Introduction

The February 2012 killing of Trayvon Martin reignited the national conver­sation about race and violence.[ref]See, e.g., Brian Stelter, In Slain Teenager’s Case, a Long Route to National Attention, N.Y. Times, Mar. 25, 2012, http://www.nytimes.com/2012/03/26/business/media/for-martins-case-a-long-route-to-national-attention.html.  While Trayvon Martin’s death has captured the nation’s attention, we should not forget that this shooting of an unarmed Black youth was not an isolated event.  See, e.g., Richard Winton, Officers Who Shot Pasadena Youth Identified, L.A. Times, Mar. 31, 2012, http://articles.latimes.com/2012/mar/31/local/la-me-0331-pasadena-shooting-20120331.[/ref]  Despite the sheer volume of discussion and debate arising from this tragedy,[ref]For instance, the Huffington Post and New York Times each created pages specifically designed to follow the developments in this story.  See The Trayvon Martin Case, Huffington Post, http://www.huffingtonpost.com/news/trayvon-martin (last visited June 29, 2012); Times Topics, Trayvon Martin Case (George Zimmerman), N.Y. Times, http://topics.nytimes.com/top/reference/timestopics/people/m/trayvon_martin/index.html (last updated June 21, 2012).[/ref] insufficient attention has been paid to the potentially deadly mix of guns and implicit bias.[ref]We are not claiming that race was the only relevant factor in this tragedy.  Other characteristics particular to Trayvon and the shooter, George Zimmerman, likely played crucial roles.  See Rich Benjamin, Op-Ed, The Gated Community Mentality, N.Y. Times, Mar. 29, 2009, http://www. nytimes.com/2012/03/30/opinion/the-gated-community-mentality.html (“[Trayvon’s] ‘suspicious’ profile amounted to more than his black skin.  He was profiled as young, loitering, non-property-owning and poor.”).[/ref]  Evidence of implicit bias and its power to alter real-world behavior is stronger now than ever.[ref]See infra Part II.[/ref]  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.[ref]Adam Benforado, Quick on the Draw: Implicit Bias and the Second Amendment, 89 Or. L. Rev. 1, 49 (2010) (“Implicit bias research suggests that large sectors of the population hold biases against minorities beyond their conscious awareness or control and that, in simulations, those individuals are more likely to shoot unarmed blacks than unarmed whites.”); see also Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1514–28 (2005).[/ref]  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.[ref]To be clear, we are not claiming that in this particular instance George Zimmerman acted because of implicit bias.  In line with prior scholarship on this issue, we are not advocating that it is valuable or even possible to use an individual’s implicit bias measure to determine whether a prior act was done with prejudice.  See generally Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465, 492–93 (2011) (“No serious scientist has called for using instruments such as the IAT in this specific, ex post context.”).  However, the inability to make a specific, ex post determination does not diminish the efficacy of the type of ex ante interventions we describe in Part III.[/ref]  Defusing implicit bias is a daunting task,[ref]A central impediment to defusing implicit bias results from the relatively nascent understandings of the underlying mechanisms surrounding this cognitive process.  See generally Adam Benforado & Jon Hanson, The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy, 57 Emory L.J. 311 (2008) (finding that intergroup contact negatively correlates with prejudice); Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action,”  94 Calif. L. Rev. 1063, 1098 (2006) (explaining that strategies for defusing implicit bias may gain greater relevance as our understanding of the science improves); Kang, supra note 5 (presenting debiasing agents as a potential strategy for reducing implicit bias); Kang & Lane, supra note 6.[/ref] 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.[ref]Charles M. Blow, Op-Ed, The Curious Case of Trayvon Martin, N.Y. Times, Mar. 16, 2012, http:// www.nytimes.com/2012/03/17/opinion/blow-the-curious-case-of-trayvon-martin.html; Stelter, supra note 1.[/ref]  On the day he was killed, Trayvon and his father were visiting a friend in a gated community in Sanford, Florida.[ref]Blow, supra note 8 (“Trayvon had been gunned down in a gated townhouse community in Sanford, Fla., outside Orlando. . . . Trayvon had left the house he and his father were visiting to walk to the local 7-Eleven.”).[/ref]  Trayvon walked to the local 7-Eleven,[ref]Id.[/ref] where he bought Skittles and an iced tea.[ref]Id.[/ref]  George Zimmerman, a local neighborhood watch captain, was driving in his SUV when he noticed Trayvon walking back from the store.[ref]Id. (“On his way back, he caught the attention of George Zimmerman, a 28-year-old neighborhood watch captain, who was in a sport-utility vehicle.”).[/ref]  Unlike Zimmerman,[ref]Zimmerman’s father described his son as “a Spanish speaking minority with many black family members and friends.”  Rene Stutzman, George Zimmerman’s Father: My Son Is Not Racist, Did Not Confront Trayvon Martin, Orlando Sentinel, Mar. 15, 2012, http://articles.orlandosentinel.com/2012-03-15/news/os-trayvon-martin-shooting-zimmerman-letter-20120315_1_robert-zimmerman-letter-unarmed-black-teenager (internal quotation marks omitted).[/ref] Trayvon was Black.[ref]Blow, supra note 8 (“Trayvon is black.  Zimmerman is not.”).[/ref]  Trayvon was wearing a hooded sweatshirt.[ref]Tim Padgett, The Controversial Florida Law at the Heart of the Trayvon Martin Case, Time, Mar. 20, 2012, http://www.time.com/time/nation/article/0,8599,2109511,00.html.[/ref]  Zimmerman called the police because he felt Trayvon looked “real suspicious.”[ref]Blow, supra note 8 (“Zimmerman called the police because the boy looked ‘real suspicious,’ according to a 911 call released late Friday.”).[/ref]  The police explicitly instructed Zimmerman not to follow Trayvon.[ref]Id. (“The operator told Zimmerman that officers were being dispatched and not to pursue the boy.”).[/ref]

