Defusing Implicit Bias
Jonathan Feingold & Karen Lorang
59 UCLA L. Rev. Disc. 210
The February 2012 killing of Trayvon Martin reignited the national conversation about race and violence.1 Despite the sheer volume of discussion and debate arising from this tragedy,2 insufficient attention has been paid to the potentially deadly mix of guns and implicit bias.3 Evidence of implicit bias and its power to alter real-world behavior is stronger now than ever.4 A growing body of research on “shooter bias” reveals that, as a result of implicit bias, both White and Black Americans are more likely to shoot unarmed Black men than unarmed White men.5 While the science cannot tell us whether implicit bias caused George Zimmerman to shoot Trayvon Martin, this moment marks an opportunity to examine the connection between implicit bias and guns.6 Defusing implicit bias is a daunting task,7 but the stakes are too high to ignore the problem. States, responsible for laws regulating gun ownership and use, must help defuse implicit bias before it becomes deadly.
I. Trayvon Martin
Seventeen-year-old Trayvon Martin was fatally shot while out walking on February 26, 2012.8 On the day he was killed, Trayvon and his father were visiting a friend in a gated community in Sanford, Florida.9 Trayvon walked to the local 7-Eleven,10 where he bought Skittles and an iced tea.11 George Zimmerman, a local neighborhood watch captain, was driving in his SUV when he noticed Trayvon walking back from the store.12 Unlike Zimmerman,13 Trayvon was Black.14 Trayvon was wearing a hooded sweatshirt.15 Zimmerman called the police because he felt Trayvon looked “real suspicious.”16 The police explicitly instructed Zimmerman not to follow Trayvon.17
Exactly what happened next is the subject of much debate, and we make no attempt to resolve any factual disputes here. What is clear is that although Trayvon was unarmed, Zimmerman eventually left his car and shot and killed Trayvon with a 9mm handgun.18 After police arrived at the scene, “Zimmerman was taken into custody, questioned and released.”19
Zimmerman claimed from the outset that he acted in self-defense.20 According to Zimmerman’s father, at some point during the encounter Zimmerman lost sight of Trayvon and began walking back to his car.21 Before reaching his car, Trayvon reappeared and allegedly punched Zimmerman “in the nose and slammed his head into the sidewalk.”22 In the ensuing moments, Zimmerman pulled his pistol from his waistband and shot Trayvon in the chest.23
Under a 2005 Florida statute,24 Zimmerman had no duty to retreat before using deadly force in self-defense as long as he was attacked in a place where he had a lawful right to be.25 Florida law states the following:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.26
In light of Zimmerman’s self-defense claim, the Sanford police initially concluded they had insufficient evidence to arrest Zimmerman on a manslaughter charge.27
Coverage of the case evolved slowly. A local television channel covered the killing the following day, and Florida newspapers picked up the story within a week.28 The national news media began reporting on the case in mid-March.29 As the story spread, the “reluctance to arrest Zimmerman sparked a national outcry, with many observers suspecting that Zimmerman, who is half-white and half-Latino, was given a break because of his race, and the race of the young man he fatally shot.”30 The public response to the incident included numerous rallies and protests.31 Supporters, including the Miami Heat basketball team32 and a Congressman on the House floor,33 symbolically wore hooded sweatshirts in solidarity.
As the public response grew, Florida Governor Rick Scott appointed State Attorney Angela Corey to act as special prosecutor on the case.34 On April 11, the state charged Zimmerman with second-degree murder,35 and he turned himself in to authorities.36 On April 20, Zimmerman took the stand during his bail hearing and apologized to Trayvon’s parents.37 Zimmerman was formally arraigned on May 8.38 Zimmerman did not attend the arraignment, but his attorney, Mark O’Mara, entered a written plea of not guilty39 and communicated Zimmerman’s wish to waive his right to a speedy trial.40 As a result, Zimmerman’s trial is not expected to begin before October 2012.41 A pretrial hearing has been set for August 8, 2012.42
Media and public debate following the shooting focused on the role that race might have played in arousing Zimmerman’s initial suspicions and subsequent actions. Time magazine revealed that “Zimmerman reportedly has a long history of making 911 calls about ‘suspicious’ black persons.”43 President Obama delicately marked this as a racially inflected moment when he told reporters, “If I had a son, he’d look like Trayvon.”44 Charles M. Blow, a Black New York Times columnist addressed the problem more directly, explaining “[t]his is the fear that seizes me whenever my boys are out in the world: that a man with a gun and an itchy finger will find them ‘suspicious.’”45 Jonathan Capehart of the Washington Post offered additional perspective, explaining that “[o]ne of the burdens of being a black male is carrying the heavy weight of other people’s suspicions.”46 Trayvon’s parents, and many others, have suggested that they believe racial profiling played a role in Trayvon’s death and the subsequent handling of the case.47
In response to these claims, Zimmerman’s father insisted that his son “would be the last to discriminate for any reason whatsoever,” and that “[t]he media portrayal of George as a racist could not be further from the truth.”48 Zimmerman’s original attorney similarly denied any racial motivation, explaining that his client mentors Black children and saying on CNN: “I don’t believe George Zimmerman is a racist, or that this was motivated by a dislike for African-Americans.”49 Others also criticized the focus on race. Former Republican Presidential hopeful Newt Gingrich slammed President Obama’s remarks, insisting, apparently without irony, that “we should be concerned about children of every background and all too often we’re not.”50
Unpacking the varied responses to Trayvon’s death requires a close look at the growing body of scientific evidence concerning implicit bias. At a basic level, implicit bias refers to the subconscious associations we make between a particular object and the meanings we attach to it.51 In the context of human beings, implicit biases result in automatic associations between an individual’s race and corresponding stereotypes and attitudes. Perhaps most importantly, we now know that implicit bias predicts actual behavior. Part II explores how evidence of implicit bias bridges the gap between those who see race as a key factor in Trayvon’s death and those who insist that race played no role at all.
