How the feds could still charge Zimmerman

A civil rights law expert explains what DOJ can do if it wants to charge Trayvon Martin's killer

By Theodore Shaw
Published July 16, 2013 8:34PM (EDT)
George Zimmerman                 (AP/Gary W. Green)
George Zimmerman (AP/Gary W. Green)

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:

  • Following the Civil War, the federal government enacted a number of laws aimed at providing a backstop for the failure of states to protect the civil rights of African-Americans. These Reconstruction Era statutes, some directed at the Ku Klux Klan, tended to focus on conspiracies between two or more persons (for those looking for the specific statutes, they’re known as 18 U.S.C. sections 241 and 242; and 42 U.S.C. sections 1983, 1985 and 1986). Section 241 applies when “two or more persons conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States.”
  • Reconstruction Era laws included prohibitions against persons in disguise going on the highways with the purpose of threatening and intimidating individuals on the basis of race or color, and otherwise interfering with the exercise of constitutional and civil rights. Another statute (18 U.S.C. section 242) addresses deprivations of rights “under color of law”: “whenever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person … to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States”. While not limited to conspiracies, section 242’s “color of law” language (like the often used 42 U.S.C. section 1983), applies to persons who act under governmental authority. Of course, one has to anticipate the irony of Zimmerman, the “wannabe cop,” arguing that since he was a private citizen and not really a law enforcement officer, the statute does not apply to him. Justice Department prosecutors would have the added burden of showing that Zimmerman “willfully” acted to deprive Trayvon Martin of his constitutional or civil rights.
  • Another statute in the arsenal of the Justice Department does not require proof of action under color of law, or of conspiracy; 18 U.S.C. section 245(b) (1) prohibits “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 to interfere with any person because he is or has been [engaging in enumerated rights such as voting, participating in federally administered programs, serving as a juror, etc.]”. Section 245’s enumeration of protected activities narrows its application to require a showing that Martin was engaged in the exercise of a federally protected right. Section 245 (b)(2) includes a similarly enumerated list of protected activities, although they involve state, as opposed to federal government. The latter includes enrolling in state-run public schools or colleges; participating in state-administered programs, state employment; serving on state court juries; traveling in interstate commerce; and enjoying public accommodations.
  • The Justice Department’s authority under 42 U.S.C. section 1985 covers conspiracies to interfere with civil rights, including holding office or carrying out the duties of office, obstructing justice, intimidating witnesses, or otherwise interfering with the judicial system with intent to deny equal protection of the laws; or conspiring to go on the highways or on the premises of another to deprive any person of equal protection of the laws or privileges and immunities; or interfering with the right to vote by threat, intimidation or force. Section 1986 provides for actions against persons who knowingly fail to prevent conspiracies that would violate Section 1985 from being carried out.

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 Shaw

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.

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