“Can federal charges be brought against Zimmerman?”

Reuters on July 23, 2013 released the following:

“By William Yeomans

Now that a Florida jury has found George Zimmerman not guilty of second degree murder and manslaughter, people across the nation are demanding federal prosecution. But this public debate has been clouded by misinformation about the possibility and scope of federal charges.

President Obama’s powerful comments on Friday helped put this matter in perspective. The state prosecution deserves a strong measure of deference. The federal government must, however, conduct a thorough investigation and undertake the rigorous analysis necessary to ensure that the federal interest in punishing civil rights violations is vindicated to the greatest extent possible.

The public outcry for federal involvement reveals the legitimate passions stirred by the killing of Trayvon Martin and drives home the importance of getting this right. The decision whether to prosecute, however, must be based on the evidence and the law as analyzed by professional civil rights prosecutors in the Justice Department.

Here are the essentials that the public needs to understand.

1. Federal charges are not barred by double jeopardy. While a state or the federal government cannot prosecute the same individual twice for the same crime, the state of Florida and the United States are separate sovereigns. Each has independent authority to prosecute individuals for violating their respective laws. The Supreme Court has ruled that a prosecution by the state does not pose a constitutional prohibition against prosecution by the federal government.

2. Though a federal prosecution is not barred by the Constitution, the federal government will pursue a successive prosecution based on the same conduct only when the state prosecution has left unvindicated a substantial federal interest and the government believes the evidence will be sufficient to obtain conviction of a federal crime by an unbiased jury. These requirements, sometimes referred to as the Petite policy, appear in the manual that guides United States attorneys.

The killing of this unarmed African-American teenager implicates the substantial federal interest in punishing racially motivated violence. For the limited purpose of identifying the interest, prosecutors will assume they can establish racial motivation. The more difficult elements to satisfy are whether the federal interest has been left unvindicated and whether the evidence is likely to lead to conviction.

In evaluating whether the interest has been left unvindicated, it is not enough that Zimmerman was acquitted. Rather, federal attorneys must examine factors such as whether the jury disregarded the evidence or law, significant evidence was unavailable, state law required proof of a fact that is not required by federal law, or there was some other element of the prosecution that left vindication of the federal interest incomplete.

3. Federal civil rights laws generally serve as a backstop for state criminal law enforcement. Federal civil rights laws date back to Reconstruction. They are usually based on the notion that states have primary responsibility for punishing violent acts, but there are federal interests of such importance that Washington must have independent authority to prosecute. The need for federal criminal civil rights laws lies in part in the failure of recalcitrant state and local officials — particularly in the South — to enforce the law and of Southern juries to return convictions. If the state is pursuing charges against a defendant that, if proven, would likely vindicate the federal interest, the federal government will generally step back to allow the state process to play out. Once that is complete, the federal government can then evaluate the adequacy of the state process and decide whether to pursue federal charges. It may decide further investigation is necessary or it may conclude all the evidence has been obtained.

4. While successive federal civil rights prosecutions are rare, they do happen. Perhaps the best known example was the prosecution of the Los Angeles police officers involved in the beating of Rodney King in 1991. After officers were acquitted of state charges, the federal government indicted four officers and obtained convictions of two. Similarly, the federal government prosecuted and obtained convictions of two men in the anti-Semitic killing of Yankel Rosenbaum in Crown Heights, New York in 1991 after they had been acquitted in state court.

5. Federal criminal law is limited, but there are several criminal civil rights statutes that serve as backstops to state law. Two such laws — 18 U.S.C. 241 and 242 — punish the deprivation of rights by state actors. These are the statutes used most often — as in the King case — to punish police officers who use excessive force. They appear unlikely to apply to Zimmerman, who was not cloaked in state authority, but was acting as a vigilante.

Two other laws — 18 U.S.C. 245 and 249 — prohibit racially motivated violence. Section 245 was enacted in 1968, as the first federal hate crime statute, along with the Fair Housing Act, which contains prohibitions against racially motivated violence associated with housing. Section 245 requires that the government show that the defendant used force because of race and because the victim was engaged in one of the six federally protected interests enumerated in the statute.

In this case, the government would likely have to show that Zimmerman attacked Martin because of his race and because he was using a public facility. The government would have to establish that the area where Martin was attacked was a public street or sidewalk, which could prove problematic since the attack occurred in a private, gated community.

In 2009, however, Congress enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which made it a crime to cause bodily injury because of race — regardless of whether the victim was exercising a federally protected right. This statute — 18 U.S.C. 249 — provides the most likely basis for a federal prosecution.

6. The major challenge of a federal prosecution will be to establish beyond a reasonable doubt that Zimmerman was motivated by race when he shot Martin. Race plainly played a central role in Martin’s death. Few would contend seriously that if Martin had been white Zimmerman would have profiled him in the same way and would have initiated the contact that led to his death. The government’s challenge, however, would be to convince a jury beyond a reasonable doubt that race motivated Zimmerman’s infliction of bodily harm. Zimmerman, doubtless, will argue that he was never motivated by race and certainly when he pulled the trigger he was defending himself and trying to save his life.

Most important, however, the state charges did not require it to prove racial motivation. The FBI has the opportunity and the obligation to investigate further into Zimmerman’s motivation.

In the end, whether or not criminal law provides a response to this unspeakable tragedy, the death of Trayvon Martin should spur each of us to heed Obama’s call to examine our individual attitudes about race, crime and culture. We should combine that reexamination with the extraordinary energy produced by the massive peaceful demonstrations following the verdict to examine harmful stereotypes and ill-conceived laws as we continue our long, painfully slow march toward the promise of a just nation.”


Douglas McNabb – McNabb Associates, P.C.’s
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The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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