Federal Criminal Charges for George Zimmerman?

Last week, a Florida jury acquitted George Zimmerman of all charges in connection with the killing of Trayvon Martin. Some are now calling for Zimmerman to be charged federally. In fact, according to the New York Times, “[t]he Justice Department said Sunday that it was restarting its investigation” into the matter. However, I seriously doubt that federal charges are likely to be forthcoming, for the reasons below.

No double jeopardy problem. It’s important to note at the outset that a federal prosecution is possible, in the sense that there’s no constitutional barrier to it. See, e.g., Heath v. Alabama, 474 U.S. 82 (1985) (noting that under the “dual sovereignty doctrine,” when a single act violates the laws of two different sovereigns, both may prosecute, and that “the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government”). But I don’t think a federal prosecution is probable, for two reasons.

No federal charge fits the facts. First, I’m not aware of a charge that fits the facts. There are two federal crimes that have been widely discussed as possible charges, and both strike me as seriously uphill battles for the government.

  • Deprivation of civil rights. Under 18 U.S.C. § 242, it is a crime for a person “under color of any law” to deprive another of “any rights . . . protected by the Constitution or laws of the United States . . . by reason of [the person’s] color, or race.” Perhaps one could argue that Zimmerman deprived Martin of life and liberty without due process. But did he act “under color of any law”? Because of that provision, this statute is used almost exclusively to prosecute law enforcement officers and other public officials. In an important civil rights era case, the Supreme Court ruled that the statute also covers private persons who act in concert with state actors. United States v. Price, 383 U.S. 787 (1966) (holding that men who coordinated with a sheriff to kill civil rights activists were properly charged under this statute). But Zimmerman acted on his own, not together with police.
  • Hate crime. Under 18 U.S.C. § 249, it is a crime willfully to “cause[] bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person.” This charge might be a slightly better fit, because there is some evidence that Zimmerman’s initial perception of Martin was influenced by Martin’s race. However, the Florida jury appears to have concluded that the reason Zimmerman shot Martin was that Martin was punching him in the face and pounding his head against the pavement. In other words, the reason that Zimmerman “cause[d] bodily injury to” Martin was self-defense, not Martin’s race. A federal jury might see things differently, but the result of the Florida trial suggests circumspection.

The Petite policy may not allow further prosecution. Even if federal prosecutors can make out a federal case against Zimmerman, a second barrier to prosecution is the Dual and Successive Prosecution Policy followed by the United States Department of Justice and codified at section 9-2.031 of the United States Attorneys’ Manual. Because the policy was mentioned by the Supreme Court in Petite v. United States, 361 U.S. 529 (1960), it is widely known as the “Petite policy.”

Generally, the policy provides that before a federal prosecution may be brought based on “substantially the same act(s)” that formed the basis of a state prosecution, the Department must conclude that a “substantial federal interest” was “left . . . demonstrably unvindicated” by the state prosecution. The fact that Zimmerman was acquitted does not mean that the federal interest was “unvindicated” – the policy provides that “[i]n general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest.”

There are exceptions, such as for corrupt state proceedings or for the “unavailability of significant evidence,” but it isn’t clear that any of the exceptions would apply in this case. And while the policy is a prudential one that the Department has the power to change, I doubt that the Attorney General would change a decades-old policy to facilitate a single prosecution.

Conclusion. I suspect we’ve reached the end of the road as far as criminal charges against Zimmerman. Of course, a civil suit by the Martin family may be forthcoming and would present entirely different considerations.

5 thoughts on “Federal Criminal Charges for George Zimmerman?”

  1. I believe the DA in the Zimmerman case; threw their case because they did not want to charge him in the first place,but of course that’s my opinion.

  2. Doing away with the “absolute immunity” of prosecutors from civil damages for purely political or baseless charging decisions might help.
    The charge(s) has become the punishment, not the outcome. As one exonerated defendant asked, “where do I go to get my reputation back?”

  3. I don’t doubt that Mr. Zimmerman shot Mr. Martin in self-defense, BUT THIS IS NOT ‘the whole story in my opinion’. As far as the self-defense laws go it appears their (Fla.) law does not prohibit a person from picking a fight by stalking, waiving a fire arm in a person’s face, ‘acting as if they were a member of the Fl. Law Enforcement community’ who HAVE A RIGHT (I disagree with) ‘to follow, stop and question (investigate) persons based on only a personal opinion’, and this failure on the State Legislature’s part IS the underlying problem.

    I strongly support a person’s right to the use of whatever force necessary to defend themselves, their property, and family up to and including deadly force. I do not support the use of a loop hole in the law that would allow anyone to provoke a fight then kill under the pretext of defense, and this is what appears to have happened (‘in my opinion’).

    I feel a grave injustice has been done, but feel it is in a failure of the Law itself being improperly used as a defense. The Laws failure to prohibit the possibility of provoking a fight then killing under the pretext of self-defense is a serious issue that needs to be resolved. I feel it is more a failure in the ‘letter of the law’ and not so much the ‘spirit of the law’. The ‘spirit of the law’ is to allow People to defend themselves, property, and family against ‘dangerous threats’ (In my opinion) which I feel is a good thing.

    It appears that the ‘letter of the law’ fails to provide an adequate remedy for potential abuse by a person that ‘may somehow provoke a fight’, get the fight, be losing the fight which they provoked, then draw on the ‘sprit of the law’ and claim self-defense, and use it to justify the killing of a person. This tragedy could well establish a precedent for abuses of the castle laws in several states. Go ahead and provoke a fight, allow yourself to get hit, fall down and shoot a person seems to be the result of this case.

    • Two things I would say here..It is sad we live in a society that requires us to think about our safety and that of our families always. I was buying ice cream at a local mall here just last year and as my family sat outside in a commons area with a they were targeted and surrounded like prey by a group of 5 young hoodies. It was luck that I finished my purchase and came around the corner just in time as one was already touching my daughter….As I yelled out the cowards ran out a back door(planned). I ran outside with my drawn gun and they jumped in a waiting car. Now it truly is horrific that we live in a failed society where this happens on an hourly (minutes really) in our country. The democrats can stand up and take a bow for this accomplishment.. But we do live in this society.

      It is shown without argument that in states where guns are legally carried , crime is not so easily forced upon innocents…. Stand your ground is a little open ended and has to be watched closely for abuses..But I suggest to you that the abuses pale pale pale in comparison to walking around giving all your ground to predators that have open season…Do you really think that Zimmerman was getting that beat down that night by a white guy he would have stopped to think, “Wait I should not shoot this guy because he is white”?..Do you think my reaction and anger would have been different if it was a group of white guys preying on her?…..My bullets are color blind sir..ALWAYS.

      Now my last point, the castle doctorine. I could be wrong and am always eager to correct my ignorance, but I think the castle doctorine applies just to your home. Maybe car??..Not sure…I have a sign on all my doors that states,” This door is locked for your protection, not mine”. It has a large barrel pointing at the reader..Again I wish we lived in a country that was not so messed up with social “programs” that have grown frankinstiens amoug us and turned so upsidedown in our approach to moral living. But we do, and for that reason it is imparative we are allowed to protect ourselves…Thanks for you insight


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