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.
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."
Conclusion
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.
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.
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.
Good insights into Trayvon's case.
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