Race, Neoliberalism, and Decision-Making

Analysts of racial politics theorize race and neoliberalism as co-constitutive organizing principles of contemporary governance. If neoliberalism is a historically contingent set of ideological commitments-cum-political practices—including the sweeping embrace of market values in political life, the privatization of formerly public goods, the deregulation of industries and capital flow, the elimination of social services, and the expansion of prisons, police, and the military (Harvey Reference Harvey2005; Prasad Reference Prasad2006; Wacquant Reference Wacquant2009)—race serves as its enabling condition, a constraint, and a determinant of its outcomes. Indeed, scholars have charted out the persistence of race-based inequalities under neoliberalism (Dawson Reference Dawson2011; Dawson and Francis, Reference Dawson and Francis2015); demonstrated the use of racial discourse to conceal uneven political-economic developments (Johnson Reference Johnson2011; Soss Reference Soss, Fording and Schram2011); described the effects of neoliberalism on intra-racial politics (Cohen Reference Cohen2012; Spence Reference Spence2015); and identified how racialized discourses engendered the “neoliberal turn,” in the first place (e.g., Gilens Reference Gilens2000).

Shared conceptual stakes aside, accounts of the relationships between race and neoliberalism vary in their methodological and empirical approaches, with some more conventional than others. In an essay on contemporary African American politics, Lester Spence (2012) contends that researchers typically pose neoliberalism as a catalog of political-economic arrangements and/or policy outcomes, while neglecting other sites of its expression and entanglement with race. Spence then maps a different line of inquiry: he suggests that research on race and neoliberalism “[move] away from public policy outputs and away from the types of discourse used to justify or engender support for these outcomes, and [toward] considering the technical means by which individuals, populations, institutions, and spaces are governed (and are self-governed)” (p. 145). In disclosing techniques of governance as additional sites in which neoliberalism might find articulation, Spence announces opportunities to supplement research on neoliberalism and racialized outcomes with accounts of how decision-makers interpret political conditions and craft alternatives.

Wendy Brown’s (Reference Brown2015) theorization of neoliberalism resonates with Spence’s proposition. According to Brown, neoliberalism permeates political life as a governing rationality that evaluates individual behaviors and social relations according to market principles. Neoliberal reason, as Brown terms it, transposes politics into an economic idiom, casting governance in terms of cost/risk management. In this way, political conditions become intelligible as problems insofar as they are costly or risky, and changes are deemed necessary inasmuch as they promise cost/risk mitigation. Other modes of valuation—like assessing the justness of a set of conditions or the equitability of some governing practice—are displaced by this cost/risk management frame.

My analysis draws on Brown’s theoretical specification in order to pursue Spence’s charge. Taking as my case the legislative deliberations over Stand Your Ground—wherein lawmakers explained the cause for its introduction, outlined the stakes of its statutory design, and provided justifications for its enactment—I offer an account of the co-constitution of race and neoliberal reason as a decision-making calculus. If governance fundamentally concerns the evaluation of political conditions, the specification of problems, and the development of changes—and if context-specific ideological arrangements, orders of value, and modes of reason shape what is thinkable, doable, and/or necessary—then, I am concerned with the logics that rendered Stand Your Ground viable as an alternative.

I begin the analysis below by tracing the introductory justifications for Stand Your Ground. In short, I argue that the proponents of Stand Your Ground rationalized the statute by framing it as a solution to the costs and risks imposed by criminal prosecution and civil action. Criminal cases and civil disputes, these legislators argued, entail material loss and social alienation for the accused: private citizens who are charged, detained, convicted, and/or sued lose time, money, and social cachet as they undergo the constitutive processes of criminal prosecution and civil action. For example, if a private citizen self-defensively kills another person, s/he will be apprehended and subjected to a criminal process. The person incurs costs at each phase of the process: s/he feels stigmatized due to the arrest, loses work income while being detained, must pay for legal defense and afford court fees, etc. Moreover, even if the person is ultimately cleared of charges, the costs that s/he incurred while undergoing the criminal process are not reversed—e.g., acquittal does not recover the material loss experienced during detainment—and the person might still be vulnerable to civil action. Hence, criminal and civil proceedings impose costs on their subjects. Stand Your Ground would preclude these cost impositions by granting its beneficiaries immunity from criminal prosecution and civil action. That the costs imposed by criminal prosecution and civil action—rather than, say, an assessment of the moral justness of extra-state violence—anchored a debate over the use of deadly force bespeaks neoliberal reason.

