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From Self-Defense to Self-Deputization: Defensive Gun Use and the Performance of Reasonable Belief

By on January 7, 2022 Categories: , , ,

 In the past decade, three high-profile trials have revolved around a seemingly straightforward question: can a person take a gun to a location where they are reasonably sure that there will be volatility and even violence, introduce that firearm into a fight, shoot someone in the course of that fight, and then claim self-defense because they were afraid that the other person in the fight would take that gun and use it against the gun owner? In two of those three cases, the answer is “yes”—a self-defense claim led to legal success for Kyle Rittenhouse in 2021 and for George Zimmerman before him, in 2013. In a third case, the ultimate answer was “no,” but only after a lengthy and not altogether reassuring sojourn through the legal system. Travis McMichael, his father, Gregory McMichael, and William “Roddie” Bryan were all convicted of murder in the shooting death of Ahmaud Arbery in November 2021, but nearly evaded arrest and prosecution altogether; the McMichaels were only arrested following the release of damning video footage of the shooting and subsequent public uproar, 74 days after the murder. Bryan wasn’t arrested until 89 days after the shooting.

The success of self-defense claims in Rittenhouse’s and Zimmerman’s trials, and the need for extensive, irrefutable video evidence in order to even arrest the McMichaels and Bryan, point to larger questions about how self-defense is viewed within the text of the law, and how it is actually practicable in everyday life. Performance studies, an academic discipline that uses performance as a lens through which to study human behavior, offers a new way to approach the old question of how facially neutral laws transform when they are lived and enforced by actual humans. Performance is a practice of repetition, whether it is on stage, at a political rally, or in one’s own home; like the law, it gains meaning and currency through iteration. Unlike the law, however, performance is always generated through the body and the event rather than the text.  When used to study the law or legal concepts, this emphasis on lived, embodied practices can offer one method for disentangling how the ambiguity present in the language of the law—particularly an emphasis on a “reasonable belief” that one’s life or property are in danger—means that custom, tradition, and an iterative version of common sense become valid bases for interpreting constitutional rights, including the right to life and the right to bear arms. In a country saturated with firearms and with a long history of anti-Black attitudes, entertainment, and state-sanctioned violence, this calculus basically ensures that self-defense will remain primarily the prerogative of men who are protecting the status quo, and that Black people will remain at greater danger of being perceived as a “reasonable” threat.

Self-defense, as a legal concept, is inherently theatrical. Although the precise wording varies by state and federal statute, we can use the instructions given to members of the jury in Rittenhouse’s recent trial as a general paradigm of the legal requirements of a self-defense claim. A claim of self-defense must meet all the following requirements in order to be considered lawful: 1) “force is used for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his person by the other person”; 2) “the person uses only the amount of force that he reasonably believes…necessary to prevent or terminate the interference”; and 3) “the person may not intentionally use force which is intended or likely to cause death unless he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” Embedded in these jury instructions, and in the text of the Wisconsin statute that it cites, is the abstract concept of “reasonableness.” Over and over, the jury is reminded to adjudicate claims of self-defense from the perspective of “a person of ordinary intelligence and prudence” and to consider what that person “would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense.” This requirement draws primarily on two elements of theatricality in order to be legible: first, it centers audience interpretations of the allegedly defensive acts; second, it encourages members of the jury (or, prior to trial, it asks police officers or prosecutors) to imaginatively emplot themselves in the shooter’s mind at the moment they killed or injured someone by firing their gun at them.

Theatricality, of course, is often associated with the theatre, but it is not limited to that arena. Rather, its power extends beyond the realm of the stage and shapes our everyday lives. Theatricality is a transformative, yet quotidian, process that, as performance scholar Josette Féral explains, is “the result of two simultaneous cleavages: between everyday space and representational space” and “between reality and fiction.”[1] That is, theatricality is both what allows audiences to suspend their disbelief and enjoy a performance at face value and what allows those same audiences to identify the artifice that occludes the mechanics that produce the theatrical magic. In everyday life, theatricality can result in a dual consciousness: a recognition that, even as we go about our daily activities, we overcode them with meaning. We recognize that we “perform” differently with our boss than with our spouse and that, while that may indeed be playing a social role, it is not not reality. Comments offered by the Justices in the recent oral argument in New York State Rifle & Pistol Association v. Bruen demonstrate that we already understand public carry as theatrical: Justice Barrett wanted to ensure, for example, that striking down New York’s permitting law would not mean that people could attend New Year’s Eve Festivities in Times Square while armed. While there are logistical reasons to prohibit firearms during those events, surely the right to self-defense does not end on New Year’s Eve nor at the boundaries of Times Square? This suggests that, even for people inclined toward expansive public carry gun rights, there is an inherent understanding that both the everyday and the representational space of Times Square on New Year’s Eve is different. A gun in Times Square communicates—it acts—differently than a gun in rural Maine.

