Sunday, August 4, 2013

A Long and Painful Summer on Issues of Racial Justice

Shelby, Fisher and Trayvon Martin

By Leland Ware

On February 26, 2012, George Zimmerman, a 29 year-old insurance underwriter and a part time student, shot and killed Trayvon Martin, a 17 year-old African American high school student. The homicide was completely unjustified. Martin was unarmed and not breaking any laws. After a long delay, Zimmerman was charged and prosecuted for second degree murder and manslaughter. The jury, on which no African Americans served, found him not guilty on both charges. Zimmerman's acquittal was a travesty of justice. This case shows that there still is a profound racial divide in America. Blacks are treated differently and far less favorably than whites in the criminal justice system.
George Zimmerman was a neighborhood watch captain at the Retreat at Twin Lakes, a gated community in Sanford, Florida. Martin was visiting his father who lived in the neighborhood. The events leading to his death began to unfold when Zimmerman noticed Martin returning to the Twin Lakes neighborhood from a local convenience store. Without any evidence other than his race Zimmerman decided Martin was “suspicious.”
Zimmerman called the Sanford police department and said, "We've had some break-ins in my neighborhood, and there's a real suspicious guy." He said Martin was "just walking around looking about" in the rain and said, "This guy looks like he is up to no good or he is on drugs or something." On a recording of the phone call, Zimmerman could be heard uttering under his breath, “Fucking punks…These assholes, they always get away."
About two minutes later, Zimmerman said, "he's running." The 911 dispatcher asked, "He's running? Which way is he running?" The dispatcher then asked Zimmerman if he was following Martin; he answered, "yeah." The dispatcher said "We don't need you to do that” indicating that Zimmerman should stop following Martin. Zimmerman responded, "Okay" but continued to pursue Martin.
Some of the details of what happened next are not clear. Zimmerman told authorities that he lost track of Martin and saw him again when the teen approached him. Phone records show that at approximately 7:10 p.m., Martin was on the phone with a friend, Rachel Jeantel. Marin told her that he was being followed and trying to get away from the man pursuing him.
As they spoke Jeantel interpreted what she heard as an altercation, during which the earpiece fell from Martin's ear cutting off their connection. In a recording of the phone call, a voice could be heard screaming "Help, help!" followed by the sound of a gunshot. During the confrontation Zimmerman shot and killed Martin.
Zimmerman’s Trial
Zimmerman was charged with second degree murder and manslaughter. In Florida, the “unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree.” The laws also state, “the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification…and in cases in which such killing shall not be excusable homicide or murder…is manslaughter.”
This was a textbook case of racial profiling. Zimmerman assumed Martin was a criminal based entirely on his status as a young black male wearing a hoodie. There was no evidence of any criminal activity. Zimmerman was angry about burglaries in his neighborhood and intent on insuring that Martin did not get away with crimes that existed only in Zimmerman’s imagination.
Zimmerman's dogged pursuit of Martin was "imminently dangerous" and reflected a "depraved mind." Under Florida law a depraved mind means an individual acted with ill will, hatred, spite, or an evil intent. Zimmerman's anger at the“fucking punks" and "assholes" who "always get away" evidenced "spite," "ill will" and a malicious state of mind. This is sufficient proof for a verdict of second degree murder. Premeditation is not required.
Zimmerman claimed he acted in self-defense when he shot Martin. Historically, a person was legally obligated to retreat from an attack and allowed to use deadly force in self-defense only when a safe retreat was not possible. However, under Florida’s “stand your ground” law, a person does not have a duty to retreat if he reasonably believes that deadly force is necessary to prevent death or great bodily harm.
Zimmerman followed Martin intending to confront him about his presence in the Twin Lakes neighborhood. He was armed with a Kel-Tec PF-9 9mm semi-automatic pistol. The confrontation should have been seen as a provocation. Under Florida law an aggressor has a duty to retreat, but may use force if he reasonably believes that he is in danger of death or severe bodily harm. This defense is available only after all avenues escape have been exhausted. This did not happen in this case. Zimmerman was the transgressor. He persisted in his armed pursuit of Martin after being told not do so.
The jury concluded that the prosecution failed to prove its case. The jurors discounted Zimmerman’s malevolent state of mind when he stalked Martin. Zimmerman was armed, angry and prepared to use deadly force. The jury did not consider this or the threat Zimmerman posed to Martin.
