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Cultural Cognition and the Trayvon Martin Case

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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14 Responses

  1. Brett Bellmore says:

    Regarding the 2nd post, he’s right, the point of “stand your ground” laws wasn’t to change the law, “stand your ground” has been the law of the land, across most of the land, throughout our history.

    But neither was the point to agitate and inflame. Rather, it was to prevent the law from being changed by a political elite who shared a different culture, and who were proceeding to impose it on the populace in the form of “duty to retreat” rules, without permitting the populace any say in the matter.

  2. nidefatt says:

    I guess I see all of this totally differently in that I can’t accept anything but the stand-your-ground law. To me, what’s disturbing is the total lack of respect for the danger of gun ownership. Generally, being allowed to carry a firearm comes with extra baggage- you essentially take any blame for anything that happens where you took on the risk- in other words, you can’t strap on a gat and walk into a club and start throwing gang signs- if you are attacked and then you shoot that person- you caused it. You go to jail. The bizarre tendency you see in cases like this one is where the police take sides- well, we don’t consider this dead person as innocent as this person, because well, he’s black and became violent when harrassed, or in another case I know too well, during his attempt to flee the gun shots he ran down the shooter’s wife. The police and prosecutor pick the most sympathetic victim and go with that, rather than exploring the situation and making a logical determination of who takes the blame- which in any situation involving a person carrying a firearm- should be on the carrier except where he can show he truly was acting in self-defense.

    To me, if you have a gun, you bear the burden of proving you used it properly and did not seek out the situation in which you used it. If someone else started confronting you, did you at least try to talk your way out? Did you warn them that you have a gun? Or did you just blast away like a psychopath?

    I can’t imagine a storyline in which Zimmerman doesn’t belong in prison. Maybe not as a murderer, but as an incompetent gun owner he owes society a few years. Period.

  3. Shag from Brookline says:

    Brett’s view of self-defense doesn’t stand up. FL’s stand your ground law did change self-defense law in that state. Perhaps Brett has seen too many cowboy movies featuring gun fights, where each gun-totter stands his ground. At least that Hollywood gun fight was fairer since each gun-totter was armed with a gun. But Trayvon’s Skittles and cold drink were a tad, a great tad, short of a gun, to offset Zimmerman’s cannon. Imagine if every man, woman and child (over, say, 14) were carrying and in a stand your ground venue shot at each other as they stand their respective ground. But I think Brett prefers the odds that he be the only one carrying, especially with the anticipated demographic changes that he seems to fear.

  4. Brett Bellmore says:

    Changed it back, Shag. “Duty to retreat” was never statutory law in Florida, it was imposed by judges on a state with a “stand your ground” tradition, and the legislature simply got around to putting things back the way they were.

  5. Shag from Brookline says:

    Perhaps Brett can provide a cite for FL’s “‘stand your ground’ tradition” prior to his suggested judicial impositions. Brett apparently has problems with common law that had long served this nation with its importation from England during colonial days and since. (Of course, much of statutory law has incorporated features of common law, as common law had variations among the the states. Uniform Laws were presented by legal and other scholars for consideration by the various states, many of which would eventually adopt Uniform Laws – although sometimes with variations. In this manner, there developed a sense of uniformity throughout the states on many matters of common interest, commercial and otherwise, by means of states rights compliance, not imposition by the central government.)

  6. Frank says:

    I found this intriguing: “we’ll never know what happened, because we—-the members of our culturally pluralistic society-—have radically different understandings of what a case like this means.”

    I wonder if this would be true for Kahan even if, say, a videotape was found that recorded every aspect of the event? Also, are there refutations or counters to each of the facts listed here:
    http://thinkprogress.org/justice/2012/03/18/446768/what-everyone-should-know-about-about-trayvon-martin-1995-2012/?mobile=nc

    It seems that the word “know” as used by Kahan above might be normatively loaded, or legally inflected. In my admin law classes, we talk about the prevalence of incidents where perhaps any description is normatively inflected. That seems less a consequence of motivated cognition than of the slipperiness of language.

    Extreme versions of “Stand Your Ground” seem to lead to “he said/he said” confrontations, where one of the “he’s” is dead and can’t tell his side of the story. As Emily Bazelon noted on Slate, one of the cases involved a homeless person being shot at a Friendly’s after accosting a family for money. We’ll never get to hear his account of the incident, or Trayvon’s, or those of several people mentioned in this article:
    http://newsone.com/1938145/black-men-killed-by-white-people/

    Maryam Monalisa Gharavi wrote an interesting comparison of recent killings, along the allegorical storylines media routinely use to frame them: (http://thenewinquiry.com/blogs/southsouth/from-empty-signifiers-to-a-hoodie-is-like-a-sign/):

    “Things (Just) Fell Apart at precisely the moment when The Watchmen (battling aggravated emotional impairment) and People Out of Place (inescapably encoded with indexes of their difference—melanin, robes, headgear, whatever) encountered each other. . . . Yet in each case it was The Watchmen that pursued the objects out of place and lived to recount narratives of fear, grief, troubled minds, amnesia, even moral failings. The crucial elements of these encounters is that The Watchmen survived with their interiority (and by extension, humanity) intact . . . Meanwhile a hush fell over the demise of the People Out of Place. At least their will to violence was extinguished, the apologia read.”

    I also think that Patricia Williams interview on the topic was deeply insightful: http://www.wnyc.org/shows/bl/2012/mar/23/trayvon-martin-case-perception-and-law/
    The host asks her whether it should make any difference under law if Martin objectively (if unreasonably) believed that, generally, African American youth were a menace. Her response is deeply considered.

