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.