However, if neoliberal reason rendered Stand Your Ground conceivable, race compelled legislators to scrutinize its practicability. Opponents and ambivalent supporters of Stand Your Ground worried that the statute might deputize and victimize the ‘wrong people,’ if its intended beneficiaries were not explicitly pinpointed. Relying on the discursive juxtaposition of ‘law-abiding citizens’ and ‘street criminals’—where the former is figured as white and the latter as black (Hinton Reference Hinton2017; Murakawa Reference Murakawa2014; Weaver Reference Weaver2007)—legislators crafted the design of the statute during the amendment process to limit its legal protections to “lawful people.” They achieved this by statutorily inscribing the exclusive conditions under which Stand Your Ground should operate: when “law-abiding people… [possess] reasonable fear of imminent peril.” In justifying these vague stipulations, legislators posited “cop killers,” “gangs,” and “drug dealers” as street criminals whose putative threat would mark the proper bounds of the statute’s enforcement. Ultimately, through the amendment process, legislators baked race into the statute.

In mining the formative logic of Stand Your Ground, I contribute to the growing literature on race and neoliberalism by: 1) demonstrating the interplay between race and neoliberalism vis-à-vis decision-making, and 2) identifying how racial-neoliberal logics might work to legitimate ostensibly non-economic, material practices—e.g., racial violence.

The History, Implementation and Implications of Stand Your Ground

The extant research on Stand Your Ground is extensive. Researchers have identified its historical antecedents and examined its enduring significance. Caroline Light’s (Reference Light2017) sociolegal history of lethal self-defense in American political culture exemplifies the former, as she traces Stand Your Ground’s ideological precepts back to the post-emancipation era. Others, through myriad methods and approaches, analyze its racialized implementation, its legal implications, and its discursive influence. Notably, scholars have found links between race and case outcome in Stand Your Ground-related trials (namely that defendants who invoke Stand Your Ground are significantly less likely to be convicted if the victim is, or was, non-white) (Ackerman Reference Ackerman, Goodman, Gilbert, Arroyo-Johnson and Pagano2015; Wagner et al., Reference Wagner, Kim and Hagler2016). Legal analysts have argued that the law’s functions exceed its legal meaning, as it is often culturally or politically invoked in cases where it is legally inapplicable (Suk Reference Suk2015); and some even suggest that it shapes perceptions of authority—that is, who can enact violence against whom, and when—among civilians (Lave Reference Lave2013).

Still, while much ink has been spilled over the ideological precepts and political import of Stand Your Ground, little is known about its legislative history. Most researchers only speculate on how the law was crafted by assuming that its implementation is perfectly reflective of its design (Coker Reference Coker2014). Others undermine the complexity of the lawmaking process by wholly attributing the bill’s inception and passage to the National Rifle Association’s (NRA) interest group advocacy (Franks Reference Franks2014). Still others omit details of the statute’s design and enactment, even as they account for its historical roots (Light Reference Light2017). The only work that attempts to mine Stand Your Ground’s legislative history is Tampa Bay Times writer Ben Montgomery’s (Reference Montgomery2012) oft-cited account of the bill’s introduction in the Florida state legislature. But, Montgomery, too, undermines the complexity of lawmaking by simply linking the bill to a case mentioned twice during floor debates, leaving hours of discussion and other legislative records unexamined. Thus, the design and enactment of Stand Your Ground—its introduction into the legislature, debates over its statutory scheme, its amendments, and ultimate passage—have gone largely understudied.^{Footnote 6}

However, understanding the introduction, design, and enactment of Stand Your Ground is important for a few reasons. First, examinations of political decision-making provide insight into the conditions of possibility for policy and legal reforms, and supply analytic purchase on their ramifications. This is not to suggest that laws and policies perfectly reflect their original intentions—political decision-making almost always results in contradictory outcomes and unintended consequences—but that the logics behind laws and policies offer important interpretive insights. In the case of Stand Your Ground, most researchers, having only speculated on its formative logics, settle on one approach to interpreting the statute’s sociopolitical implications. Specifically, they interpret Stand Your Ground as a law that centers narrowly on providing immunity from criminal conviction in cases of violent self-defense. Quantitative studies of the racially disparate implementation of Stand Your Ground, for example, often posit ‘defendant conviction’ as the sole dependent variable of the analyses.^{Footnote 7} More recent work in legal studies expands this interpretive frame a bit to consider the effect of Stand Your Ground on pre-trial criminal procedures (though little empirical work has taken this up) (Cavazos Reference Cavazos2016).