After the trial, one of the jurors said she had "no doubt" Zimmerman feared for his life in the final moments of his struggle with Trayvon Martin, She believed Zimmerman’s "heart was in the right place" the night he shot Martin, but that he didn't use "good judgment." She said "He had a right to defend himself…If he felt threatened, that his life was going to be taken away from him, or he was going to have bodily harm, he had a right." This was an incorrect interpretation of the law.
Zimmerman's heart could not have been in “the right place” when he pursued Martin while armed with a deadly weapon, especially when he continued after being told not to do so by a police dispatcher. At minimum, Zimmerman is guilty of manslaughter. Zimmerman's aggression should have precluded a claim of self defense under the Florida law. Intent to commit a homicide is not required to prove manslaughter. Evidence of "culpable negligence" is all that is required.  
The legal definition of negligence is the failure to exercise a reasonable degree of care which results in an unintended injury to another party. Zimmerman's conduct was negligent. A reasonable person would have foreseen the possibility of an injury resulting from his pursuit of Martin and taken preventive measures. In fact, Zimmerman's conduct went beyond mere carelessness to gross negligence as his actions reflected a reckless disregard for the safety of others. Trayvon  Martin would be alive if Zimmerman had simply obeyed the dispatcher's instructions.
As President Barack Obama observed, “If Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman, who had followed him in a car, because he felt threatened?” The answer, of course, is no. Martin's death was entirely unjustified and should not have been excused as self-defense. If Martin were white, he would not have been killed.
Shelby County Alabama v. Holder
The Trayvon Martin case was not the only recent setback for African Americans. During the final week of this year's term, the Supreme Court issued decisions that severely undermined important advances made during the Civil Rights Movement. In one case the Court struck down a key provision of the Voting Rights Act. In the other case the majority went as close as it could to eliminating affirmative action without doing so outright.
On June 25, 2013, the Supreme Court issued the ruling in Shelby County Alabama v. Holder.  In a 5-4 decision, the majority held that Section 4(b) of the Voting Rights Act of 1965 (VRA) is unconstitutional because Congress’ 2006 reauthorization relied on outdated evidence. Section 4(b) identifies the jurisdiction covered by Section 5. The Shelby decision means jurisdictions covered under Section 5 are not obligated seek preclearance until Congress enacts a new coverage provision to replace Section 4.
The ruling makes it difficult to combat the discriminatory activities Congress identified in 2006 when it re-authorized the VRA. It also makes it difficult to challenge the voter suppression tactics that were so widespread during the 2012 election. Vigorous efforts must be made to persuade Congress to the reenact Section 4.
Shelby and Section 5
Section 5 of the VRA requires "covered" jurisdictions to seek clearance from the Attorney General or the federal court in Washington D.C. before they make any changes to their voting procedures. During the 1950s and '60s the federal government’s efforts to eliminate discriminatory election practices with court cases were frustrated. As soon as one discriminatory practice was proven to be unconstitutional, a new one would be substituted. To put an end to this, the 1965 Act included preclearance provisions that targeted states where the potential for discrimination was the greatest.
Section 5's coverage formula is contained in Section 4(b). The preclearance requirement originally applied to states and political subdivisions that maintained a "test or device" restricting the opportunity to register or vote on November 1, 1964 and less than 50 percent of persons of voting age were registered to vote. Congress reauthorized the VRA in 1970 and 1975. The Act was extended for 25 years in 1982 and 25 more years in 2006 without any changes to the coverage formula established in the 1970s.
The government argued that the voluminous evidence on which Congress relied in reenacting Section 5 included 15,000 pages of testimony, reports, and data regarding racial disparities in voter registration, voter turnout, and electoral success. Many of these were "second generation" violations that are more subtle but equally effective in denying voting rights.
Nothing was presented to rebut this evidence. However, the majority rejected the government’s argument and held Section 4(b)'s formula relied on outdated evidence from the 1960s and 70s. In the majority's view, the 2006 record did not show the “pervasive,” “flagrant,” “widespread” and “rampant” discriminatory practices that were common in the 1960s. The majority did not strike down Section 5 but it achieved the same result using indirect means. Section 4(b), which identifies covered jurisdictions, was struck down. Without Section 4(b) Section 5 cannot be enforced.
