Will the Department of Justice Find Zimmerman Guilty?

AP Photo/Alex Menendez

Since the end of the George Zimmerman trial, many of those dismayed by the not guilty verdict have pushed for the Department of Justice to press federal civil-rights charges against Trayvon Martin’s killer. Given the strong possibility that race played a role both in Zimmerman's decision to follow the unarmed teenager and in the jury’s verdict, it seems plausible that federal intervention might be warranted. Indeed, soon after the verdict was read in mid-July, Attorney General Eric Holder launched an inquiry into whether civil-rights charges should be filed against Zimmerman. But unless the investigation uncovers evidence that was not publicly available at the time of the trial, it is almost certain that the federal government will decline to prosecute Zimmerman.

The first barrier to bringing civil-rights charges against Zimmerman is that he is not a state actor. Since Reconstruction, the Supreme Court has generally interpreted the Fourteenth Amendment as giving the federal government authority to prosecute state actors for civil-rights violations. Criminal law reflects this. For example, two of the policemen who beat Rodney King in 1991 were prosecuted successfully under the Civil Rights Act of 1870 (also known as the Ku Klux Klan Act or the Force Act) after being acquitted by a state jury. But the Fourteenth Amendment does not generally apply to private actors. 

The fact that Zimmerman was not affiliated with the police in Florida does not in itself mean that no state action is present. In the past, courts have found private actors complicit in civil-rights violations when they have collaborated with police or when government has refused to enforce the law. (This was a common occurrence during the Jim Crow era, when official state racism and private terror were deeply entangled.) In this case, however, there is clearly no state action present. Local authorities told Zimmerman that leaving his car to follow Martin was unnecessary, so there was no before-the-fact collaboration. He was questioned and had his weapon seized after the shooting, and of course was eventually prosecuted for second-degree murder. The delay between the night of the shooting and the decision to prosecute can be fairly criticized as unjust or unwise, but it plainly does not rise to the level of a civil-rights violation. (Indeed, since Zimmerman had a non-farcical self-defense claim under Florida law, there would almost certainly be no case under the Civil Rights Act of 1970—even had Florida not prosecuted Zimmerman at all.)

Any federal prosecution of Zimmerman for civil-rights violations, therefore, would presumably have to be under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009. Unlike the Klan Act, the Shepard/Byrd Act does apply to private individuals. In addition to extending protections to people based on crimes committed against them because of their sexual orientation, Shepard/Byrd removed the condition that victims had to be exercising a federal right (like voting) to trigger civil-rights protection. Any violence inflicted on someone because of their race is potentially a federal crime under this statute. (Contrary to the views of some, hate-crime laws do not punish "thought crimes"; they punish actions motivated by animus against a particular group.) Since it seems implausible to many observers (including me) that Trayvon Martin would have been followed by Zimmerman if he had been doing the same things as a white teenager wearing Abercrombie & Fitch, on the surface it might seem as if prosecution under Shepard/Byrd should be possible.

According to former officials charged with civil-rights enforcement, however, convicting people of hate crimes is not easy. "Juries are very reluctant to find that animus motivated a violent crime," says Rachel A. Harmon, a professor at the University of Virginia Law School who worked as a prosecutor in the Civil Rights Division of the Department of Justice during the Clinton and second Bush administrations. "It's very hard to prove bias motivation beyond a reasonable doubt," concurs Samuel Bagenstos, who served as principal deputy assistant attorney general for Civil Rights under the Obama administration and now teaches at the University of Michigan Law School.

Two examples serve to illustrate the difficulty of securing convictions in hate-crimes prosecutions. In 2011, two Kentucky men who beat a gay man named Kevin Pennington nearly to death were acquitted of hate-crime charges despite testimony that the accused men used homophobic language such as "kill that faggot!" while beating Pennington. A 2000 case prosecuted by Harmon—prior to the enactment of Shepard/Byrd—had a similar outcome. Jeffrey Rowe was charged with a hate crime for blowing up a car belonging to an African-American couple, who had had his car towed because he lacked a permit to park in their housing complex. Despite testimony from multiple witnesses that Rowe had used racial slurs to refer to the victims, the jury convicted Rowe for arson but not for a hate crime.

Of course, prosecutors have to make independent judgments about whether a hate crime has been committed, and not all prosecutions with similarly damning evidence fail. But given the difficulty of convicting people of hate crimes even when there's substantial evidence, a successful prosecution of Zimmerman would be exceedingly hard. At the time being, the evidence available doesn't make a robust case given past precedent. "Most of the cases where hate-crimes charges are successful involve direct evidence of motivation," such as co-witness testimony, observes Bagenstos. In the Zimmerman case, "it would be very hard to prosecute as a hate crime based on what we know." Even proving beyond a reasonable doubt that Zimmerman followed Martin because of his race would be enormously difficult. And even this would be insufficient—it would also have to be proven beyond a reasonable doubt that the violence Zimmerman inflicted on Martin was motivated by racial bias.

None of this means that it is inappropriate for the Department of Justice to consider bringing civil-rights charges. A federal probe might reveal evidence that state investigators failed to uncover. But barring the appearance of new evidence, successful civil-rights charges seem an unlikely way for justice to prevail in this case.

Trayvon Martin should not be dead today. But this is probably not a wrong that can be corrected under federal civil-rights law. Given the passage of the Shepard/Byrd statute, gaps in federal law are probably not the issue. The key lesson in preventing future similar wrongs is to reform the law of self-defense at the state level.

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