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.[ref]Stutzman, supra note 13.[/ref]  After police arrived at the scene, “Zimmerman was taken into custody, questioned and released.”[ref]Blow, supra note 8.[/ref]

Zimmerman claimed from the outset that he acted in self-defense.[ref]See Stutzman, supra note 13.[/ref]  According to Zimmerman’s father, at some point during the encounter Zimmerman lost sight of Trayvon and began walking back to his car.[ref]Haeyoun Park et al., The Events Leading Up to the Shooting of Trayvon Martin, N.Y. Times, http://www.nytimes.com/interactive/2012/04/02/us/the-events-leading-to-the-shooting-of-trayvon-martin.html (last updated June 21, 2012).[/ref]  Before reaching his car, Trayvon reappeared and allegedly punched Zimmerman “in the nose and slammed his head into the sidewalk.”[ref]Id.[/ref]  In the ensuing moments, Zimmerman pulled his pistol from his waistband and shot Trayvon in the chest.[ref]Id. [/ref]

Under a 2005 Florida statute,[ref]2005 Fla. Laws 199 (codified at Fla. Stat. §§ 776.012–.013, .031–.032 (2010)).[/ref] 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.[ref]Christine Catalfamo, Stand Your Ground: Florida’s Castle Doctrine for the Twenty-First Century, 4 Rutgers J.L. & Pub. Pol’y 504, 524 (2007); Zachary L. Weaver, Comment, Florida’s “Stand Your Ground” Law: The Actual Effects and the Need for Clarification, 63 U. Miami L. Rev. 395, 395 (2008) (“Florida’s ‘Stand Your Ground’ Law has been controversial since Governor Jeb Bush signed it into law on April 26, 2005.”).[/ref]  Florida law states the following:

In light of Zimmerman’s self-defense claim, the Sanford police initially concluded they had insufficient evidence to arrest Zimmerman on a manslaughter charge.[ref]Stutzman, supra note 13 (“Police on Tuesday turned the case over to the State Attorney’s Office, saying they did not have evidence to justify George Zimmerman’s arrest on a charge of manslaughter.”).[/ref]

