When white people find Black protesters scary, and white vigilantes heroic, where does that leave the legal concept of ‘reasonable belief’?
Last modified on Mon 22 Nov 2021 12.06 EST
Before sending a Kenosha, Wisconsin, jury to deliberate if Kyle Rittenhouse is a murderer, Judge Bruce Schroeder informed Rittenhouse’s hand-picked jury that his fate rests on the “privilege” of self-defense.
We now know what the jury decided.
Neither side disagreed that the 18-year-old intended to shoot Anthony M Huber, Joseph Rosenbaum and Gaige Grosskreutz. They don’t disagree that the Smith & Wesson M&P 15 is a dangerous weapon. However, under Wisconsin’s self-defense statutes, Rittenhouse was allowed to use deadly force, even if he provoked the 25 August attack, if he “reasonably believed” it was necessary to prevent his own death. Even though he traveled to the city and walked into a chaotic scene with a killing machine.
“A belief may be reasonable even though mistaken,” the jury instructions read. “In determining whether the defendant’s beliefs were reasonable, the standard is what a person of ordinate intelligence and prudence would have believed in the defendant’s position.”
Before former Kenosha alderman Kevin Mathewson summoned “patriots willing to take up arms and defend our city from the evil thugs”, no one else had died during the unrest in his city. Before Rittenhouse killed two people and wounded another, no one else had been shot. So, why is it reasonable to believe Rittenhouse needed a killing machine to protect himself against the “evil thugs” who were not shooting and killing people?
The “reasonable man” test derives from the description of a nondescript English character called the “man on the Clapham omnibus” – a reasonably educated, but average, hypothetical passenger on a London bus route whose thoughts and actions are defined as “ordinary”. The US supreme court case Graham v Connor enshrined this concept into law. The reason police are often acquitted of killing unarmed citizens is that they can argue that a “reasonable” police officer would have used deadly force, even if the officer turned out to be wrong and the victim was unarmed. When I first heard this principle, the first thing I thought was: “A white person came up with this.”
Because all of our opinions are shaped and colored by our experiences, “reasonable” is a subjective notion. Only white people’s perceptions are made into a reality that everyone else must abide by. Think about how much privilege one must have for their feelings to become an actual law that governs the actions of people everywhere.
While there is no doubt about the value of the white lives Rittenhouse snuffed out, there’s also no doubt that Rittenhouse was venturing into one of the scariest, most dangerous situations those white jurors could imagine: a Black Lives Matter protest. It is easy to see how, for Rittenhouse and jurors, the victims were part of the frightening mob of “evil thugs”.
In America, it is reasonable to believe that Black people are scary.
Understanding the innate fear of Blackness embedded in the American psyche does not require legal scholarship or a judge’s explanation. This belief shapes public perception, politics and the entire criminal justice system. And it is indeed a privilege only afforded to whiteness.
Researchers have found that Americans perceive Black men as larger, stronger and more threatening than white men the same size. A 2016 paper found that Black boys are perceived as older and “less innocent” by police officers. Black girls as young as five years old are viewed as older, less innocent and more aggressive than white girls. In real life, 35% of gang members are Black, but in Hollywood, 65% of the roles described as “gangsters” are played by Black actors.
The idea of the “scary Black person” manifests itself in every segment of the US criminal justice system. It’s why police are more likely to stop Black drivers, even though – according to the largest analysis of police data in the history of the world – white drivers are more likely to be in possession of illegal contraband. It’s why unarmed Black people are killed by cops at three times the rate of whites, in spite of the fact that most on-duty police fatalities are committed by white men. After controlling for factors that include education, weapon possession and prior criminal history, the US sentencing commission found that federal judges sentence Black men to prison terms that are, on average, 20% longer than white men with similar circumstances.
It’s why 5,000 people responded to Mathewson’s Facebook call-to-arms. It’s why police officer Rusten Sheskey was not charged with a crime for shooting Jacob Blake seven times in the back and the side. Blake’s pocketknife made Sheskey fear for his life, but Rittenhouse was allowed to waltz past officers from the same police department carrying a killing machine during chaotic protests. They did not see the gun-toting teenager as a threat. He is not Black. He was not scary.
That privileged loophole extends past the borders of Wisconsin. It is on display in the trial of the men who killed Ahmaud Arbery in Brunswick, Georgia. The impromptu lynch mob hunted Arbery down based on an 1863 law that allows citizens to arrest anyone based on “reasonable and probable grounds of suspicion”, referred to by Cornell professor Joseph Margulies as a “catching-fleeing-slave law”. This explains how a court could seat only one Black juror in a county that is 26.6% Black.
Knowing how this belief has shaped reality for every Black person in America explains why white people are the only group who doesn’t think “attention to the history of slavery and racism is good for society”. It is reasonable to assume that Black history is as scary as the people in it. It is reasonable to assume that police fear for their lives when they detain Black suspects. It is reasonable for conservatives to assume that Black voters will upset the political equilibrium if they are not systemically suppressed. And yes, it was reasonable to believe that Kyle Rittenhouse’s white jurors would grant him the privilege of self-defense.
The Rittenhouse verdict is proof that it is reasonable to believe that the fear of Black people can absolve a white person of any crime.
Michael Harriot is a writer and author of the upcoming book Black AF History: The Unwhitewashed Story of America.