Although the protections against discrimination accorded by Section 2 of the VRA remain intact, states across the country have enacted measures that make it more difficult for racial minorities to exercise their voting rights. Many discriminatory tactics were identified during the 2006 Congressional hearings and new problems have arisen. Efforts to suppress black votes were a centerpiece in the Republican Party’s 2012 election strategy. The coverage provisions of Section 4(b) must be restored to allow the resurrection of Section 5.
Fisher v. University of Texas
On June 24, 2013, the Supreme Court issued the decision in Fisher v. University of Texas. The Court's decision did not disturb the holding in Grutter v. Bollinger, the University of Michigan case which affirmed the constitutionality of affirmative action admissions programs in 2003. However, the case was remanded to the Court of Appeals for a determination of whether University of Texas’ admission process is “narrowly tailored” using a new interpretation that will be difficult to satisfy: Universities cannot consider race in admission decisions unless they can show that race-neutral alternatives would not suffice to achieve student body diversity. Affirmative action in higher education has not been eliminated but it is hanging by a very thin thread.
The challenger in Fisher contended, among other things, that the University of Texas' (UT) race-conscious admissions policies are unconstitutional because adequate consideration had not be given to race-neutral alternatives. Texas' admissions process divides applicants into three groups: Texas residents, domestic nonresidents, and international students. Texas residents are allotted ninety percent of all available seats. Under Texas' Top Ten Percent law, students with grades in the top tenth percentile of their high schools' graduating classes are automatically admitted. Applicants who are not in the top ten percent compete for admission based on their academic and personal achievement indices.
The academic index is based on SAT scores and grades. The personal index is based on a score awarded for two required essays and a "personal achievement score" which represents a "holistic" evaluation of the applicant’s file. This score includes a “special circumstances” element that may reflect the applicant's socioeconomic status, family status and family responsibilities and the applicant’s standardized test score compared to the average at her high school and the applicant’s race.
Under the Fourteenth Amendment the legal standard that applies to governmental policies that classify on the basis of race is "strict scrutiny." To satisfy this requirement, the government must have a "compelling justification" for the classification and the means chosen must be "narrowly tailored" to achieving a legitimate governmental interest.
Race-Neutral Alternatives
In Fisher the Court affirmed Grutter’s ruling that “obtaining the educational benefits of student body diversity is a compelling state interest that can justify the use of race in university admissions.” The case focused instead on the “narrow tailoring” requirement. The Court held that the lower courts applied the wrong analysis when they deferred to UT's judgment regarding the need to consider race in its admissions process. The lower courts also ruled that Fisher was obligated to rebut the presumption that UT acted in good faith. This, the Court found, misallocated the burden of proof.
Fisher obligates universities to show that race-neutral alternatives would not suffice to achieve student body diversity. The Court said "[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” This means the obligation to show narrow tailoring has been significantly heightened and shifted to universities.
Although it raised the burden of proof, the Court stated that “narrow tailoring does not require the exhaustion of every conceivable race-neutral alternative.” One unanswered question is how much evidence is needed to satisfy the new requirement. Fisher will make it difficult to justify race conscious affirmative action. This is likely generate years of litigation seeking to clarify the meaning of “narrow tailoring."
The not guilty verdict in the George Zimmerman prosecution was a travesty of justice. It perpetuates the stereotype of young black men as "suspicious criminals" Their race alone provides cause to believe that criminal activity was about to take place. In the minds of the jurors this justified Zimmerman's stalking Martin and excused his use of deadly force against the unarmed teenager. This shows that there is one standard for young black men and another for everyone else.  The presumption of innocence is reversed. They are assumed to be criminals unless it is proven that they are not.
The Supreme Court’s decisions in Shelby and Fisher reflect the Court's cabined view of the equality rights of minorities. Shelby County was welcomed by those who feel the Voting Rights Act created "special rights" for minorities. Fisher advanced the interests of affirmative action opponents. Shelby and Fisher confirm the Supreme Court’s racial agenda. The majority has seized every opportunity to erode the accomplishments of the Civil Rights Movement.

About the Author

Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.

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