A close look at the statute’s legislative history, though, points to ramifications of a different order. Whereas the existing work treats Stand Your Ground as a statute that renders its beneficiaries immune from criminal liability, thus legally inculpable—that is, protected against conviction—the originators of Stand Your Ground announced it as a statute that would render its beneficiaries immune from criminal prosecution as well as civil action, and thereby materially secured—that is, protected against the costs imposed by administrative and judicial proceedings, like attorney fees, court costs, and civil damages. In other words, while the existing work focuses on the preemption of imprisonment, the originators of the statute emphasized the preclusion of costs. This difference in emphasis is subtle but critical, because it begs a different set of empirical questions for assessing the sociopolitical implications of Stand Your Ground. For example, in addition to asking about the frequency at which violent actors avoid conviction via Stand Your Ground, researchers might also ask: Which of the costs commonly incurred by suspects of violent crime do claimants of Stand Your Ground circumvent? How often do they evade bail, attorney fees, court costs, and other expenses? Whose assets does Stand Your Ground protect? Does the statute prevent or otherwise affect interracial wrongful death or personal injury lawsuits? What impact does its invocation have on the assessment of civil damages? Prompted by the legislative history behind the statute, questions like these assume a different take on Stand Your Ground and press toward a fuller account of its ramifications.

Furthermore, understanding the design and enactment of Stand Your Ground is important given the process by which the statute propagated across states. After Florida passed Stand Your Ground, the NRA vowed to push similar statutes in state legislatures across the nation using Florida’s version as a template. In a 2005 interview, Wayne LaPierre, NRA Executive Vice President, described Florida’s enactment of Stand Your Ground as “the first step of a multi-state strategy” (Roig-Franzia Reference Roig-Franzia2005). In another interview, then-NRA lobbyist Marion Hammer confirmed their plan: “As [NRA] executive vice president Wayne LaPierre has said we are going to move across the nation from the red states to the blue states” (Christensen Reference Christensen2005). The American Legislative Exchange Council (ALEC) facilitated this project by creating model legislation based on Florida’s law, which enabled legislators elsewhere to introduce similar bills. And, as of spring 2018, more than thirty-three states have adopted some version of Stand Your Ground (Light Reference Light2017, p. 162).^{Footnote 8}

If legislators and interest groups modeled subsequently passed Stand Your Ground laws after Florida’s statute, understanding the rationale for and design of Florida’s statute is crucial for interpreting the law’s diffusion and understanding its enduring significance.^{Footnote 9} And, while analyses of Stand Your Ground’s historical antecedents might point to the ideas that prefigured its conception, they do not account for the particular logics deployed to substantiate the introduction, design, and enactment of the statute. This article intervenes on these gaps in the literature with a focused account of Stand Your Ground’s legislative history.

Empirical Approach

Again, my analysis centers on the Florida state legislature and its pioneering of Stand Your Ground. I trace the drafting of the statute, charting how legislators justified its introduction, design, and enactment. Legislative records from the State Archives of Florida—including committee meeting minutes, staff analyses and audio recordings of floor debates during the legislature’s 2005 Regular Session—serve as my primary sources of evidence.^{Footnote 10} Where appropriate, I supplement this data with news sources detailing local happenings in Florida (e.g., events that legislators cite while making claims). And, I intersperse my discussion with relevant legal cases to further animate my findings.

I parse the debates using a blend of policy process theories. First, I employ John Kingdon’s (Reference Kingdon2010) policy window framework to examine the conceptual origin of the Stand Your Ground bill. Kingdon’s framework enables me to identify what catalyzed the bill and how legislators justified its introduction. To further clarify the legislative debates, I track legislators’ uses of “causal stories”—that is, anecdotes used to substantiate political claims (Stone Reference Stone1989). And, after examining the bill’s introduction, I analyze the debates over its design using Anne Schneider and Helen Ingram’s (1993) policy and social construction framework, which posits intersubjective meaning-making as a key factor of legislative behavior and policy formulation. Their work—especially their discussion of the ‘beneficiaries’ and ‘losers’ of a policy—provides a method for interrogating the use of racial codes in legislative debates. Combined, these analytics support me in charting the formative logic behind the statute.

This research design has a few limitations. First, because this is a case study, my empirical findings regarding Stand Your Ground’s rationale are not necessarily generalizable, as debates over the statute in other states may have proceeded differently. Additionally, my project centers on the official legislative history of Stand Your Ground, and therefore does not fully account for the factors of legislative choice that are not reflected in the archive. Still, my aim is not to provide an exhaustive history of Stand Your Ground, nor is it to make a claim about how every state rationalized its version of the law. Instead, by charting the rationale for what became model legislation, I uncover the fundaments of a now-pervasive statute and offer a reconsideration of its material stakes. I also use this case to demonstrate how race and neoliberalism co-constitute a decision-making calculus.

Finally, a note on the organization of this article. The flow of legislative debates on Stand Your Ground was capricious. There were many fits and starts during committee meetings and floor debates; discussions were routinely interrupted by unrelated announcements; and repetition often stalled advancement from one point to the next. Therefore, rather than presenting my evidence in the order that it appears in the archive, I organize it according to key junctures—i.e., the introduction of the bill and the definition of the problem; the framing of Stand Your Ground as an alternative; challenges levied by opponents and ambivalent supporters; consequent amendments; and its ultimate passage—bringing greater coherence to the bill’s legislative history. My objective is not simply to showcase archival minutiae, but to mine the statute’s formative logic by synthesizing the records of its making.

Problem Definition: The Costs of Criminal Cases and Civil Disputes

Meteorologists remember 2004 as “The Year of Four Hurricanes.” In late fall of that year, a record four hurricanes successively pounded the Florida peninsula within the span of five weeks, wrecking the state. The storms killed at least 160 people and caused billions of dollars in property damage, thereby prompting then-governor Jeb Bush to declare a state of emergency. This devastation and Florida’s recovery spawned numerous issues that the state legislature would debate in its 2005 session, including funding for disaster relief, hazard mitigation in costal redevelopment efforts, contracts for storm-recovery financiers—and extra-state violence.

Reports of theft, burglary, and home invasion increased in the aftermath of the hurricanes. Many homeowners called the police alleging that “looters [were] plundering” their communities. However, due to the myriad issues competing for their attention, officers often responded to crime reports belatedly or not at all. Sluggish and non-responsive law enforcement intensified feelings of personal insecurity and induced dissatisfaction with criminal justice administration, prompting some Florida residents to take the law into their hands. For example, one news interviewee, annoyed with slow police response times and frustrated with theft, vowed to kill alleged looters himself, in lieu of waiting for officers: “Sons of bitches! They have no respect for people, even in times like these. If I see ‘em, I’ll shoot ‘em! They’re gone” (Van Sant Reference Van Sant2004). Having provoked anxieties over criminal activity, primed discontent with law enforcement, and compelled vigilantism, the 2004 hurricane season created a window of opportunity for Florida legislators to reevaluate the legal response to extra-state violence. Enter: Stand Your Ground.

Variously called Senate Bill 436, House Bill 249, the “deadly force bill,” and the “home protection act,” Stand Your Ground was first introduced by State Sen. Durell Peaden (R) in the Florida Senate Criminal Justice Committee on February 9^th, 2005. Peaden—a now-deceased staunch conservative and gun rights advocate who represented the majority-white, rural district in the northwestern-most part of Florida—fashioned Stand Your Ground as the solution to a double-faced problem. On one hand, Peaden problematized criminal prosecution, deeming it an arduous and costly process. He argued that being arrested and detained, hiring lawyers, and undergoing criminal trial constitutes a cumbersome ordeal that materially burdens self-defensive citizens. At the end of the Senate Criminal Justice Committee discussion on the bill, Senator Peaden offered the following anecdote to demonstrate this point:

Peaden was referring to the widely-publicized James Workman case. James and Kathryn Workman moved into a FEMA trailer outside of their home after Hurricane Ivan—one of the four hurricanes—severely damaged their home’s roof. One night, Kathryn Workman spotted a man (Rodney Cox) in their yard and thought he may be trying to break in. James Workman exited the trailer to confront him, the two had a physical altercation, and Workman shot and killed Cox. Workman was not arrested that night, but the Florida State Attorney’s Office launched an investigation into the case to determine if he would be charged. Ultimately, after a two-month investigation, no charges were entered (Montgomery Reference Montgomery2012).

The details of this case point to an important nuance of the legislative rationale for Stand Your Ground: criminal conviction was not the primary target-problem. Again, James Workman was never convicted of any crime. Therefore, by invoking his case, Peaden was not positing conviction as the object of debate. Instead, Peaden speculated on the prolonged legal and financial uncertainties that Workman faced in order to impugn the material burden of criminal prosecution. He criticized the three-month investigation and denounced the prospect of Workman paying for legal defense, thereby indicating that investigations and prosecutions cost their subjects time and money. His co-sponsors corroborated this framing, contending that Workman was in a state of “legal limbo”—that is, vexed by the threat of incarceration and financially uncertain—due to the “lengthy investigation.” In this way, the bill’s introductory justifications defined criminal prosecution as a costly, thus problematic legal process.

This material framing of criminal prosecution in Stand Your Ground’s legislative origin is further evidenced by the provisions of its preliminary statutory scheme. The original bill proffered the insulation of private citizens against criminal prosecution and civil action, i.e., arrest, detainment, prosecution, and civil suit. (Importantly, the bill defined “criminal prosecution” as “arresting, detaining in custody, and charging or prosecuting [via trial] the defendant.”^{Footnote 12}) It even stipulated that law enforcement agencies and state attorneys would be liable to compensate wrongfully arrested, detained, charged, and/or prosecuted subjects for “attorney’s fees, court costs…loss of income, and all [other] expenses incurred.”^{Footnote 13} In this way, a beneficiary of Stand Your Ground could completely elude legal action in the wake of a so-called justifiable homicide case and seek reimbursement from the state if s/he, say, missed work because s/he was wrongfully detained, according to the law. Though legislators later changed this reparative stipulation,^{Footnote 14} its inclusion among the original bill’s provisions indicates the primacy of the cost impositions of criminal prosecution in the statute’s formative logics.^{Footnote 15}

Moreover, as Peaden stressed the costs imposed by criminal prosecution, his co-sponsors reinforced this introductory framing by pointing to the material consequences of civil suits as well as the immaterial costs of legal proceedings, more broadly. Specifically, they argued that criminal prosecution is costly as well as stigmatizing—that it assigns social opprobrium to its subjects, even as it is financially burdensome—and that the costs imposed by criminal procedures are supplemented by those assessed in civil disputes. State Rep. Dennis Baxley, also a Republican and 2004 winner of the National Rifle Association’s “Defender of Freedom” award (Kroll Reference Kroll2012), underscored these points while introducing Stand Your Ground during the House Judiciary Committee meeting. He argued that citizens are too often “treated as the criminal in lengthy investigations of whether or not they’ll be charged for defending themselves,” and that this unwarranted treatment could affect one’s relationship to the law. He went on to declare that Stand Your Ground would prohibit “prosecution of victims for defending that which [they] have a constitutional and legal right to defend” and that it would preclude “civil lawsuits by criminals and relatives of criminals injured or killed while attacking law-abiding citizens.”^{Footnote 16}

Baxley’s justificatory remarks identified the power of criminal prosecution to designate categories of legal subjecthood: he suggested that prosecution can recast “citizens” as “criminals,” thereby legally disempowering them. Moreover, by pointing to “civil lawsuits” in the aftermath of violent self-defense cases (e.g., wrongful death and personal injury disputes), Baxley reiterated the material burden of legal processes—that is, he pointed to civil damages as additional cost impositions. Put differently, in the wake of committing defensive homicide, one might not only lose work income while being detained, have to pay for bail, and afford legal fees to mount a defense in criminal trial court, but s/he might also be sued for damages and incur shame as a result of the criminal process. And, importantly, these ramifications are possible irrespective of criminal trial outcomes—that is, one can lose income while being detained and is vulnerable to civil suit even if s/he is ultimately exonerated of any crime. In these ways, criminal cases and civil disputes entail material loss and social alienation for the accused.

To raise the stakes of this material framing of criminal prosecution and civil action, Stand Your Ground’s proponents linked the cost impositions of legal processes to the risks of criminal violence—the second face of the problem. If criminal cases and civil disputes variously burden private citizens, they reasoned, the prospect of such proceedings also produces risk for those who encounter imminent peril. Put differently, criminal and civil proceedings constitute a set of encumbrances that loom over citizens and converge on them in moments of life or death. When confronted by criminals, citizens must contemplate the cost of arrest, detainment, prosecution, trial, and civil liability before defending themselves—and that moment of contemplation leaves them vulnerable to violent victimization. Marion Hammer, then-NRA lobbyist and chief supporter of Stand Your Ground, first drew the connection between the cost of legal processes and imminent peril during the Senate Criminal Justice Committee hearing on the bill:

In Hammer’s formulation, the “victim” is a potentially self-defensive actor that is hindered by the threat of criminal procedures. She is compelled to consider potential investigatory and criminal trial questions “on the spur of the moment,” in the face of a violent criminal. And, given that she only has a “split second to decide” to defend herself, that moment of contemplation is endangering.

Senate Criminal Justice Committee members echoed Hammer’s concerns and corroborated them with personal accounts of procedure-related apprehension during encounters with criminality. Three committee members, for instance, noted that they had been victims of multiple burglaries, and each reported feeling hesitant to fend off alleged burglars due to anxieties around potential liabilities. In one case, the alleged burglar reportedly stood over the committee member with a pistol as he slept and exclaimed, “I’m going to kill you, you fat son of a bitch!”^{Footnote 18} Despite owning a weapon, however, the frightened senator hesitated to defend himself.