    My worry is that a Haidt-ian project that urges awareness of the diversity of motivated cognitions about such an incident can rather quickly deteriorate into a form of relativism (masquerading as considered and evenhanded statesmanship). I’d be more comfortable accepting motivated cognition views on cases like this if the movement delineated the limits of its theory—that is, where it described a case in which, despite divergent, culturally conditioned responses, one side in the “culture war” was obviously wrong. The media finally took this step with “Birtherism:”
    http://www.onthemedia.org/2012/apr/06/president-obama-press-critic/

    Finally, I hope that the Motivated Cognitions project might consider the effects of culturally motivated “othering” directed at minority populations. Consider each of the quotes on pp. 14-15 here:
    http://www.saalt.org/filestore/Reports/In%20Our%20Own%20Words%20Web%20FINAL.pdf
    e.g.:
    “I work [for] construction companies as a day laborer. I was questioned by ICE and NYPD several times, while waiting to be hired at the corner of the street, because of my appearance. ”
    – South Asian restaurant worker focus group participant

    Are there ever “forbidden grounds” for stopping and questioning someone? When we hear of many stories like this, do we always commit to “rise above it all” and consider the perspective of the policemen and the restaurant worker in as empathetic and open a way as possible? When does that presumption give way to concerns about racial animus? When are statistics extreme enough to persuade us that, perhaps, racial discrimination is driving excess surveillance and violence directed at minority populations? Certainly in any given case the psychology of “motivated cognition” research may give us balance and subtle understanding. But that careful consideration of the “trees” in turn needs to be balanced by sociological and historical views of the “forest,” the larger context. Otherwise, the methodological individualism of the motivated cognition approach may forever miss the types of compelling holistic accounts of our justice system offered by Michelle Alexander, Loic Wacquant (http://loicwacquant.net/assets/Papers/CLASSRACEHYPERINCARCERATION-pub.pdf), and Bernard Harcourt.

  7. Brett Bellmore says:

    Shag, see No Duty to Retreat, a not particularly sympathetic history of stand your ground.

    Florida common law long supported the concept of standing one’s ground, it was only in the mid 20th century that the Florida courts began imposing a duty to retreat on a state which had long rejected it. Changing the common law into something the public didn’t agree with.

    The common law isn’t supposed to be a tool for judges to impose their preferences on the general public.

  8. Shag from Brookline says:

    Brett’s linking to a fairly recent book does not constitute a cite to his claim that:

    “Florida common law long supported the concept of standing one’s ground, it was only in the mid 20th century that the Florida courts began imposing a duty to retreat on a state which had long rejected it.”

    On my next law library trip, I’ll check FL c/l on self-defense, including dates of any changes prior to the statutory change resulting in “stand your ground.”

    As to what the public agrees or doesn’t agree with, keep in mind that FL had long held slavery to be legal. Shall we try to get into the heads of the general public in FL that resulted in this statute, demographically speaking?

    Brett’s suggestion that judges change c/l to impose their preferences demonstrates he knows very little about the development and history of c/l.

  9. Brett Bellmore says:

    Your suggestion that they don’t occasionally do so is laughable.

  10. Dan Kahan says:

    Frank’s “worry is that a Haidt-ian project that urges awareness of the diversity of motivated cognitions about such an incident can rather quickly deteriorate into a form of relativism (masquerading as considered and evenhanded statesmanship)” strikes me as a good worry. I myself will try to be mindful (fortunately, I can’t even masquerade as a statesman, so no risk of fooling anyone).

    DH: *Your* problem is that you just are stuck on regular cultural cognition & have not yet gone over to cultural *meta*cognition

  11. Shag from Brookline says:

    My trip to my law library today resulted in locating Zachary L. Weaver’s “Florida’s ‘Stand Your Ground’ Law: The Actual Effects and the Need for Clarification,” 63 U. Miami L. Rev. 395 (2008-9). Mr. Weaver was a J.D. candidate at the time.

    I don’t know if Brett has access to Hein Online to obtain this article or whether he would read it if he did. One thing very clear from the article is that the Stand Your Ground Law does not constitute or restore what once was the law of self-defense in civilized countries, whether under c/l or statutory law. While this article was published 4 years ago, it includes some results of the Law since its enactment in April of 2005. More results have come in over the past 4 years. I imagine a new TV crime series in the nature of “Law & Order” without the “Order.”

  12. Dan Kahan says:

    Shag & Brett:
    My research indicates that Florida was not a “no retreat” state before it enacted “stand your ground.” But “no retreat” is the majority U.S. rule & has been since early last century. Many — possibly most– of the states that have enacted “stand your ground” laws were already “true man” (the 19th/early 20th century label) states already. Brett says that the laws were enacted to prevent judicial abrogation — I don’t think that is a plausible explanation (it would actually be unconstitutional to change the law and apply it retroactively to a criminal case). The “stand your ground” campaign was designed to “make a statement.” History of “true man” doctrine is discussed in the “Secret Ambition of Deterrence” article that I list as reference in my “part 2″ post.
    –dan kahan

  13. Shag from Brookline says:

    It should be recognized that FL’s quite detailed Stand Your Ground law goes well beyond “true man” laws of the 19th/early 20th century.

  14. Brewhaha says:

    The fact that someone would spend a few irreplaceable hours of their life so they could post a comment on a web site speaks volumes as to their waste of space. Darn, I just realized I am just as much a loser.

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