15 July 2013

Can the Department of Justice file federal criminal civil rights charges against George Zimmerman?

Earlier today, the Department of Justice released the following statement:
"As the Department first acknowledged last year, we have an open investigation into the death of Trayvon Martin. The Department of Justice's Criminal Section of the Civil Rights Division, the United States Attorney's Office for the Middle District of Florida, and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial. Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction, and whether federal prosecution is appropriate in accordance with the Department's policy governing successive federal prosecution following a state trial.
Here is a list of some of the federal criminal civil rights statutes that the Department of Justice can enforce. The most likely possibilities (pending further research) are 18 U.S.C. § 245 and 18 U.S.C. § 249 (Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009). § 245 reads in part:
(b)Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with-- 
(2) any person because of his race, color, religion or national origin and because he is or has been-- 
(E) traveling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air; 
shall be fined under this title, or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under this title, or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
In terms of 18 U.S.C. § 245, the Department of Justice would have to prove beyond a reasonable doubt that George Zimmerman interfered with Trayvon Martin's right to travel any facility of interstate commerce, or a common carrier, on account of his race. (the right to travel is one of six enumerated federally protected activities). Here are the immediate problems I see:
  • Proving race beyond a reasonable doubt might be problematic when the FBI's report concluded that race was not a factor.
  • Are the streets of the gated community public streets? Some places they are, some places they are not. I have no idea what the case is in Florida, in this specific neighborhood.
  • Even if the street is public, is walking on a small, local neighborhood street a federally protected activity connected to interstate commerce?
  • Did Zimmerman "willfully injure" Martin if he acted in self defense?
  • Is following someone sufficient to "interfere" with them?
  • Most recent examples of successful prosecutions at the federal level after being acquitted at the state level are law enforcement (see, i.e., the Rodney King trials). That's not to say other examples don't exist where the person was not law enforcement; I just haven't found any recent examples.
In terms of 18 U.S.C. § 249, this statute is more powerful because the Government would not have to prove any of the six enumerated federally protected activities. On the other hand, the Government must still prove that the crime was in or affected interstate or foreign commerce.

If any of this sounds like double jeopardy, your sense is good. Generally, one cannot be prosecuted twice for the same crime when the penalty is punitive in nature (on the other hand, a civil trial like the one O.J. Simpson faced is permissible because the standard of proof is different and the penalty is not considered punitive). However, the Department of Justice has carved out a limited set of circumstances in which courts have tended to allow a federal prosecution following a state trial even when the person was originally acquitted.

Here is my (slightly) informed speculation:  the Department of Justice released the statement to placate people for a while. They'll do a pro forma investigation and then wait until the flames die down before they claim that they won't (read: can't) file charges. I don't think the Zimmerman case fits within the limited set of circumstances as currently defined by Justice. But who knows. In this case, and in this day and age, anything could happen.
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