State Sen. Evelyn Lynn (R) went even further in describing her encounters with burglary. She reported that her home was burglarized on three occasions. Each time, upon the police’s arrival, she would vow to protect herself against future incidents: “‘I’m going to get a knife and keep it under my pillow; I’m going to get a gun.’” However, in reply, the responding officers cited the burden of criminal prosecution as a caution against self-defense: “Oh no, no, no, no, you don’t want to do that, because, if you hurt anybody, you will be liable, you will have to go to court, you will go to jail etc. etc. etc.”^{Footnote 19} This reportedly left Senator Lynn anxious about criminal proceedings, unsure about her right to defend, and therefore disempowered. Thus, like Hammer, she framed criminal procedures as looming encumbrances that impede potentially life-saving action.^{Footnote 20}

In short, Stand Your Ground was forged in response to a composite problem: the cost impositions of criminal prosecution and civil action, on one hand, and the risks they produce in the face of imminent peril, on the other. Criminal cases and civil disputes entail material loss and social alienation for the accused; private citizens face criminal violence. Fearing loss and alienation, private citizens hesitate to defend themselves when confronted by criminals, which increases their vulnerability to violent victimization. Senator Peaden articulates this even more plainly in his concluding remarks on the bill during the Senate Judiciary Committee hearing:

Here, the two cases represent the two sides of the double-faced problem that precipitated Stand Your Ground: the former case highlights the cost impositions of criminal prosecution, while the latter case attests to the threat of imminent peril. Together, they narrate the catalyzing problem.

Solution: Civil Immunity as Cost Preclusion

If criminal cases and civil suits pose cost impositions that loom over private citizens and impede life-saving action, proponents of Stand Your Ground sought to aid self-defense by preempting criminal prosecution and civil action. That is, they aimed to curb the prospective burdens of criminal procedures and civil disputes such that self-defensive actors could disregard legal costs in moments of “split-second” decision-making. They intended to create the conditions for citizens to defend themselves “on the spur of moment” by relieving them of the looming impositions that might induce hesitation—like the prospect of “[hiring] a lawyer for $20,000,” residing in “legal limbo” for “three or four months,” paying court costs, being sued by an assailant’s relatives, and/or otherwise being “treated [as] criminal.”

The bill proposed three changes in pursuit of this goal. First, it proposed the codification and expansion of the Castle Doctrine. As many have explained, the Castle Doctrine—a legal precedent, rooted in common law—has long advised that residents who are attacked in their homes are not obligated to retreat before defending themselves; they may use force, including deadly force, to fend off intruders. Proponents of Stand Your Ground aimed to enshrine this judicial precedent in Florida statute and broaden its provisions beyond the home, thereby making it an administrative rule that would be applicable for any person in any “place where he or she has a right to be.” Second, the bill would import the assumption that private citizens possess “reasonable fear of imminent peril” when using violence to fend off assailants, thus instructing law enforcement to presume innocence when responding to scenes of self-defense. And, lastly, the bill would proffer immunity against criminal prosecution and civil action (Catalfamo Reference Catalfamo2007).

Legally, these changes would insulate self-defensive actors against criminal procedures and civil disputes; effectively, they would secure self-defensive actors against the cost impositions of criminal and civil proceedings, thereby rendering them materially secured in the face of criminal violence. Free of the duty to retreat, backed by the presumption of innocence, and protected against criminal prosecution and civil action, self-defensive actors would not need to factor the looming cost impositions of arrest, detainment, trial, or civil suit into their decision-making, “on the spur of the moment.” When threatened, they could violently defend themselves without hesitation.

Racializing the Intended Beneficiaries and Victims of Stand Your Ground

After the introduction of Stand Your Ground, its opponents and ambivalent supporters began to scrutinize its potential impact. Two parallel questions anchored legislative concerns during the mark-up process: 1) If passed, who would Stand Your Ground deputize? and 2) Who would it victimize? Or, to draw on Schneider and Ingram’s (Reference Schneider and Ingram1993) method, who would be the ‘beneficiaries’ and ‘losers’ of Stand Your Ground? The bill’s original statutory scheme proposed changes that would preclude criminal prosecution and civil action in cases of violent self-defense, but the instructions on the applicability of its protections were vague. Therefore, some legislators worried that the statute might unwittingly legitimize criminal violence and undue victimization.

Rep. John “Jack” Seiler—a Democrat and representative of an urban, liberal district in southeastern Florida—was especially concerned with who Stand Your Ground might deputize. Shortly after the introduction of the bill during the House Judiciary Committee hearing, Seiler raised the following provocation:

While Seiler agreed with the proposed extension of immunity, he worried that Stand Your Ground might authorize criminality. In offering the possibility of emboldened criminals, Seiler prompted a debate about who Stand Your Ground would benefit.