While theatricality helps disentangle the ways that the audience of a gun display might interpret such an act, it also explicates the ways that a gun owner might engage with their firearm, and other people, in a public space. This is similar to the ways that gun owners talk about “living the gun life” of carrying in public. Concealed carry training programs often encourage gun carriers to remain in a mental state of constant surveillance and awareness of their surroundings so that they can neutralize a threat at any moment. Dan Baum, a writer and gun owner who later decided to stop publicly carrying his weapon, suggests that having a gun on his hip “made [his] days a lot more dramatic.” He describes the feeling of constant surveillance and knowledge he could kill at any moment as both a reality and a fiction: “Suddenly, I’m dangerous. I’m an action figure. I bear a lethal secret into every social encounter. I have to remind myself occasionally that my gun is not a prop, a political statement, or a rhetorical device, but an instrument designed to blow a ragged channel through a human being.” Much like an actor, he functions both in everyday space and representational space, balancing the responsibility of carrying a gun with the fanciful and aesthetic experience of being “a little sexier as [I] make [myself] more dangerous.”

Another performance concept that illuminates how gun owners interact with their gun and the public spaces they take it into is restored behavior. Performance scholar Richard Schechner defines restored behavior as “performed actions that people train for and rehearse.”[2] Schechner explains that, while this rehearsal can be seen more easily in ritual and theatre, it can also be identified in everyday life: that is, we rehearse our identities everyday by remixing and performing that which we have seen, and even sensed, before. We learn by repetition, and that repetition soon begins to feel natural, though it remains, essentially, a performance. While describing behavior as “performance” usually signals a devaluation, the concept of restored behavior makes it clear that everything we do—all of our embodied actions—are mimetically recreating other behaviors we have previously witnessed or in which we have participated. This includes things like how we move through a space, how we hold our bodied in interactions with other people, and how we assess our safety or vulnerability in a space. Gun owners, as they train for and imagine themselves in defensive situations, imaginatively emplace themselves in a role—the good guy with a gun. By so doing, they necessarily imagine others as the threat in need of neutralization and rehearse scenarios in which they might righteously wield a weapon. Restored behavior offers a potential way of understanding how gun owners might imagine and, in split-second situations, enact the violence they have rehearsed for—and how imagining oneself as deputized to enact social control might even encourage such violence.

When an act of alleged self-defense escalates to the point that it is adjudicated by the wider public—whether through repeated viewings of videos that circulate on social media and television or the more formal legal processes of arrest, dentition, and trial, which are then disseminated through those same channels—the question of audience immediately becomes a central concern. The audience for an alleged act of defensive violence can really be divided into multiple audiences, two that are constituted at the time of the violence and two that are constituted after the fact. The former category consists of the witnesses who saw the event and can offer eyewitness testimony (sometimes from the receiving end of the violence) and, perhaps most compellingly, the shooter themselves as audience to the victim’s actions that allegedly caused the defensive violence. In the latter category are the post-event audience of the wider public (who become audience members either through viewing video evidence of the event or through descriptions that circulate in the media) and the carceral and legal audiences (the police, lawyers, judges, and jury members who officially assess the event). What each of these audience members experiences as they spectate the allegedly defensive event (in real time or through later reproductions of the event) forms some of their measure of what is a “reasonable” defensive response to alleged provocation.