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.[ref]Stelter, supra note 1.[/ref]  The national news media began reporting on the case in mid-March.[ref]Id. (“It was not until mid-March, after word spread on Facebook and Twitter, that the shooting of Trayvon by George Zimmerman, 28, was widely reported by the national news media, highlighting the complex ways that news does and does not travel in the Internet age.”).[/ref]  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.”[ref]Richard Fausset, Trayvon Martin Case: George Zimmerman Waives Right to Speedy Trial, L.A. Times, May 8, 2012, http://www.latimes.com/news/nation/nationnow/la-na-nn-zimmerman-waives-speedy-trial-20120508,0,4573513.story.[/ref]  The public response to the incident included numerous rallies and protests.[ref]See, e.g., High School Students Walk Out in Protest of Trayvon Martin Shooting, MSNBC News (Mar. 23, 2012, 1:13 PM), http://usnews.msnbc.msn.com/_news/2012/03/23/10830314-high-school-students-walk-out-in-protest-of-trayvon-martin-shooting (describing a walk-out involving students from several South Florida high schools); Trayvon Martin: Protesters March to L.A. City Hall, L.A. Times Blogs—L.A. Now (Apr. 9, 2012, 6:47 PM), http://latimesblogs.latimes.com/lanow/ 2012/04/trayvon-martin-protesters-decry-racist-violence-march-to-la-city-hall.html (describing a march through downtown Los Angeles that arose in response to the Trayvon Martin killing).[/ref] Supporters, including the Miami Heat basketball team[ref]See Laura Isensee, Lesley Clark & Frances Robles, Trayvon Support Spreads to the Miami Heat, the White House and Dade Schools, Miami Herald, Mar. 23, 2012, http://www.miamiherald.com/2012/03/23/2710602/trayvon-support-spreads-to-the.html[/ref] and a Congressman on the House floor,[ref]See Catalina Camia, Hoodie for Trayvon on House Floor Sparks Debate, USA Today—OnPolitics (Mar. 29, 2012, 6:45 PM), http://content.usatoday.com/communities/onpolitics/post/2012/03/house-dress-code-hoodie-trayvon-martin-bobby-rush-/1.[/ref] 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.[ref]See Toluse Olorunnipa, Prosecutor: No Grand Jury for Trayvon Case, Miami Herald, Apr. 9, 2012, http://www.miamiherald.com/2012/04/09/2739151/trayvon-martin-case.html (“After public outcry, Gov. Rick Scott assigned Corey, the state attorney for the Jacksonville area, to take over the case on March 22.”).[/ref]  On April 11, the state charged Zimmerman with second-degree murder,[ref]Lizette Alvarez & Michael Cooper, Prosecutor Files Charge of 2nd-Degree Murder in Shooting of Martin, N.Y. Times, Apr. 11, 2012, http://www.nytimes.com/2012/04/12/us/zimmerman-to-be-charged-in-trayvon-martin-shooting.html.[/ref] and he turned himself in to authorities.[ref]Fausset, supra note 30.[/ref]  On April 20, Zimmerman took the stand during his bail hearing and apologized to Trayvon’s parents.[ref]Serge F. Kovaleski & Jennifer Preston, ‘I Am Sorry,’ Zimmerman Says as Bail Set at 0,000, N.Y. Times, Apr. 20, 2012, http://www.nytimes.com/2012/04/21/us/george-zimmerman-bail-hearing.html.[/ref]  Zimmerman was formally arraigned on May 8.[ref]Barry Leibowitz, George Zimmerman ‘Not Guilty’ Plea at Arraignment for Trayvon Martin Killing, CBSNews.com (May 8, 2012, 3:11 PM), http://www.cbsnews.com/8301-504083_162-57430236- 504083/george-zimmerman-not-guilty-plea-at-arraignment-for-trayon-martin-killing.[/ref]  Zimmerman did not attend the arraignment, but his attorney, Mark O’Mara, entered a written plea of not guilty[ref]Id.[/ref] and communicated Zimmerman’s wish to waive his right to a speedy trial.[ref]Fausset, supra note 30.[/ref]  As a result, Zimmerman’s trial is not expected to begin before October 2012.[ref]Id.[/ref]  A pretrial hearing has been set for August 8, 2012.[ref]Leibowitz, supra note 38.[/ref]

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.”[ref]Padgett, supra note 15.[/ref]  President Obama delicately marked this as a racially inflected moment when he told reporters, “If I had a son, he’d look like Trayvon.”[ref]Sam Stein, Obama on Trayvon Martin Case: ‘If I Had a Son, He’d Look Like Trayvon,’  Huffington Post (Mar. 23, 2012, 3:39 PM), http://www.huffingtonpost.com/2012/03/23/obama-trayvon-martin_n_1375083.html.[/ref]  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.’”[ref]Blow, supra note 8.[/ref]  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.”[ref]Jonathan Capehart, Under ‘Suspicion’: The Killing of Trayvon Martin, Wash. Post—Post Partisan (Mar. 18, 2012, 6:00 PM), http://www.washingtonpost.com/blogs/post-partisan/post/under-suspicion-the-killing-of-trayvon-martin/2011/03/04/gIQAz4F4KS_blog.html.[/ref]  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.[ref]See, e.g., Leibowitz, supra note 38 (“Martin’s family and supporters claim the black teen was a victim of racial profiling.”); Luke Russert, Trayvon Martin’s Family Alleges Racial Profiling Before Congress, MSNBC News (Mar. 27, 2012, 10:58 AM), http://usnews.msnbc.msn.com/_news/2012/03/27/ 10885680-trayvon-martins-family-alleges-racial-profiling-before-congress (“Ben Crump, an attorney for Martin’s parents, told the panel that the family was convinced Martin was targeted for special attention because of his race, arguing that tougher laws against profiling might have averted the shooting.”); Erika Bolstad, Trayvon Martin Slaying Sparks Racial Profiling Discussions on Capitol Hill, Miami Herald, Mar. 27, 2012, http://www.miamiherald.com/2012/03/27/2717699/trayvon-martin-slaying-sparks.html (“Trayvon’s parents spoke only briefly at the event, sponsored by Democrats on the House Judiciary Committee and billed as a briefing on racial profiling and hate crimes.  But they thanked the panel for a forum, so that as Trayvon’s father said, his son ‘did not die in vain.’”).[/ref]

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.”[ref]Stutzman, supra note 13.[/ref]  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.”[ref]Isensee, Clark & Robles, supra note 32.[/ref]  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.”[ref]Rebecca Kaplan, Gingrich Defends Criticism of Obama’s Trayvon Martin Comments, CBSNews.com (Mar. 26, 2012, 6:59 PM), http://www.cbsnews.com/8301-503544_162-57404856-503544/gingrich-defends-criticism-of-obamas-trayvon-martin-comments.[/ref]

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.[ref]For instance, through implicit cognitions we automatically identify a flat piece of wood with four legs as a table.  This process occurs without our conscious awareness.  We similarly make automatic asso-ciations that attach to human beings based on their race.  See Jerry Kang et al., Are Ideal Litigators White? Measuring the Myth of Colorblindness, 7 J. Empirical Legal Stud. 886, 888 (2010).[/ref]  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.[ref]See supra note 47.[/ref]  Others, including Zimmerman’s father and his first attorney,[ref]Zimmerman changed lawyers in April.  Alvarez & Cooper, supra note 35 (“Mr. Zimmerman changed his lawyers this week, and his old legal team held an odd news conference on Tuesday to say that they were withdrawing from the case and had not heard from him since the weekend.  Mr. Zimmerman’s new lawyer, Mark M. O’Mara, a well-known criminal lawyer, said in a brief interview Wednesday night that his client would plead not guilty at a hearing on Thursday.”).[/ref] rejected suggestions that race played any role in Zimmerman’s decision to pursue and ultimately to shoot Trayvon.[ref]See supra notes 48–49.[/ref]  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.[ref]See, e.g., Michael Arceneaux, Rush Limbaugh Downplays Racism in Trayvon Martin Case, NewsOne (Mar. 30, 2012), http://newsone.com/newsone-original/michaelarceneaux/no-surprise-rush-limbaugh-downplays-trayvon-martin-race (criticizing Limbaugh for framing the killing as not racist at all); Ruben Navarrette, Jr., Trayvon Martin Killing Raises Loaded Racial Terms, CNN.com (Mar. 29, 2012, 10:23 AM), http://www.cnn.com/2012/03/29/opinion/navarrette-white-hispanic/index.html (discussing the fact that Zimmerman could be racist even though he is Hispanic).[/ref]  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.[ref]There are some notable exceptions.  See, e.g., Sally Kohn, Opinion, Trayvon Martin, Obama, and the Persistence of Bias, Reuters—Great Debate (Mar. 21, 2012), http://blogs.reuters.com/great-debate/2012/03/21/trayvon-martin-obama-and-the-persistence-of-bias.[/ref]  Under the Court’s current approach,[ref]We use the term “current” to indicate that the antidiscrimination principle, which reflects a disparate treatment theory, is only one of several possible conceptions of racial discrimination.  For a critique of the antidiscrimination principle, see, for example, Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, in Critical Race Theory: The Key Writings That Formed the Movement 29 (Kimberlé Crenshaw et al. eds., 1995), and Laurence H. Tribe, Making Sense of the Equal Protection Clause: A Right Not to Be Subjugated, in American Constitutional Law 1514–21 (2d ed. 1988).[/ref] known as disparate treatment theory,[ref]The Supreme Court formally adopted disparate treatment theory as part of its equal protection jurisprudence in Washington v. Davis, 426 U.S. 229 (1976), in which the Court held that cognizable equal protection claims required a showing of discriminatory intent even in the presence of profound disparate impact.  In previous Title VII claims, the Court had found cognizable claims of discrim-ination without a showing of discriminatory intent.  See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (“The Company’s lack of discriminatory intent is suggested by special efforts to help the undereducated employees through Company financing of two-thirds the cost of tuition for high school training.  But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” (emphasis omitted)).[/ref] racial discrimination exists if, and only if, an iden­ti­fiable perpetrator treats a victim in a harmful way because of the victim’s race.[ref]Alternatively, we can think of this in terms of the counterfactual: The perpetrator would not have treated the victim in such a way if that victim had belonged to a different racial group.  For instance, disparate treatment would exist if members of a jury rated the performance of a White attorney higher than an Asian attorney solely as a result of the attorneys’ race.  See Kang et al., supra note 51.[/ref]  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.[ref]Conscious intent can be understood as akin to the criminal law concept of a mens rea intent, which is distinguished from other levels of fault because it describes a deliberate act.[/ref]  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.[ref]See Stutzman, supra note 13 (detailing Robert Zimmerman’s comments and including full text of a letter he sent the newspaper defending his son).[/ref]  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.[ref]Id.[/ref]

