In the wake of the Zimmerman acquittal, the Department of Justice announced it is again considering civil rights charges against Zimmerman.  This post discusses the various doctrines and laws that might come into play.

As an initial matter, a federal prosecution of Zimmerman is not barred under the double jeopardy clause of the Fifth Amendment to the United States Constitution.  The “dual sovereignty doctrine,” which holds that a state prosecution does not bar a later federal prosecution, is well-established.  A state prosecution and federal prosecution usually vindicate different interests.  In this case, the Florida prosecution attempted to enforce the murder and manslaughter laws but a federal prosecution would protect civil rights.  Because the civil rights laws were intended to allow for federal prosecution of certain violent crimes despite diffidence, corruption, or incompetence of state officials, those interests would be thwarted, if, for example, a weak state prosecution could bar later federal civil rights charges.

Just because the prosecution would be constitutional, however, does not mean that it would be advisable or even feasible.

Three civil rights laws could conceivably apply to Zimmerman.  Each is found in Title 18 of the United States Code at Sections 242, 245, and 249.  None will be particularly availing for federal prosecutors.

An indictment under Section 242, the statute that was used in the Rodney King prosecution, is subject to dismissal on the ground that Zimmerman was not acting “under color of any law” as the statute requires.  Zimmerman was not a police officer and was not acting at the direction of any law enforcement agency.  Although he was a neighborhood watch captain, there is insufficient evidence that Zimmerman had a close relationship with law enforcement.  Lastly, Zimmerman critics’ favorite fact: that Zimmerman was told by the dispatcher not to leave his vehicle or pursue Martin, undercuts any argument that Zimmerman was acting under color of law.

Neither Section 245 nor Section 249 require that the perpetrator act under color of state law.  However, both require that the Attorney General certify any prosecution.  245(a)(1) and 249(b)(1).  Based upon recent remarks by Attorney General Holder and the Department of Justice, Holder may be inclined to certify a federal civil rights prosecution of Zimmerman.  However, Holder remarked on the Zimmerman case back in April of 2012 and said that “[W]e have to prove the highest standard in the law . . . Something that was reckless, that was negligent, does not meet that standard.  We have to show that there was specific intent to do the crime with the requisite state of mind.”  Although Holder might now bow to political pressure and certify the prosecution, such a decision would be neither intellectually honest nor in accord with his previous public statements or Department of Justice policy.

Section 245 requires that the government prove that the victim was enjoying particular federal or state protected privileges, none of which appear applicable to Martin.  Some analysts have suggested that Martin fell under Section 245(b), which covers, among other things, violence against any person because they were “participating in or enjoying any benefit, service, privilege, program, facility, or activity provided or administered by” the government.  It is difficult to argue that Martin was enjoying any government privilege at the time of the encounter.

In a prosecution arising out of the 1991 Crown Heights riots, in which a black mob attacked and killed a Jewish man in Brooklyn, the government successfully invoked the “public streets” theory, whereby simply walking on a public street brings the victim within the protection of the federal civil rights laws.  Although this theory seems fanciful, it is also inapplicable to Zimmerman because the area in which the fight occurred was not a public street, it was a gated community.

Even if federal prosecutors can show that Martin was exercising a government privilege, that is not sufficient.  If Martin was exercising a federal privilege, then the government need not show that Zimmerman was racially motivated.  245(b)(1)  However, Martin was not exercising any federal privilege.  And even if prosecutors could show that Martin was exercising a state privilege, the government would still need to show that Zimmerman was motivated by Martin’s race.  252(b)(2)

A charge under Section 249(a)(1) would likely be the easiest for the government to prove, because it only requires that the perpetrator injure somebody because of, among other things, their race.  However, that proof will likely be unattainable, given the ample evidence during the state prosecution that Zimmerman had positive attitudes toward African-Americans.  Moreover, given the evidence that Martin was straddling Zimmerman and engaged in a “ground and pound” attack, it would be easy to infer that Zimmerman would have shot Martin regardless of his race.  The lack of evidence of racial animus is fatal to any attempt to charge Zimmerman under the federal civil rights laws.