Audience members do not, however, come to an event as empty slates. Instead, they view incidents from the perspective of “a member of an already constituted interpretive community” and bring with them “a horizon of expectations shaped by pre-performance elements.”[3] If we think of the act of allegedly defensive violence as the “performance” in this construction of audience foreknowledge, then everyone who witnesses that event will see it with some preconceived ideas about self-defense, guns, and threat already in place. Indeed, the meaning of the defensive violence is produced at the nexus of these preconceived notions and the event itself. In the three high-profile occurrences of allegedly defensive violence that opened this essay, and in many instances of defensive violence, attitudes and biases toward racial difference played outsized roles in the foreknowledge that various audience members brought to their spectating of the event after the fact. Audience members may, for example, come to a video or description of an act of allegedly defensive violence with clear ideas of what a “good guy with a gun” would look like. As I have argued elsewhere, the ongoing anti-Blackness that is present in many facets of our everyday lives in the United States—what Christina Sharpe has identified as the “total climate” of anti-Blackness within which we all exist[4]—means that white men with guns are more often identified as “good guys” than Black men with guns are. It also means that Black men are more often viewed as a reasonable threat that requires lethal violence in response, even if they are unarmed.[5]

The fact that defensive gun use seems more “natural” when enacted by some people and in some places is a product of theatricality—those bodies fit the “role” we expect of gun owners, and those spaces can be policed for those who belong and those who don’t. In all three aforementioned high-profile cases of allegedly defensive gun use, the men who fired the guns argued that they were the “good guys” with guns in a volatile situation, and that their introduction of guns into the mix was the only thing that saved their lives. During the trial of Ahmaud Arbery’s killers, defense lawyer Frank Hogue argued that his client, Gregory McMichael, was “in abject fear that he [was] about to witness his only son possibly shot and killed before his very eyes.” Kyle Rittenhouse, testifying in his own trial for murder, described his fear for his safety, collapsing in tears at the memory. Later, in closing arguments, Rittenhouse’s lawyer claimed, “when my client shot Joseph Rosenbaum, he feared for his life.”  And while George Zimmerman did not testify in his own behalf, a juror interviewed after his acquittal recognized the script he was following, saying that she had “no doubt” that Zimmerman “feared for his life” when he killed seventeen-year-old Trayvon Martin in 2012. The repetition of this “script”—that the only person with a gun was, in fact, the one who was most at danger of being mortally wounded—is one way in which the theatricality of repetition starts to actually produce reality. Audiences for future instances of defensive violence see people repeatedly claiming they “feared for their life” in a situation escalated by their own introduction of a gun into the situation and it starts to seem reasonable to fear an unarmed person who is reacting in their own defense to an armed assailant. When called upon to perform their own adjudication, whether in the court of public opinion or in a proper court of law, they now have an expanded “horizon of expectations” for what is appropriate defensive behavior.

Another place that an audience’s pre-formed opinions come in is in determining what is “suspicious” or “threatening” behavior. Often, this assessment comes down to who audience members—particularly the person who shoots someone and then claims self-defense—determine “belongs” in a certain space and what kinds of behaviors are permitted there. In all three cases, the people who were killed were identified by their killer(s) as not belonging in the spaces they were in and as participating in behaviors that made them suspicious: Martin, in the Sanford, Florida gated community in which Zimmerman lived and served as neighborhood watch captain; Arbery, in the Brunswick, Georgia neighborhood that the McMichaels and Bryan were patrolling; and Joseph Rosenbaum and Anthony Huber in the Kenosha, Wisconsin area that Rittenhouse was protecting from alleged “riots.” One aspect of restored behavior is that it naturalizes the way that each of us scans a location and “reads” the situation. We may feel like our assessments are objective and a manifestation of common sense, but, in reality, we are reiterating assessments we have seen, imagined, and even participated in in the past. Prior to entering a space, we each already have a sense of what this space ought to be “normally” and who and what behaviors would represent an incursion into that normality.

Again, because of the United States’ total climate of anti-Blackness, Black men are often identified as not belonging in a space that, in fact, they have every legal right to be in. Their actions are also more often determined to be suspicious, regardless of whether that suspicion was warranted. This was certainly the case with Trayvon Martin. Zimmerman, in his written statement to police, described Martin as “a male approximately 5’11” to 6’2” casually walking in the rain looking into homes.” In reality, Martin was simply walking back to his father’s residence from a nearby convenience store, but Zimmerman’s description—along with his repeated references to Martin as “the suspect”—emplace Martin in the role of an outsider intent on maliciously (lasciviously?) peeping into homes as he sauntered by in the rain. Zimmerman’s 911 call, during which the dispatcher tells him to stay in his vehicle and to not follow Martin, likewise reveals that Martin’s very presence was what made Zimmerman uneasy. “Hey we’ve had some break-ins in my neighborhood,” Zimmerman told the dispatcher, “and there’s a real suspicious guy…This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around, looking about.” Martin’s mere existence in a space that Zimmerman felt like belonged to him is what triggered the spasm of violence that would end with Zimmerman shooting and killing Martin. Zimmerman also analyzed Martin’s behavior from the perspective of an audience member interpreting a performance’s meaning. “He’s got his hand in his waistband,” Zimmerman told the 911 dispatcher, “and he’s a black male.” Zimmerman seems to tack on that last bit of information to give context to the behavior of having one’s hand in one’s waistband—there is an implication that a Black man who is touching his waistband is inherently, and understandably, a threat. During the trial, Zimmerman’s lawyers argued that Zimmerman shot Martin while the two struggled over the gun, making it clear that Zimmerman became aware that Martin was unarmed at some point in his pursuit of the teen and the ensuing altercation.

Gregory and Travis McMichael likewise identified Arbery as not belonging right away, describing the 25-year-old Black man as “bold” for daring to enter a house that was under construction and had no windows or doors installed. During his trial, Travis McMichael described his feelings about seeing a video that showed Arbery inside the house on the day the McMichaels murdered him. “Seeing a video of him walking around so nonchalant in that house, kind of, it startled me a little bit…Just catching him creeping through that front yard and obviously trying to avoid detection and then doing what he did there and going into the house and walking around in there like it’s no big deal, that was alarming. […] It’s just bold…it’s a bold move.”  Later, after he and his father had retrieved guns and returned to find Arbery, McMichael claimed he drove up next to Arbery and said, “Hey what’s going on, stop a minute, stop a minute, I want to talk to you.” McMichael continued, attempting to validate his defensive violence through a performance analysis of Arbery’s actions. Arbery was “still running,” McMichael said, and “I noticed at this point he was looking very angry…It wasn’t what I expected with me just coming up and talking to him.” Then McMichael’s assessment becomes even more dependent upon his own interpretation of Arbery’s actions: “It was clenched teeth, closed brow. He was mad, which made me think, something’s happened.” Because neither we nor McMichael can be inside Arbery’s head and we cannot hear his testimony because he is deceased, we as an audience to this event are left interpreting the embodied actions that McMichael claims he saw. Even more than usual, we are asked to use our own preconceived notions to determine whether such behavior rises to the level of a lethal threat that requires lethal violence to neutralize it.

Finally, Kyle Rittenhouse’s case proceeded slightly differently. Rittenhouse has claimed that he traveled to Kenosha during the volatile protests of the police shooting of Jacob Blake, a Black man, in order to “watch over the Car Source,” a local car lot at which several cars had been set on fire during the unrest. Rittenhouse testified that, when he encountered Joseph Rosenbaum (the first man that he killed), Rosenbaum was shouting obscenities, including racial epithets. Later, when Rittenhouse ran into Rosenbaum again, Rosenbaum threw a bag at him. Although the bag, which Rittenhouse says he thought was a chain, did not hit Rittenhouse, the teen turned and pointed his gun at Rosenbaum. Rosenbaum, according to Rittenhouse, was not deterred by this act of brandishment; instead, the man tried to disarm Rittenhouse and the teen fired his weapon, killing Rosenbaum. Here, again, we have an example of a shooter positioning himself as audience to certain behaviors and deeming those behaviors threatening enough to warrant lethal force in response. From Rosenbaum’s perspective, he may have been trying to disarm an active shooter, but, since he did not live through the encounter, his assessment of Rittenhouse’s actions cannot enter into the conversation. Rittenhouse thus becomes the unquestioned determiner of what could be read as threatening in that moment and, therefore, defend his “reasonable” response. This assessment seems doubly certain when we examine Anthony Huber’s actions; in an interview, Huber’s girlfriend said he chased Rittenhouse and tried to disarm him in order to protect her and others around them. It is not a stretch to imagine Huber himself had a reasonable belief that Rittenhouse was dangerous and in need of disarming, since the teen had just shot and killed someone. Nevertheless, once Huber’s testimony can no longer enter into the conversation, only the shooter can describe what contributed to his belief that three different men in three different locations all deserved to be shot because of his assessment of their actions.

Analyzing each of these acts of allegedly defensive violence through the lens of performance reveals how the very definition of self-defense requires that we think like audiences about acts of violence. It also underscores how rehearsing for defensive violence increases the chances that uncomfortable, but probably not otherwise lethal, encounters are escalated by the presence of a firearm. Most importantly, however, it demonstrates how the proliferation of firearms paired with histories of anti-Blackness in the United States foments a volatile social landscape within which self-defense becomes the purview of those who fit the “role” of civilian protector, patroller, or watchman—that is, a male who is aligned with the state. Zimmerman was a neighborhood watch captain who aspired to become a police officer, Rittenhouse was part of a cadet program in his hometown and a vocal Blue Lives Matter supporter, and the McMichaels were both former law enforcement: the father a former officer and the son former Coast Guard. All three shooters styled themselves as provisional police in their encounters; in other words, they self-deputized. Far from this being a failure of the state, it reveals one of the ways that certain people are permitted to police the actions of others, going so far as to dole out lethal punishments for the crime of being in the wrong place with an armed, self-deputized man at the wrong time. 

During and after the Rittenhouse trial, a number of opinion pages and commentators worried about the messages being sent to other young, politically inclined gun owners. But state-sanctioned self-deputization is not new; in fact, it has a long history in the U.S.[6] What these three relatively recent cases of allegedly defensive violence demonstrate is that there is renewed public and legal support for the practice of proactively self-deputizing by determining a threat in a public space, confronting the person one deems threatening, and introducing a gun into that confrontation. As gun laws become even more permissive and our social cohesion continues to fray, it is a fair assumption that more and more Americans will arm themselves and carry those arms in public. Because of the impact of anti-Blackness on our social mores and the stories we tell about ourselves, this accelerating arms race is likely to result in more Black Americans being seen as threatening by those who self-deputize, which is likely to lead to more deaths chalked up to self-defense when they are more appropriately the result of self-deputization by those who see themselves as ancillary agents of the state. Right now, the legal definition of self-defense cannot adequately account for someone starting a fight, killing the person they are fighting with, and then claiming self-defense. Too often, such shooters are not even arrested, as initially happened with both Zimmerman and the McMichaels, or are cleared in a pre-trial hearing without a jury ever even entering in. When such cases do make it to trial, the focus on reasonable belief as the standard for self-defense both rewards lethal, rather than debilitating, gunfire and encourages a focus on only the few moments before the gunfire happened—rather than taking into full account how and why the armed person was where they were and why their introduction of a gun into the situation is not part of the initial aggression. Thinking more deeply about self-deputization, and how our increasing acceptance of guns in public facilitates that process for some Americans at the detriment to others, may help refine and clarify what should be considered a reasonable, and thus legally justified, defensive action.

Click here to view a PDF version of this essay.

Cite as: Lindsay Livingston, From Self-Defense to Self-Deputization: Defensive Gun Use and the Performance of Reasonable Belief, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 7, 2022), https://firearmslaw.duke.edu/2022/01/from-self-defense-to-self-deputization-defensive-gun-use-and-the-performance-of-reasonable-belief.

 

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

 

Notes

[1] Josette Féral, “Theatricality,” SubStance 31.2/3 (2002): 11.

[2] Richard Schechner, Performance Studies: An Introduction, 3rd ed. (New York: Routledge, 2013), 28.

[3] Susan Bennett, Theatre Audiences: A Theory of Production and Reception, 2nd ed. (New York: Routledge, 1997), 139.

[4] Christina Sharpe, In the Wake: On Blackness and Being (Durham, NC: Duke University Press, 2016), 21.

[5] Although the men who Kyle Rittenhouse killed and injured were all white, the location of the shooting at a Black Lives Matter protest and the designation of those killed and injured as looters and rioters, with all the racial baggage those terms carry, means that the event must be read through the lens of anti-Black racial conflict in the United States.

[6] Wilbur R. Miller, “A State within ‘The States’: Private Policing and Delegation of Power in America,” Crime, Histoire & Sociétés/Crime, History & Societies 17.2 (2013): 125-135.

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