The Corner

What Federal Law Has Zimmerman Violated?

I’m no civil-rights lawyer, but it is hard to see how the federal government could win a case against Zimmerman (which is why the Justice Department is using the slippery phrase that it is “investigating” him, rather than bringing charges), particularly after he was just unanimously acquitted in Florida. There is no double jeopardy here, but the prosecutors in Florida, who were the most familiar with the evidence and the court, could not even get one juror to side with them.

Even more difficult than the facts is the underlying “crime.” What federal law has Zimmerman violated? Why should the federal government intervene in murder, the prosecution of which is the job of the states? The main civil-rights laws are targeted at defendants who deprive others of their federal rights acting under “color of law” — i.e., acting on behalf of the state.

That is the whole point of the Reconstruction Amendments, which the civil-rights laws implement: to prevent states from depriving their residents of their constitutional rights. The Reconstruction Amendments do not make private discrimination a crime — there is no real federal interest at stake if you don’t like your neighbor because of his race. Zimmerman was not acting as an officer of any government — indeed, the state of Florida just tried to prosecute him for the crime.

DOJ may consider some other possibilities, such as a federal hate-crimes law or laws prohibiting private conspiracies to deprive people of their federal rights. Prosecuting Zimmerman under these laws, I think, would pose serious constitutional problems.

Here is a crime that is purely intrastate, by one private individual against another private individual. There is no broad conspiracy to frustrate federal law, perhaps in silent cooperation with state authorities, as happened in days gone by with the Klu Klux Klan.

If Zimmerman was motivated by racial bias — however reprehensible that would be if true — it is still difficult for me to see the interest and power of the federal government at stake. Zimmerman could claim that the federal government has no constitutional authority to pursue him, and might even have a fair chance to litigate that up the federal courts — maybe all the way to the Supremes.

Here’s a listing of the criminal statutes enforced by the Civil Rights Division of the DOJ. Take a good look and see if there’s anything that could even come close to applying to Zimmerman. It’s hard to see what federal right was violated — unless one thinks it’s the right to life, in which case the Justice Department should be investigating every murder in the country where the victim is a minority.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. He is the author of Defender-in-Chief: Donald Trump’s Fight for Presidential Power.


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