II. Implicit Bias
Some, including Trayvon Martin’s parents, have implied that Trayvon’s death was the result of racial profiling or racial discrimination.52 Others, including Zimmerman’s father and his first attorney,53 rejected suggestions that race played any role in Zimmerman’s decision to pursue and ultimately to shoot Trayvon.54 Given the conflicting accounts and understandings of how events unfolded, how can we know whether race was a factor in Trayvon’s death? What evidence would prove that race motivated Zimmerman? Was this a moment of racial profiling? Is it fair to call Zimmerman a racist?
These questions lie at the heart of the national conversation that developed around this tragedy.55 Before trying to answer these questions, it is crucial to clearly define the term “racial discrimination.” The dominant conception of racial discrimination in the current debate has squarely reflected the U.S. Supreme Court’s antidiscrimination jurisprudence.56 Under the Court’s current approach,57 known as disparate treatment theory,58 racial discrimination exists if, and only if, an identifiable perpetrator treats a victim in a harmful way because of the victim’s race.59 While this articulation of racial discrimination appears straightforward, it begs the question: How do we know when someone acted because of race?
The public debate has been consistent with traditional applications of disparate treatment theory in characterizing the decision to act because of race as a conscious choice or intention.60 It should thus be unsurprising that parties on both sides have tried to offer evidence aimed at establishing the presence or absence of conscious intent.
As mentioned above, Zimmerman’s father and first attorney have adamantly denied that Zimmerman is a racist.61 To support their claims, Zimmerman’s father pointed out that his son was a “Spanish speaking minority with many black family members and friends” who had good relationships with his black neighbors and served as a mentor to two black children.62
Reliance on these forms of evidence to rebut accusations of Zimmerman’s racism should not be a surprise because of their relation to conscious intent. The value of this evidence depends on the assumption that if we explicitly reject racist behavior,63 we are not racist and will not discriminate because of race.64 This reliance, which we term the “racism defense,” has three components—an element to be proved and two associated logical inferences: (1) The perpetrator is not a racist and does not endorse racial discrimination; (2) Because the perpetrator is not a racist and does not endorse racial discrimination, the perpetrator would never intend to discriminate on the basis of race; and (3) Because the perpetrator did not intend to discriminate on the basis of race, the perpetrator could not have acted because of race.
Like allegations of racism, accusations of racial profiling often require or rely on evidence of conscious intent. Though presumptively unconstitutional,65 racial profiling is often justified on policy grounds as a rational form of racial discrimination.66 Racial profiling is rational in the sense that it relies on perceived statistical correlations between a particular racial group and a corresponding trait or behavior.67 For instance, when New York officials conduct covert surveillance on Muslim communities,68 the decision is based on a conscious belief that the targeted individuals are more likely to engage in terrorism than the general population.69 Understood in this way, a successful claim of racial profiling requires proof of a conscious decision to discriminate against the targeted group because of their race.70
These examples of racism defenses and racism allegations illustrate the central role that evidence of conscious intent plays in our public dialogue. Even within the disparate treatment theory of racial discrimination, however, such an approach fails to take into account recent findings from the fields of psychology and social cognition that complicate the way we may think about racially motivated acts.71 These findings reveal that implicit biases, often undetectable through introspection and self-reporting, cause us to treat others differently because of their race.72 To gain a more accurate sense of the role played by implicit biases, we begin by disaggregating the concepts of explicit and implicit biases.