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,[ref]For example, Zimmerman’s father offered George’s non-White identity, multiracial family, and Black acquaintances as evidence that George explicitly rejected racist behavior.[/ref] we are not racist and will not discriminate because of race.[ref]Cf. Assoc. Press, Montana Judge Apologizes for Racist Email About Obama’s Mother, Christian Sci. Monitor, Mar. 1, 2012, http://www.csmonitor.com/USA/Latest-News-Wires/2012/0301/Montana-judge-apologizes-for-racist-email-about-Obama-s-mother (reporting that after sending a racist joke from his court email account, Judge Richard Cebull “acknowledged that the content of the email was racist, but said he does not consider himself racist”).[/ref]  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,[ref]See United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (holding that police could not make a roving patrol stop of a vehicle based on the sole fact that the driver and passengers were of apparent Mexican ancestry).  But see Whren v. United States, 517 U.S. 806, 813 (1996) (holding that the Fourth Amendment does not require an inquiry into whether police officers were motivated by race so long as probable cause exists).  Also noteworthy, while most racial classifications are subject to strict scrutiny (the highest degree of judicial review), suspect descriptions that rely on race are subject to nothing more than rational basis review (the lowest degree of judicial review).  See Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000).[/ref] racial profiling is often justified on policy grounds as a rational form of racial discrim­ination.[ref]See Richard Thompson Ford, The Depressing Cycle of Racial Accusation, Slate, July 23, 2009, http://www.slate.com/articles/news_and_politics/jurisprudence/2009/07/the_depressing_cycle_of_racial_accusation.html (“And even racial profiling in the sense of using race as a part of a generic composite of a typical criminal isn’t necessarily racist.  It’s a tragic fact that blacks as a group commit a disproportionate number of certain types of crime.”).[/ref]  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.[ref]Id.[/ref]  For instance, when New York officials conduct covert surveil­lance on Muslim communities,[ref]See Eileen Sullivan & Pete Yost, NYPD Muslim Surveillance: Attorney General Eric Holder Reviewing Spying Complaints, Huffington Post (Feb. 29, 2012, 9:58 AM), http://www.huffingtonpost.com/2012/02/29/nypd-muslim-surveillance_n_1308798.html.[/ref] the decision is based on a conscious belief that the targeted individuals are more likely to engage in terrorism than the general pop­u­lation.[ref]Id. [/ref]  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.[ref]The Supreme Court has also made distinctions between racial antagonism and common sense racial profiling.  In upholding the curfew and exclusion orders targeting Japanese Americans during World War II, the Court consistently differentiated between racial antagonism (which we could think of as pure, irrational racial hostility) and a more common sense racial profiling.  See Hirabayashi v. United States, 320 U.S. 81, 100 (1943) (“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people . . . . For that reason, legislative classification or discrim-ination based on race alone has often been held to be a denial of equal protection.  We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas.” (citations omitted)); Korematsu v. United States, 323 U.S. 214, 223 (1944) (“To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.  Korematsu was not excluded from the Military Area because of hostility to him or his race.  He was excluded because we are at war with the Japanese Empire . . . .” (emphasis omitted)).[/ref]

