Could Zimmerman Be Subject to Federal Charges?

The Hill reports “Attorney General Eric Holder faces a crucial decision on whether to press federal civil rights charges against George Zimmerman,” after Zimmerman’s acquittal in the trayvon Martin murder trial. Some activists are pushing hard for the Justice Department to take action. The Rev. Al Sharpton, for instance, made the case for federal prosecution this morning on NBC’s “Meet the Press.” But what, precisely, do activists expect Holder to do?

Most legal analysts thought that the second-degree murder charge was a stretch given the available evidence. The jury seems to have agreed, and would not even convict Zimmerman of manslaughter for Martin’s killing. A federal hate crime prosecution would be even more difficult because prosecutors would have to show that Zimmerman was motivated by racial animus. Moreover, [one portion of] the federal hate crime statute would also force federal prosecutors to show that Zimmerman’s alleged crime has a sufficient nexus to interstate commerce, though some courts might be satisfied so long as the prosecutor shows that Zimmerman’s gun had, at one point, traveled in interstate commerce. [Under 18 U.S.C. section 249(a)(1), however, no such nexus to commerce is required. Congress invoked its power under the Reconstruction Amendments -- in particular the 13th Amendment -- as the basis for this authority. Under this theory, the federal government may prosecute private acts of racially motivated violence pursuant to its authority to eliminate the badges and incidents of slavery. This power has been rarely invoked, but was recently upheld by the U.S. Court of Appeals for the Eighth Circuit in U.S. v. Maybee, although the court stressed the "narrow" nature of the constitutional challenge.]

In the end, I expect the Justice Department to demur. While Holder may make additional comments stressing the importance of this case and the serious with which federal officials are looking into possible federal crimes (as he has before), I think the Justice Department will decide it isn’t worth making this a federal case.

This won’t necessarily mean the end of legal jeopardy for Zimmerman, however. I would not be surprised if Martin’s family soon filed a wrongful death case against him in which the burden of proof would be easier to meet.

UPDATE: I mistakenly relied solely on 18 U.S.C. section 249(a)(2) in my characterization of the federal hate crimes statute. The statute actually has two relevant provisions, one which requires a nexus to interstate commerce (section 249(a)(2)), and one which does not (section 249(a)(1)). I regret the error and have revised the post accordingly.  There is also an argument (which I do not address) that the federal government could try to prosecute Zimmerman under  18 U.S.C. Section 245 (b)(2)(B).

SECOND UPDATE: For more on Congress ability to prohibit racially motivated violence under the 13th Amendment, see the opinion of the U.S. Court of Appeals for the Tenth Circuit in United States v. Hatch, decided earlier this month.

THIRD UPDATE: Even if he’s not federally prosecuted, or the subject of a civil suit, Zimmerman could be back in court — as a plaintiff against NBC news.