Weaponized Racial Fear

Abstract

Irrational fear of people of color has shaped the American criminal justice system since the nation’s colonial beginnings. But while scholars have examined the impacts of racial bias on official institutional actors – police, prosecutors, judges, and juries – comparatively little has been written about civilian abuse of law enforcement to weaponize their own racial fears. This Article presents the first comprehensive discussion of civilian manipulation of the criminal justice system to enforce racial bias and the state’s acquiescence to this bias-motivated abuse. The Article proceeds in five parts. First, it traces the legacy of racial fear from slavery and Jim Crow to mass incarceration and current corrosive biases against people of color who step out of their “iconic ghettos” into “white spaces.” Second, it explores the role of implicit bias in perpetuating racial fear and the limits of bias retraining programs. Third, it examines the abuse of emergency response systems by the racially fearful, including the motivations for and tragic consequences of calling 911 for “living while black.” Fourth, the Article confronts the “weapon” in this scenario: the armed police officer. It examines the near-absolute immunity for officer violence against people of color, as well as the growing immunity for civilian vigilantes in so-called “stand your ground jurisdictions,” both of which encourage preventable violent confrontations initiated by civilian racial fear. Fifth, the Article surveys existing legislative schemes to reduce 911 abuse and presents an innovative model statute that balances the need for access to emergency response systems with a desire to deter racially-biased behavior. Borrowing from recent legislative efforts to reduce frivolous lawsuits aimed at chilling free speech and silencing public critics, the model statute attempts to deter and punish clearly frivolous abuses while neither chilling participation from innocent civilians nor demanding civilian expertise of suspicious criminal activity. In doing so, the Article encourages both less police responsiveness to non-emergency calls and more aggressive enforcement against invitations to criminalize on the basis of race.