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.[ref]For an example of these findings, see Kang et al., supra note 51.[/ref]  These findings reveal that implicit biases, often undetectable through intros­pection and self-reporting, cause us to treat others differently because of their race.[ref]See infra Part III.[/ref]  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.[ref]See Kang et al., supra note 51, at 888.[/ref]  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.”[ref]Id. at 887; see also id. (“For instance, once we map an individual to the group Asian American, we might associate the traits ‘quiet,’ ‘foreign,’ or ‘mathematical’ to that person.”).[/ref]  Explicit biases are thoughts or feelings that we are aware of and are able to identify through introspection.[ref]See Kang & Lane, supra note 6, at 469–70.  For example, if an individual is aware of his or her belief that White men can’t jump, that is an explicit bias against White men.[/ref]  We commonly, though not always, “agree with and endorse our explicit [biases].”[ref]Id. at 470.[/ref]  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.[ref]For example, those trying to make a credible racism allegation might look for a statement in the legislative history or the corporate meeting notes that reveals a conscious intent to discriminate.[/ref]  The national focus on Zimmerman’s possible use of the pejorative term “coon” provides one such example of evidence common to a racism allegation.[ref]See, e.g., David Edwards, Attorney: Zimmerman Used ‘Term of Endearment’ Before Killing Trayvon Martin, Raw Story (Mar. 25, 2012, 3:23 PM), http://www.rawstory.com/rs/2012/03/25/attorney-zimmerman-used-term-of-endearment-before-killing-trayvon-martin; Trayvon Martin Shooting: Zimmermans’s Friend Speaks, ABCNews (Mar. 25, 2012, 8:09 AM), http://abcnews.go.com/GMA/video/trayvon-martin-shooting-geroge-zimmerman-legal-advisor-joe-oliver-interview-us-15997138.[/ref]

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.”[ref]Kang et al., supra note 51, at 887.[/ref]  Unlike explicit biases, implicit biases are difficult to identify because of introspective limitations and our own self-monitoring.[ref]See id. at 888.[/ref]  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.[ref]See id. at 887.[/ref]  Implicit biases may actually include “thought[s] or feeling[s] that we would reject as inaccurate or inappropriate upon self-reflection.”[ref]Id.[/ref]  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.[ref]See Kang, supra note 5, at 1512–13 (discussing how “Whites exhibited some explicit preference for themselves over Blacks, but that explicit preference paled in comparison to their implicit preference” (citing Brian A. Nosek, Mahzarin R. Banaji & Anthony G. Greenwald, Harvesting Implicit Group Attitudes and Beliefs From a Demonstration Web Site, 6 Group Dynamics 101, 105 (2002))).[/ref]  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.”[ref]Kang & Lane, supra note 6, at 471.[/ref]  Perhaps the most well-known test is the Implicit Association Test (IAT), which measures reaction times for sorting stimuli into categories.[ref]Id. at 472.  For more information on the Implicit Association Test (IAT), see Project Implicit, https://implicit.harvard.edu/implicit (last visited June 29, 2012).[/ref]  The IAT consis­tently reveals “implicit attitudes in favor of one social group over another.”[ref]Id. at 474 (“[P]articipants systematically preferred socially privileged groups: Young over Old, White over Black, Light Skinned over Dark Skinned, Other Peoples over Arab-Muslim, Abled over Disabled, Thin over Obese, and Straight over Gay.”).[/ref]  For many Americans, implicit biases manifest “in the form of nega­tive beliefs (ste­reotypes) and attitudes (prejudice) against racial minorities.”[ref]Kang, supra note 5, at 1494, 1512.[/ref]

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:

