at
Chief Justice Taney’s infamous declaration in Dred Scott—Black persons “had
no rights which the White man was bound to respect.”336
Of course that is no longer entirely true—there are the post-Civil War
amendments, Brown v. Board of Education, the landmark civil rights legislation
of the 1960s—major advances to be sure. But DuBois’ question to his fellow
Black Americans one hundred and twenty years ago—How does it feel to be a
problem?—still resonates.
Trayvon Martin was a problem on February 26, 2012, in the wrong place at
the wrong time. George Zimmerman saw the problem, and he dealt swiftly with
it. The police saw the problem as well, and let its solution walk out the door a
free man. The prosecutors saw the problem, and saw fit to let Zimmerman go
uncharged for two months. The jurors (the voice of the community) saw the
problem, and retroactively invested Zimmerman with lawful authority to deal
with it as he had.
Perceptions of American reality have long divided on racial, gender,
religious, and ethnic lines. The current effort to sanitize history represented by
the anti-Critical Race Studies (actually anti-History) movement would erase the
Native American genocide, slavery, Jim Crow, lynching, and anything that
might engender guilt in White individuals—and substitute a mythic narrative
of the “land of the free and home of the brave,” the “cradle of liberty,” Ronald
Reagan’s “City on the Hill.”337
This is what makes keeping Trayvon Martin’s case in the public memory
so very important. It’s not yesterday’s news.
335. See Chas Critcher, Moral Panics, OXFORD RSCH. ENCYCLOPEDIA: CRIMINOLOGY & CRIM.
JUST.
(Mar.
29,
2017),
https://oxfordre.com/criminology/display/10.1093/acrefore/
9780190264079.001.0001/acrefore-9780190264079-e-155?rskey=Y4hRHd&result=1
[https://perma.cc/B47V-GS4Y].
336. Dred Scott v. Sandford, 60 U.S. 393, 407 (1857).
337. Daniel Kreiss, Alice Marwick & Francesca Bolla Tripodi, The Anti–Critical Race Theory
Movement Will Profoundly Affect Public Education, SCI. AM. (Nov. 10, 2021),
https://www.scientificamerican.com/article/the-anti-critical-race-theory-movement-will-profoundlyaffect-public-education/ [https://perma.cc/V8RW-247M].