Concerns regarding the intended beneficiaries of Stand Your Ground recurred throughout the mark-up process. During the Senate Criminal Justice Committee meeting, some members expressed worry that the bill would support criminals in “shooting one another in cars, then claiming they were immune,”^{Footnote 23} while others wanted to be sure that the bill would “protect the right people.”^{Footnote 24} Similarly, some House Judiciary Committee members argued that the bill could facilitate shootouts in the street and recommended that it specify that only “lawful [people] lawfully doing something” are entitled to its provisions.^{Footnote 25} Likewise, House Justice Council members suggested that the bill could potentially enable criminals to “wage war on the streets of Miami”^{Footnote 26}—and this pattern continued.

Notably, as the debates over the intended beneficiaries of Stand Your Ground ensued, criminality began to take shape in legislators’ remarks. That is, legislators invoked specific tropes to further emphasize the potential consequences of the bill’s vagueness. Consider Rep. Seiler’s repeated references to criminals qua “gangs” during the House Judiciary Committee meeting. Take special note of how he gradually particularizes the reference:

Here, Rep. Seiler insists that the vagueness of the bill might not only legitimize criminality, generally defined, but specifically gang violence in downtown Miami on Biscayne Boulevard. In other words, Seiler challenged the practicability of the statute by posing the idea of a particular type of criminal, a gang member, acting as one of its beneficiaries.

Seiler’s remarks constitute one instance of a larger pattern in the drafting process: legislators drew on tropes of ‘street crime’ to make their claims. ‘Street crime,’ as political historians point out, is a racialized category of criminality invoked by political elites to justify criminal justice policies. Having gained traction amid the conservative backlash to the Civil Rights Movement, the idea of “crime in the streets” or examples of the “street criminal” operate in sites of decision-making as racial codes that appeal to the fear of black communities (Hinton Reference Hinton2017; Mendelberg Reference Mendelberg2001; Murakawa Reference Murakawa2014; Weaver Reference Weaver2007). If “gang violence” is a sub-category of street crime, Seiler’s invocations of “gangs” operate as racial codes that refer to black communities. Indeed, the final iteration of his concern—not just criminals, not just gangs, but gangs in Downtown Miami on Biscayne Boulevard—further indicates his appeal to race-specific anxieties over crime, as perceptions of and responses to crime in Miami are notoriously racialized (Alpert et al., Reference Alpert, Dunham and Smith2007).

In keeping with Seiler’s talk of “gangs,” legislators with similar concerns about the beneficiaries of Stand Your Ground employed comparable tropes of street crime—namely “drug dealers”^{Footnote 28} and “cop killers.”^{Footnote 29} That is, they queried the bill’s statutory design by suggesting that its lack of specification would render “drug dealers” and “cop killers” technically entitled to its legal provisions. Like “gangs,” these tropes circulate as racial codes used to substantiate racialized political choices. In the drafting of Stand Your Ground, legislators invoked these tropes to suggest constraints on the applicability of the statute.

If the decades-long circulation of “gang,” “drug dealer” and “cop killer” as racial tropes is not enough to evidence the racial underpinnings of this debate, then one might look to the fact of their grouping for confirmation: assuming that these legislative concerns are not random, what makes “gang,” “cop killer,” and “drug dealer” coherent as an assembly of tropes? What common feature makes these sorts of criminality pertinent to this debate? They do not all signify violence: neither drug possession and distribution nor gang affiliation necessarily involve violence. And, they arguably are not all particularly serious offences—in fact, the deployment of “gangs” as a category of criminality is questionable, because gang affiliation itself is not necessarily a crime.^{Footnote 30} Instead, they find intelligibility via race: what they share is embroilment in a racialized discourse of crime, which codes black subjects as “street criminals” and treats them as problems for governance. Hence, insofar as legislators announced concerns about Stand Your Ground potentially deputizing “gangs,” “drug dealers,” and “cop killers,” they were actually concerned that black subjects might become its beneficiaries.

Following the debate over the intended beneficiaries of Stand Your Ground, legislators held a similar discussion regarding its potential victims. The bill imported the assumption that self-defensive actors possess “reasonable fear of imminent peril,” and some worried that this vague stipulation might legitimate unwarranted targeting. Rep. Susan Bucher’s (D) remarks during the House floor debate on the bill capture this concern:

Attempting to balance legislators’ shared contempt for street criminals with their investment in public safety, Bucher pointed to the “reasonable fear” clause as language that might be exploited for baseless victimization. Others corroborated Bucher’s remarks, noting that this stipulation would hinge on private citizens’ idiosyncratic feelings and produce lethal consequences.^{Footnote 32}

Legislators further specified their concerns about who Stand Your Ground would victimize by offering hypotheticals that demonstrated the statute’s potential to enable unwarranted violence. For example, Rep. Shelley Vana (D) offered the following scenario to question the bill’s prospective implementation:

Rep. Vana’s sarcasm indicated the potential for wrongful victimization under Stand Your Ground: here, the ambiguity of “reasonable fear” would allow the shooting of an unthreatening newspaper delivery person. Many legislators reiterated this concern by offering similar scenarios—e.g., What if one purports being afraid of a Halloween trick-or-treater? Or the Avon Lady? Or even a canvassing state lawmaker? Could that person shoot with impunity, under Stand Your Ground?