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.”[ref]Benforado, supra note 5, at 50; see also Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Then Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94 Am. Econ. Rev. 991 (2004) (observing that otherwise identical resumes with typically White names, as opposed to Black names, received 50 percent more callbacks for interviews); John T. Jost et al., The Existence of Implicit Bias Is Beyond Reasonable Doubt: A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies That No Manager Should Ignore, 29 Res. Org. Behav. 39 (2009) (responding to critiques of the IAT and summarizing research that reveals the existence of implicit bias among individuals in a range of industries); Allen R. McConnell & Jill M. Leibold, Relations Among the Implicit Association Test, Discriminatory Behavior, and Explicit Measures of Racial Attitudes, 37 J. Experimental Soc. Psychol. 435, 435–36 (2001) (observing a correlation between implicit attitudes and stranger-to-stranger social interactions); Laurie A. Rudman & Peter Glick, Prescriptive Gender Stereotypes and Backlash Toward Agentic Women, 57 J. Soc. Issues 743, 747–48 (2001) (observing a correlation between implicit attitudes and behavior vis-á-vis women).[/ref]  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.[ref]Benforado, supra note 5, at 42.  Adam Benforado highlighted the dangers inherent in the combin-ation of implicit bias and guns in 2009.  See id.  Part III draws heavily on his research and work.[/ref]  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.[ref]See id. at 43; see also Joshua Correll et al., The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Personality & Soc. Psychol. 1314, 1315–17 (2002).[/ref]  These studies typically involve simulations, which are similar in some respects to video games.[ref]See Benforado, supra note 5, at 43.[/ref]  The simulations display individuals of various races in a wide variety of contexts, carrying either guns or innocuous items like cell phones or wallets.[ref]Id.  A sample simulation is available at http://home.uchicago.edu/~jcorrell/TPOD.html.[/ref]  Participants are instructed to shoot anyone who is armed and to refrain from shooting anyone who is unarmed.[ref]Benforado, supra note 5, at 43.[/ref]  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.”[ref]Joshua Correll et al., Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot, 92 J. Personality & Soc. Psychol. 1006, 1015, 1017, 1019, 1020–22 (2007).[/ref]

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.”[ref]Benforado, supra note 5, at 43–44.[/ref]  Moreover, Black and White participants reveal equivalent levels of shooter bias, suggesting that implicit stereotypes influence shooting decisions more than conscious racial attitudes.[ref]Id. at 44 (“The notion that, at the unconscious level, racial stereotypes have a stronger impact on firing decisions than general negative sentiments toward African Americans is bolstered by the fact that white and black participants demonstrate equivalent levels of shooter bias.”).[/ref]  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.”[ref]Id. at 42.[/ref]

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,[ref]Cf. Michael P. O’Shea, Federalism and the Implementation of the Right to Arms, 59 Syracuse L. Rev. 201, 206 (2008) (“Precedent confirms the relevance of federalism arguments to national gun control.  Two of the most important decisions in the Rehnquist Court’s federalism revolution inva-lidated Congressional attempts to micromanage gun policy.”).[/ref] states should focus on strategies that defuse this potentially lethal cocktail.[ref]Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345, 413–17 (2007) (discussing various debiasing techniques, including confronting jurors with biases).[/ref]  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.[ref]Alternatively, it would be possible to propose ex post interventions designed to place blame and legal liability after the harm occurs.  See Kang & Lane, supra note 6, at 492.[/ref]  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.[ref]Benforado, supra note 5, at 57 (“In addition, unlike current firearm training courses—whose empha-sis is solely on educating students about gun laws; safe storage; weapon cleaning, loading, and firing; and other issues—new regulations would mandate firearm-simulation training and shooting practice aimed directly at reducing the impact of implicit bias.”).[/ref]  Research indicates that training can help reduce the extent to which implicit bias influences the decision to shoot.[ref]See, e.g., Correll et al., supra note 95, at 1015, 1017, 1019–22; see also E. Ashby Plant et al., Eliminating Automatic Racial Bias: Making Race Non-Diagnostic for Responses to Criminal Suspects, 41 J. Experimental Soc. Psychol. 141, 153 (2005).[/ref]  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.”[ref]Correll et al., supra note 95, at 1007.[/ref]  Police officers who have received extensive training make better deci­sions in shooter simulations than private citizens.[ref]Benforado, supra note 5, at 47.[/ref]  Unlike trained police officers, untrained participants consistently “set a lower (i.e., more lenient or ‘trigger-happy’) criterion for Black, rather than White, targets.”[ref]Id.[/ref]

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).”[ref]Correll, supra note 95, at 1020.[/ref]  These results suggest that officers continue to harbor implicit biases but that training helps them reduce the actual consequence of their implicit biases.[ref]See Benforado, supra note 5, at 48 (“Officers, just like the community sample, held implicit racial bias, but their training allowed them to override the automatic associations.”).[/ref]  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.[ref]Valid arguments might be made about whether owners of certain types of firearms, or those already regulated by limited licenses, should be exempted from such a requirement.  We leave those ques-tions for another day.[/ref]

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.”[ref]Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 707 (2007).[/ref]  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.[ref]Benforado argues that “a training requirement is unlikely to force gun owners to significantly alter their routines and caters to existing preferences.”  Benforado, supra note 5, at 63.  Additionally, “the proposed training requirements would not necessitate any major alterations to present institutions or structures, and they are unlikely to be prohibitively expensive to implement.”  Id.[/ref]

B.        Self-Defense Laws

Trayvon’s case has drawn national attention to Florida’s “stand your ground” self-defense law,[ref]Trayvon Martin Shooting Puts Focus on FL Gun Laws, S.F. Chron., Mar. 30, 2012, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/29/MNBN1NS224.DTL (“Florida’s gun rules, particu-larly its ‘stand your ground’ provision, have come under scrutiny since the Feb. 26 shooting of Trayvon Martin and have made Florida a national laboratory for firearm regulations.”).[/ref] described above in Part I.  Historically, the common law imposed a duty to retreat.  As Elizabeth Megale explains,

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.”[ref]Id. [/ref]  Florida is not the only state that has eliminated or reduced the common law duty to retreat.[ref]For a history of the common law duty to retreat, the evolution of the “castle doctrine,” and the development of “stand your ground” laws, see, for example, id. at 111–28.[/ref]  Oklahoma has also adopted a nearly identical “Make My Day” statute,[ref]See Benforado, supra note 5, at 17 (citing Okla. Stat. tit. 21, § 1289.25 (2010) (“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.”)).[/ref] 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.[ref]See id. (“In general, these ‘castle doctrine’ laws allow an individual to use reasonable force, including deadly force, against an attacker and eliminate any duty to retreat to safety.  These laws have become increasingly popular in the last five years, with over fifteen states adopting some form of the ‘castle doctrine’ since 2005.”).[/ref]  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.”[ref]Megale, supra note 113, at 115.[/ref]  Benforado explains that permis­sive self-defense laws may also alter shooter decisionmaking in a way that increases the impact of implicit bias.[ref]Benforado, supra note 5, at 56 (“[S]elf-defense laws may be altering the shooting decision itself in a way that makes implicit bias more of a threat.”).[/ref]  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.”[ref]Megale, supra note 113, at 116.[/ref]

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.[ref]Birt L. Duncan, Differential Social Perceptions and Attribution of Intergroup Violence: Testing the Lower Limits of Stereotyping of Blacks, 34 J. Personality & Soc. Psychol. 590, 596 (1976) (“White university subjects perceived the ‘somewhat ambiguous,’ certainly less than blatant shove as violent (and labeled it thusly) for all conditions in which the black was the harm-doer, to a greater extent when the victim is white, but also when the victim was another black.”), discussed in Kohn, supra note 56.[/ref]  Additionally, researchers have found that those with high levels of implicit bias perceive Black faces as more hostile than identical White faces.[ref]Kurt Hugenberg & Galen V. Bodenhausen, Facing Prejudice: Implicit Prejudice and the Perception of Facial Threat, 14 Psychol. Sci. 640, 643 (2003) (“Compared with individuals low in implicit prejudice, those high in implicit prejudice saw hostility as lingering longer and appearing more quickly on the faces of African Americans.”).[/ref]  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.”[ref]Stutzman, supra note 13.[/ref]

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.[ref]Benforado, supra note 5, at 56 (“The more permissive legal regime removes a check on pulling the trigger and encourages automaticity.  Experiencing any threat?  Shoot first and ask questions later.”).[/ref]  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.

Conclusion

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.