Both explicit and implicit biases are the result of social cognitions.73 Cognitions are thoughts or feelings, and “[a] social cognition is a thought or feeling about a person or a social group, such as a racial group.”74 Explicit biases are thoughts or feelings that we are aware of and are able to identify through introspection.75 We commonly, though not always, “agree with and endorse our explicit [biases].”76 Racism allegations, and the corresponding racism defenses, often reflect our familiarity with explicit biases. Racism defenses regularly rely on the type of evidence offered by Zimmerman’s father, while those alleging racism correspondingly search for the smoking-gun quote or document that will reveal racist intent.77 The national focus on Zimmerman’s possible use of the pejorative term “coon” provides one such example of evidence common to a racism allegation.78
Implicit bias research shows that traditional understandings of conscious intent fail to tell the whole story. Implicit biases “pop into mind quickly and automatically without conscious volition.”79 Unlike explicit biases, implicit biases are difficult to identify because of introspective limitations and our own self-monitoring.80 In fact, we are usually unaware of, or mistaken about, the sources of our implicit biases and the influence they have on our judgment and behavior.81 Implicit biases may actually include “thought[s] or feeling[s] that we would reject as inaccurate or inappropriate upon self-reflection.”82 This disassociation between implicit and explicit biases means that we may honestly believe we hold positive attitudes about a particular racial group, yet we simultaneously hold negative attitudes toward that same group at an implicit level.83 This explains why being Hispanic, growing up in a multiracial household, having Black friends, and honestly professing antiracist ideals does not preclude the possibility that an individual might hold implicit negative attitudes about Blacks.
To circumvent challenges posed by our inability to access implicit biases, psychological tests have been designed to measure our unconscious cognitions. These tests have relied on various linguistic cues, physiological responses, microfacial movements, neurological activity, and “reaction times when completing various tasks.”84 Perhaps the most well-known test is the Implicit Association Test (IAT), which measures reaction times for sorting stimuli into categories.85 The IAT consistently reveals “implicit attitudes in favor of one social group over another.”86 For many Americans, implicit biases manifest “in the form of negative beliefs (stereotypes) and attitudes (prejudice) against racial minorities.”87
Because many people hold implicit biases, the real question becomes whether these biases influence or predict behavior. Jerry Kang summarizes the prevailing wisdom on this point:
There is now persuasive evidence that implicit bias against a social category, as measured by instruments such as the IAT, predicts disparate behavior toward individuals mapped to that category. This occurs notwithstanding contrary explicit commitments in favor of racial equality. In other words, even if our sincere self-reports of bias score zero, we would still engage in disparate treatment of individuals on the basis of race, consistent with our racial schemas. Controlled, deliberative, rational processes are not the only forces guiding our behavior. That we are not even aware of, much less intending, such race-contingent behavior does not magically erase the harm.88
In fact, studies have shown that “[a]utomatic associations influence behavior by both professionals and laypeople in employment, medical, voting, law enforcement, and countless other contexts.”89 Perhaps most troubling, and especially relevant to Trayvon’s death, evidence suggests that police officers and private citizens unconsciously rely on race when making decisions about whether or not to shoot.90 Part III proceeds by detailing the potentially deadly combination of implicit bias and guns.
III. Implicit Bias & Guns
More than twenty studies have measured the impact of race on the decision to shoot.91 These studies typically involve simulations, which are similar in some respects to video games.92 The simulations display individuals of various races in a wide variety of contexts, carrying either guns or innocuous items like cell phones or wallets.93 Participants are instructed to shoot anyone who is armed and to refrain from shooting anyone who is unarmed.94 Psychologists have found that “[p]articipants are faster and more accurate when shooting an armed Black man than an armed White man, and faster and more accurate when responding ‘don’t shoot’ to an unarmed White man than an unarmed Black man.”95
The apparent importance of implicit bias to these studies’ findings is striking. Benforado explains that “[s]cores on explicit prejudice scales do not correlate with shooter bias. However, experimental participants who demonstrate implicit associations between Blacks and weapons are more biased in their shooting behavior.”96 Moreover, Black and White participants reveal equivalent levels of shooter bias, suggesting that implicit stereotypes influence shooting decisions more than conscious racial attitudes.97 Collectively, the science suggests that “blacks face a threat from firearms that is both far more significant and different in character than that posed to whites.”98
IV. Defusing Implicit Bias
The growing evidence demonstrating that the combination of guns and implicit bias can lead to deadly mistakes makes state intervention imperative. As the primary regulators of guns,99 states should focus on strategies that defuse this potentially lethal cocktail.100 Two promising interventions are discussed below: gun training and revised self-defense laws. Both interventions are intentionally ex ante in that they are designed to prevent harm before it occurs.101 However, neither proposal is a panacea. They are manageable steps intended to minimize the most dramatic harms that can arise from implicit biases and guns.
