« Some more thoughts on self-defense, Stand Your Ground, and Zimmerman | Main | Covert Searching and the Fourth Amendment »

Sunday, July 14, 2013

What's next?

As people react, seemingly peacefully, to the George Zimmerman verdict, it is worth considering what happens next.

The NAACP and other groups are urging the Obama Administration and DOJ to file federal civil right charges against Zimmerman, which has right-wing sites abuzz and screaming about double jeopardy. But what law could he be charged under? Not § 242, because Zimmerman did not act under color of state law (thus depriving the right wing of its most obvious demagogic analogue--the LAPD officers who beat up Rodney King). Also not § 241, because Zimmerman acted alone (and I'm not sure a purely private conspriracy still is possible under current understandings of § 5 of the Fourteenth Amendment). The only possibility is the federal Hate Crimes statute, which prohibits anyone, even if not acting under color of law, from willfully causing bodily injury because of the victim's race. If so, was that statute violated here? Assume Zimmerman followed and shot Trayvon Martin because Martin seemed "threatening" or "dangerous" and that Martin seemed "threatening" because of his race. Is that the same as following him "because of [his] actual or preceived race"? Also, how does federal law treat self-defense?

The other likely development is a civil lawsuit by Martin's family, which is being considered and was mentioned in the comments to Dan's first post. A civil action is, of course, governed by a lower standard of proof, involves more extensive discovery, and required testimony (deposition and trial) from Zimmerman himself. It also brings the state Stand Your Ground Law, and the pre-trial immunity it provides, back to the forefront. (By the way, if the civil suit were brought in federal court, this would be an interesting Erie hypo).

Posted by Howard Wasserman on July 14, 2013 at 03:35 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference What's next?:



"The most fundamental of civil rights — the right to life — was violated the night George Zimmerman stalked and then took the life of Trayvon Martin. We ask that the Department of Justice file civil rights charges against Mr. Zimmerman for this egregious violation."

I don't see how that could be read as anything but seeking prosecution under § 242. No reference to hate crimes.

Posted by: Derek Tokaz | Jul 15, 2013 2:21:20 PM

Brad: It may be easier to win than a motion for summary judgment, because the court (presumably) is going to play fact-finder (explicitly), rather than just looking for factual disputes.

Derek: Again, my guess is they're thinking of a general hate crime prosecution, which does not require state action. I don't doubt there isn't some political grandstanding. But that's on both sides--conservative commentators and officials are screaming about this as a real possibility and saying the Obama DOJ is going to trample on the Fifth Amendment, whereas surely their attorneys also know § 242 doesn't apply.

Posted by: Howard Wasserman | Jul 15, 2013 1:53:17 PM

The NAACP's petition seems entirely disingenuous. Surely their attorneys know 242 doesn't apply, and I have a hard time imagining anyone who's been involved in a civil rights group for very long doesn't know that the law only applies to deprivations of civil rights under color of law.

It seems like the only plausible reasons for such a petition would be pandering to their base, or setting themselves up for another loss so they can play the victim card. Either way, they appear to be exploiting people's emotions and lack of legal knowledge. Not cool.

Posted by: Derek Tokaz | Jul 15, 2013 12:57:11 PM

On the criminal side, the defendant can ask for a pre-trial evidentiary hearing before a judge. In that hearing the burden is on the defendant by a preponderance of the evidence, and if the defendant wins the charges are dismissed. Dennis v. State, 51 So. 3d 456 (Fl. 2010)

In a civil context, it doesn't seem like that procedure buys the defendant all that much more than a motion for summary judgement, although winning it does trigger a fee shifting provision.

Posted by: brad | Jul 15, 2013 10:21:54 AM

I see I'm stumbling backwards into the topic that was correctly raised by Howard initially. But the confusion of 'confused' seems to be a real problem. Here is a law professor who doesn't seem to be keeping track of the burdens of proof either:

" 'One of the things that Stand Your Ground does, is it says that if you prove by a preponderance of the evidence, which is 51%, that you acted lawfully under Stand Your Ground you can’t be prosecuted criminally [or] sued civilly, and he’s just gotten a not guilty verdict,' [the professor] said. 'And so it’s pretty clear he’s going to win that.' "


Since in 49 states a not-guilty verdict only signifies 2-10% exoneration, not 50%, this is a puzzling comment. I wonder if the reporter got it wrong somehow.

Posted by: Jim von der Heydt | Jul 15, 2013 9:44:11 AM

To 'confused': Prof. Markel points out in another thread that 'immunity' is the term used when a defendant invokes the Florida "stand your ground" doctrine, and prevails in a pretrial hearing on that issue. Such a result can abort the trial.

It seems likely that the O'Mara comment you heard was referring to that kind of immunity, not any statutory immunity stemming from a criminal acquittal.

Posted by: Jim von der Heydt | Jul 15, 2013 9:28:01 AM

It makes no sense for an acquittal to grant civil immunity. That would mean a more-likely-than-not tortfeasor against whom no charges are filed has to pay his victim, but a more-likely-than-not tortfeasor indicted and tried because the facts put him closer to being guilty beyond a reasonable doubt pays nothing.

Simply can't be right.

Posted by: Jim von der Heydt | Jul 15, 2013 9:11:15 AM

The statute isn't a model of clarity, and I couldn't find any caselaw. The Florida Supreme only ruled on the criminal immunity procedure in 2010 (5 years after passage) so it maybe that there is no case law yet.

Posted by: Brad | Jul 15, 2013 1:27:29 AM

I have read and heard from more than a few sources that an acquittal in Florida gives immunity from civil suits. But then I saw in the post-verdict press conference that O'Mara said they would seek and, very confidently, that they would obtain immunity if anyone files charges.

Does anyone know how the Florida law works? What are the requirements and how easy/common is the granting of immunity?

Posted by: confused | Jul 14, 2013 6:16:56 PM

The comments to this entry are closed.