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In the aftermath of a Florida jury’s acquittal of George Zimmerman on charges of murder and manslaughter, civil rights organizations and ordinary citizens asked the U.S. Department of Justice to pursue charges under federal civil rights laws. In response, a spokesperson for the department said it would “determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction.”
This, of course, raises key questions, like: What kind of jurisdiction does DOJ have, and what is the likelihood it will pursue such charges?
The request for federal prosecution follows a familiar pattern following killings of black men, and sometimes women, by law enforcement officials: The police are either cleared of wrongdoing by local or state authorities without facing trial, or if tried in state court, they are acquitted (unarmed white men and women are rarely killed in interactions with police). Many black people have a deep-seated skepticism, extending as far back as the Jim Crow era, about the ability or willingness of state courts to justly adjudicate these cases.
The Justice Department has available to it several statutes designed to protect those deprived of civil and constitutional protection after state courts failed. If Attorney General Eric Holder wants to pursue charges, here’s what his statutory authority looks like:
In sum, the Justice Department has at its disposal several statutes enacted by Congress with the intent of providing federal protections to those deprived of civil and constitutional protection where state courts failed. These statutes were fashioned to deal with systemic defaults in an era of widespread violence and intimidation, and even KKK infiltration and control of the mechanisms of local and state law enforcement and the judiciary. The focus on conspiracy and action under color of law mirrored the manner in which racial oppression and subordination were carried out.
The phenomenon of late 20th and early 21st century law enforcement killings of unarmed African-Americans — occurring in the context of a criminal justice system that arrests, prosecutes and incarcerates black people at massive rates dwarfing those of European Americans — is inadequately addressed by post-Civil War, Reconstruction Era laws.
These laws, at first blush, appear to be exactly what the doctor ordered when, as in the late 19th and early 20th century Jim Crow era, state court remedies for civil rights violations, including racially motivated killings, were largely unavailable in the South. But 21st century killings of unarmed African-Americans present a problem that does not quite fit the solution created by Congress in the Reconstruction Era. It is not that the laws can’t apply; it is that they do not apply well. Or perhaps, that they are not applied well.
Either way, those who believe that the acquittal of George Zimmerman in the killing of Trayvon Martin, an unarmed black teenager with no criminal intent on the day he was killed or record of violent or otherwise significant criminal activity, was a miscarriage of justice, should be cautious about their expectations for a federal criminal conviction.
Ironically, the Obama Justice Department, even with the first African-American attorney general, has legal and political constraints that put it in an impossible position. Once again, as was true in the heady and euphoric days following Barack Obama’s election as president in 2008, expectations are high. No matter which way his administration steps on the Zimmerman case, it is invariably going to disappoint and anger important constituencies.
Many European Americans (but certainly not all) blindly insist that race was not part of Trayvon Martin’s death, or George Zimmerman’s trial. Some of these same individuals, who insist that race played no part in Trayvon Martin’s death are paradoxically quick to see race when it comes to what they call “black on black” crime. Most African-Americans, whose unarmed sons, fathers, brothers and sometimes even their mothers (remember Eleanor Bumpurs) have been doing the dying, see it differently. They understand that the senseless violence and dysfunction that characterize poverty-impacted communities of all races, as hugely important as it is, is a different phenomenon with different implications than those that attend the dangerously corrosive destruction of faith in our core institutions, including those entrusted with our protection.
Many Americans, regardless of race, see the place of race in Trayvon Martin’s death and in our grotesquely distorted criminal justice system. Most understand that the president and the attorney general are, in all likelihood, no less outraged by the death of an innocent youth, than they are. Even still, there may be little justice in the criminal courts. Without a reboot of federal laws that provide a backstop to 21st century state court inadequacies when it comes to civil rights protections, the Justice Department option will remain a last choice, uphill avenue in which the odds of relief are long.
The Martin family may have one ace up their sleeve, however. A civil suit may force Zimmerman to take the stand, and subject him to cross-examination concerning his deeds that fateful day. Although his lawyers, publicists and apologists will undoubtedly and shamelessly continue to try to turn Trayvon Martin into something he was not — and although there will be risk and continued pain for the family — there may be some consolation in holding Zimmerman accountable in a civil trial. Meanwhile, Trayvon Martin has joined Emmitt Till, Rodney King and others whose unsought and unwanted fame has shone a momentary spotlight on America’s continued struggle with its greatest demon – not just race, but the subordination and demonization of African-Americans.
Theodore M. Shaw is Professor of Professional Practice at Columbia Law School, and the Former Director-Counsel and President of the NAACP Legal Defense Fund, Inc. He has taught at Michigan, Temple, and CUNY Law schools, and practiced civil rights law for three decades.More Theodore Shaw.