Skip to main content

Trayvon Martin shooting wasn't a case of racial profiling

By Mark NeJame, CNN Contributor
updated 9:09 AM EDT, Wed May 30, 2012
George Zimmerman walks into court for a recent appearance.
George Zimmerman walks into court for a recent appearance.
STORY HIGHLIGHTS
  • Mark NeJame: Many have said George Zimmerman engaged in racial profiling
  • He says civilians aren't subject to same restrictions as police officers face
  • Evidence doesn't support the claim that his actions were racially motivated, NeJame says
  • He says case may not hold up in criminal court, may go to civil lawsuit

Editor's note: Mark NeJame is a CNN legal analyst and contributor and has practiced law, mainly as a criminal defense attorney, for more than 30 years. He is the founder and senior partner of NeJame, LaFay, Jancha, Ahmed, Barker and Joshi, P.A., in Orlando. Follow him on Twitter: @marknejame

(CNN) -- Ever since the Trayvon Martin case came to national attention, George Zimmerman has been described by some as having racially profiled the 17-year-old before he was shot and killed.

There's a difference of opinion about whether racial profiling was actually involved, but a key question that is often overlooked is the distinction between profiling by a citizen and profiling by a member of law enforcement. That distinction is likely to be crucial in determining the direction the case may go.

As a criminal defense attorney for more than 30 years, I can't even begin to recall how many cases my firm has handled that involved challenging law enforcement officers for the practice of stopping or searching an individual based on what is typically referred to as racial profiling.

Mark NeJame
Mark NeJame

Essentially, racial profiling occurs when race, national origin or ethnicity is the primary or sole consideration used by an officer of the law when intervening in a law enforcement capacity. Racial profiling is a form of discrimination that is not only despicable, but also is an illegal and improper basis for any police officer to stop, search, arrest or investigate another person.

The issue of racial profiling has been bandied about often in discussions of Martin's shooting. As with many things concerning the case, much misinformation has circulated.

Trayvon Martin evidence a game changer?
Inconsistencies in Trayvon Martin case
What Trayvon Martin's girlfriend heard

Zimmerman was not a law enforcement agent. He was a civilian, operating under different legal standards than those applied to the police. Merely because he was a neighborhood watch captain does not attach law enforcement status to him.

Tape showed Zimmerman's anger over black man's beating

It has been reported that he acquired a concealed weapon permit, which legally allowed him to conceal the gun that was used to shoot and kill Martin.

Hence, although Zimmerman was possibly negligent, irresponsible and exercised poor judgment, it was not illegal for him to follow Martin, carry a gun when doing so or even ignore the opinion of the civilian 911 dispatcher when advised, regarding his following Martin, "OK, we don't need you to do that."

The only legal relevance as to whether race was the determining factor in the following and killing of Martin was whether it goes to establish if Zimmerman exercised a "depraved mind" regarding the killing.

This requisite depravity is a necessary element for second-degree murder in Florida, the crime for which Zimmerman has been charged. If racism or bigotry can be established as the basis for killing Martin, then a second-degree murder charge could be appropriate.

However, with the evidence that has emerged, especially that contained within the discovery documents released in recent days, proof of a racial motive concerning the shooting seems wholly lacking.

Opinion: What to take away from the death of Trayvon Martin

Even if a racial aspect was among the factors that led Zimmerman to be suspicious of Martin and follow him, the law regarding what a civilian may do when following another person was not necessarily broken.

Is it racial profiling for a black man to avoid going into a biker bar at night in a small rural town? Is it racial profiling for a white person to refuse to take a stroll through housing projects in a large urban city at midnight?. The biker bar and the projects both undoubtedly are filled with people who are racially colorblind, but most would assume that some might not be. Is it racial profiling or life's cumulative experiences and knowledge or simply common sense that would cause one to formulate an opinion?

A civilian standard of profiling is much different legally than that applied to a law enforcement officer. A civilian, as offensive as it may be, is allowed to personally act on biases or prejudices, whereas a law enforcement officer is prohibited from doing so.

From the first press reports, I believed the shooting was racially motivated. If so, life in prison would be wholly appropriate as a punishment upon conviction. However, research, investigation and learning the facts caused me to reverse this earlier opinion.

The apparent absence of reported previous acts of bigotry, the statements from family and friends indicating Zimmerman wasn't prejudiced, being raised in a multiracial family and having many ethnically diverse friends (which standing alone would be irrelevant but relevant to me when taken in totality with these other indicators), his mentoring of two black youth over a couple of years at his own expense and doing so without fanfare or attention and a review of prior calls and the 911 call indicating race wasn't the basis of the call are some of the reasons for reassessing my original opinion.