Despite these suggestions, however, proponents of Stand Your Ground maintained that the “reasonable fear” stipulation was instructive enough. They argued that there are certain situations in which fear did not hinge on an idiosyncratic belief, but was a sensible reaction to putatively dangerous people, and that Stand Your Ground was intended for those situations. In other words, clarifying “reasonable fear of imminent peril” was unnecessary, because the definition of “imminent peril” is axiomatic. Rep. Donald Brown (R) gestured toward this point during the House Floor debate:

In Brown’s view, legislators need not invent or find ‘Boogeymen’—that is, criminal subjects that warrant lethal violence—by way of conjecture, because real ‘Boogeymen’ are conspicuous: you know them when you see them, and you know what to do with them.

Later during the same debate, Rep. Jeff Kottkamp (R) restated this point, in no uncertain terms:

Here, Rep. Kottkamp recirculates the street criminal trope, this time as the intended victim of Stand Your Ground. The statute, according to him, would target the criminals who inhabit the “bad part of town.” (One wonders if the “bad” parts of town that concern Kottkamp overlap with the areas of ‘gang violence in downtown Miami on Biscayne Boulevard’ that concern Seiler.)

If Reps. Seiler, Kottkamp, and others invoked race implicitly via tropes of street criminality during the mark-up process, two concluding remarks made by black women representatives during the final floor debate rendered race explicit. Just before the House voted on the bill, Rep. Joyce Cusack (D) exposed the racial underpinnings of the debate, while basing her disapproval of Stand Your Ground on her concerns about who it would victimize:

Rep. Cusack, a black person, raised the possibility of her black nephew being perceived as a threat (and therefore a target) under Stand Your Ground. In so doing, she unmasked the racialization of the bill’s intended victims.

Just after Cusack’s remarks, Rep. Priscilla Taylor (D) switched her position on the bill and expounded on how race might underwrite victimization:

According to Rep. Taylor, markers of race could become determinants of victimization under Stand Your Ground: one might interpret physical difference as threat and act accordingly. These remarks punctuated the drafting process by making plain its racial underpinnings.

In summary, twin concerns about who Stand Your Ground might benefit and victimize animated its drafting. Legislators drew on tropes of street criminality—e.g., “gangs,” “drug dealers,” “cop killers,” and “violent criminals” in the “bad part of town”—to insist that black subjects should not be the beneficiaries of Stand Your Ground but were its intended victims. Though the legislators variously cloaked race throughout the mark-up process, the concluding remarks of Representatives Cusack and Taylor exposed the racialization of the debates. Their unfortunate prescience, however, did not impact the legislative action being taken.

Amendments: A Clean Hands Doctrine

Proponents of Stand Your Ground responded to the racialized concerns regarding its intended beneficiaries and victims in two ways. First, regarding its intended victims, they refused to amend the “reasonable fear of imminent peril” stipulation. As I discussed above, they maintained that this stipulation was sufficient because “imminent peril” is axiomatic—e.g., anyone who is familiar with the “gangs” that inhabit the “bad parts of town” knows imminent peril. Accordingly, proponents of the statute worked to defeat all amendments that would have clarified or deleted the “reasonable fear” stipulation.

Second, regarding its intended beneficiaries, proponents of Stand Your Ground proposed an amendment that would exclude “[those] engaged in unlawful activity” from its provisions. Senator Rod Smith (D) first offered and explained this amendment during the Senate Criminal Justice Committee hearing on the bill:

With this amendment, Smith aimed to mark the proper bounds of the statute’s legal protections by circumscribing its intended beneficiaries: only “law-abiding citizens” would be entitled to its provisions. This way, “drug dealers” (as well as “cop killers” and “gangs”) could not lay claim its protections. Smith’s amendment passed unanimously during the Senate Criminal Justice Committee meeting (and a similar amendment was passed on the companion bill in the House).

If race animated the debates over who Stand Your Ground would benefit and victimize, the design choices that responded to this debate baked race into its statutory scheme. By maintaining the vague “reasonable fear” stipulation, legislators depended on race to clarify that which is sensibly threatening; and, by officially excluding people “engaged in unlawful activity” from its provisions, legislators sought to bar black subjects (variously coded) from its provisions.