A. Gun Training
Adam Benforado argues that states should address the link between implicit bias and shooter decisionmaking through regulations requiring mandatory gun training focused directly on mitigating the effect of implicit biases.102 Research indicates that training can help reduce the extent to which implicit bias influences the decision to shoot.103 Trainings vary by location, but relevant components include “shoot/don’t-shoot decisions for target silhouettes that appear suddenly, either armed or unarmed” at the firing range, “interactive video simulation[s] of . . . potentially hostile suspect[s],” and “simulated searches, [in which police] confront live actors armed with weapons that fire painful but nonlethal ammunition.”104 Police officers who have received extensive training make better decisions in shooter simulations than private citizens.105 Unlike trained police officers, untrained participants consistently “set a lower (i.e., more lenient or ‘trigger-happy’) criterion for Black, rather than White, targets.”106
Interestingly, however, even after trainings effectively improved the accuracy of officer decisionmaking, police officers retained an implicit bias against Black men. For instance, it required less time for trained officers to accurately respond “to targets congruent with culturally prevalent stereotypes (i.e., armed Black targets and unarmed White targets) . . . [than] to stereotype-incongruent targets (i.e., unarmed Black targets and armed White targets).”107 These results suggest that officers continue to harbor implicit biases but that training helps them reduce the actual consequence of their implicit biases.108 Given the evidence that training can help reduce the danger that arises from the combination of guns and implicit biases, states should require targeted training for gun owners.109
Such training should survive any constitutional challenges because “[n]o mainstream scholar of the Second Amendment denies that government must have the authority to adopt legislation . . . requiring education and training.”110 Moreover, as Benforado has stated, the training requirements could be designed so that the ultimate burdens on the state and individual gun owners would be relatively limited.111
B. Self-Defense Laws
Trayvon’s case has drawn national attention to Florida’s “stand your ground” self-defense law,112 described above in Part I. Historically, the common law imposed a duty to retreat. As Elizabeth Megale explains,
The duty to retreat protects individuals by requiring an actor to avoid an altercation unless his back is to the wall. This means, if someone attacks a pedestrian on the street, the pedestrian has a duty to run away or otherwise avoid engaging with the attacker, so long as it is reasonably safe to do so.113
Stand your ground laws eliminate this duty, and instead allow “an individual to defend against violence without retreating, so long as the individual is lawfully present in that place.”114 Florida is not the only state that has eliminated or reduced the common law duty to retreat.115 Oklahoma has also adopted a nearly identical “Make My Day” statute,116 and between 2005 and 2009 over fifteen states adopted some form of the “castle doctrine,” which eliminates the duty to retreat before using deadly force under certain circumstances.117 These types of self-defense laws have troubling implications. Under Florida’s law, “anytime one claims to perceive a threat, that individual would be justified in reacting violently; they would have little incentive to diffuse the situation by retreating.”118 Benforado explains that permissive self-defense laws may also alter shooter decisionmaking in a way that increases the impact of implicit bias.119 A primary concern is that “[o]verly-broad Stand Your Ground statutes place lives in danger because a person is permitted to harm, or even kill, another before considering whether an actual threat exists.”120
Encouraging a culture of permissive self-defense is especially problematic because our implicit biases make it difficult for us to accurately evaluate potentially threatening situations. Studies have shown that identical ambiguous behaviors are more often interpreted as violent when the perpetrator is Black, rather than White.121 Additionally, researchers have found that those with high levels of implicit bias perceive Black faces as more hostile than identical White faces.122 Importantly, “explicit prejudice did not predict when Whites saw threatening affect in Black faces.” Thus, while it is impossible to know whether implicit bias played any role in this case, research shows that implicit biases could have caused Zimmerman to perceive Trayvon Martin as hostile, even if “[t]he media portrayal of George as a racist could not be further from the truth.”123
As explained in Part III above, the deadly actions that might be taken in response to these perceived threats also appear to be influenced by implicit biases. Permissive self-defense laws encourage automatic decisionmaking by encouraging people to take immediate action if they perceive a person to be threatening or suspicious.124 The evidence that implicit bias can contribute to deadly outcomes suggests that permissive self-defense laws are too vulnerable to abuse by our own implicit biases and the real world ways we unconsciously act on them. State self-defense laws should be revised to discourage the hasty use of deadly force, so that gut reactions based on unfounded fears and suspicions rooted in implicit biases have time to subside. Reinstating the common law duty to retreat is an important step in the right direction.
Trayvon Martin’s killing has provided an opportunity for collective reflection on issues of race and violence. However, the bulk of the conversation has focused on explicit racism, ignoring evidence that common implicit biases can also influence real-world behavior. We hope the tragedy will refocus attention on the importance of defusing the deadly combination of implicit bias and guns. Studies show that implicit biases influence shooter decisions, putting Blacks at greater risk than Whites. States must help defuse implicit bias before it becomes deadly. First, states should consider new gun training programs designed to reduce the power of implicit biases. Second, states should incorporate the latest evidence on implicit bias into their self-defense laws. These interventions may be a small step toward preventing similar tragedies.
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