Moreover, documents released in the case indicate Zimmerman had previously expressed concern and was critical of the Sanford, Florida, police for the way they treated a case involving the beating of a homeless black man when they didn't arrest the white defendant immediately. (A lawyer in my firm represented the defendant in that case, who was the son of a Sanford police officer.)

There is a question about whether George Zimmerman primarily called the police to report suspicious activity of young black men. If true, this is quite troubling. But before its relevance could be fully determined, an analysis would need to be made of each call to determine the ratio of calls made relative to blacks, whites and Hispanics, whether other strangers who weren't black were ever seen in the complex and not called on and whether unknown black men were ever seen in the complex and the police not called. It would also be relevant to determine whether the race of the suspects in the rash of burglaries that had previously occurred in the complex were ever identified. Too much speculation has surrounded this tragedy and I think it important to fully evaluate such matters before conclusions are reached.

Barring new facts or possibly a more detailed analysis of Zimmerman's previous calls, there doesn't appear to be any evidence or support for the supposition that bigotry or prejudice played a role in Zimmerman's shooting of Martin

This doesn't mean Martin had to die. Would Zimmerman have been so bold if he wasn't carrying a gun? Likely not, and I've argued before that gun laws need to be reviewed in light of this case. This was the inevitable deadly consequence when an altercation occurred and a gun was legally allowed to be in a public place.

Without establishing that the killing was racially motivated, any claim that Zimmerman committed second-degree murder in shooting Martin will not survive. Interestingly, the state in its charging affidavit simply claimed Zimmerman "profiled" Martin, not that he racially profiled him.

This allows the state to keep such a claim open-ended, likely knowing early on that it couldn't sustain the burden of proving racial profiling. More and more, this case looks like it will be thrown out in criminal court and eventually be headed to civil court.

Follow @CNNOpinion on Twitter

Join us at Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Mark NeJame.

ADVERTISEMENT
Part of complete coverage on
updated 2:45 PM EDT, Thu April 17, 2014
Michael Bloomberg and Shannon Watts say Americans are ready for sensible gun laws, but politicians are cowed by the NRA. Everytown for Gun Safety will prove the NRA is not that powerful.
updated 9:28 AM EDT, Thu April 17, 2014
Ruben Navarrette says Steve Israel is right: Some Republicans encourage anti-Latino prejudice. But that kind of bias is not limited to the GOP.
updated 7:23 PM EDT, Wed April 16, 2014
Peggy Drexler counts the ways Phyllis Schlafly's argument that lower pay for women helps them nab a husband is ridiculous.
updated 12:42 PM EDT, Wed April 16, 2014
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
updated 11:39 AM EDT, Wed April 16, 2014
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
updated 2:49 PM EDT, Tue April 15, 2014
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
updated 7:56 AM EDT, Wed April 16, 2014
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
updated 7:53 AM EDT, Wed April 16, 2014
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
updated 5:29 PM EDT, Tue April 15, 2014
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
updated 12:41 PM EDT, Tue April 15, 2014
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
updated 11:23 AM EDT, Mon April 14, 2014
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
updated 7:56 AM EDT, Mon April 14, 2014
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
updated 1:54 PM EDT, Mon April 14, 2014
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
updated 7:55 AM EDT, Mon April 14, 2014
Democrats need to show more political spine when it comes to the issue of taxes.
updated 11:55 AM EDT, Mon April 14, 2014
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
updated 9:17 AM EDT, Mon April 14, 2014
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
updated 2:56 PM EDT, Sun April 13, 2014
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
updated 11:22 AM EDT, Fri April 11, 2014
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
updated 3:06 PM EDT, Fri April 11, 2014
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
updated 10:32 AM EDT, Fri April 11, 2014
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
updated 12:49 PM EDT, Fri April 11, 2014
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
updated 10:16 AM EDT, Fri April 11, 2014
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
updated 9:21 PM EDT, Fri April 11, 2014
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
updated 1:31 PM EDT, Thu April 10, 2014
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
updated 5:28 PM EDT, Thu April 10, 2014
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
updated 11:22 AM EDT, Mon April 14, 2014
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
updated 12:32 PM EDT, Thu April 10, 2014
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
updated 2:39 PM EDT, Wed April 9, 2014
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT