For Aggrieved Martin Family, Remaining Legal Options Are Limited

There are various criminal federal civil rights and hate crime laws available to prosecutors dating back to the post Civil War period, but all have material limitations that substantially impact its application toward George Zimmerman.
07/15/2013 10:21 am ET Updated Sep 14, 2013

Saturday's acquittal of George Zimmerman, 29, for the February 2012 killing of
teenager Trayvon Martin in Sanford, Florida leaves few legal options for his devastated family and supporters. Hundreds of thousands have protested the verdict and signed a petition advanced by the NAACP calling for federal intervention. NAACP director Ben Jealous stated that there was "reason to be concerned that race was a factor" in Zimmerman's involvement with Trayvon Martin, but proving that now in court is a formidable task.

Zimmerman's acquittal on state criminal charges of second degree murder and manslaughter mean that Florida is precluded from retrying Zimmerman again for the crime. The Fifth Amendment's prohibition of double jeopardy prevents the state from trying a defendant twice for the same offense or a lesser included one arising from the same matter after an acquittal. This prohibition does not preclude a civil cause of action against Zimmerman, or even a federal criminal trial if a federal crime can be alleged, but this will be extraordinarily difficult, from the facts of this case. Federal authorities continue to look into the matter, but an FBI investigation previously "found no evidence that racial bias was a motivating factor" according to the Miami Herald. Such a finding, if sustained, would preclude any federal prosecution. Zimmerman attorney Don West told ABC that there "was nothing to suggest that this was a hate crime."

Federal Hate Crime Law Has Significant Requirements
There are various criminal federal civil rights and hate crime laws available to prosecutors dating back to the post Civil War period, but all have material limitations that substantially impact its application toward George Zimmerman. In the past the federal government has had success in trying civil rights case following unsuccessful state prosecutions, but those cases often involved police or more overtly stated racial motives. Examples include the Rodney King beating case in Los Angeles and the religiously motivated stabbing of Yankel Rosenbaum during a Brooklyn protest.

The first and most likely law is the newest, the Shepard-Byrd Hate Crimes Prevention Act, found at 18 USC 249, which was signed into law by President Obama in October 2009. It broadened the number of protected groups and circumstances where the federal government may prosecute a civil rights violation from existing law and was the first expansion in four decades. It basically supplanted 18 USC 245 Federally Protected Activities, a 1968 statute which was far more restrictive in the activities that are protected from violent racial interference. There is no generally applicable murder or manslaughter statute under federal law, because the constitution limits federal authority over criminal matters. The Shepard-Byrd Act makes it a federal offense under limited circumstances to commit a violent offense on the basis of race and other characteristics:

Offenses involving actual or perceived race, color, religion, or national origin.-- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person....
(b) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(i) death results from the offense

Federal prosecutors face the challenge of proving a substantial racial motive in the case beyond a reasonable doubt. As Attorney General Eric Holder previously stated, "We have to prove the highest standard in the law" of specific intent. Usually this can be established by overt racist statements by the defendant, membership in an organized hate group or some pattern of activity showing a motive of depriving people their rights because of their race. Zimmerman's self-defense motive, which apparently served him well in the state case, would be a formidable obstacle in a federal prosecution, even though the government need not show racial prejudice as the sole motivating factor.

In addition to proving the specific intent of a racial motivation beyond a reasonable doubt, the federal government must also establish beyond a reasonable doubt that the offense took place in a circumstance that the federal government has jurisdiction over such as travel or the use of a facility or instrumentality of interstate travel. The Constitution limits Congress' authority to enact legislation that does not have a federal hook, such as regulating interstate commerce. The most likely hooks in this case are the interference of Trayvon Martin's right to travel on streets and sidewalks connected to an interstate road system, or to engage in economic activity (purchasing snacks) and/or his killing by use of a firearm that has traveled interstate:

Circumstances described.-- For purposes of subparagraph (A), the circumstances described in this subparagraph are that--
(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim--
(I) across a State line or national border; or
(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);
(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
(iv) the conduct described in subparagraph (A)--
(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.

Lastly, Congress has also placed other limitations on the use of this statute requiring certification of any prosecution by the Attorney General or his designee:

Certification Requirement.--
(1) In general.-- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that--
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal Government assume jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or
(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

Other federal statutes exist, but all are limited because they require a conspiracy of two or more parties (18 U.S.C. 241), the involvement of government officials in the commission or conspiracy (18 U.S.C. 242), or interference with housing rights (42 USC 3631). Interestingly, 18 U.S.C. 242 pertaining to government officials does not require the establishment of a racial motive.

Wrongful Death Civil Suit Under Florida Tort Law
The Martin family may be able to sue Zimmerman and possibly others civilly for the tort of wrongful death in civil court in Florida, but is likely to face a challenge of immunity from Zimmerman. It has been reported but not confirmed that the family has already settled with the local homeowners association. A tort is a civil wrong committed against another either intentionally or by accident that causes the victim harm. While the burden of proof in civil cases is much easier to achieve, Zimmerman's actual ability to pay damages is probably low. A verdict could, however, impact any money he would possibly get from books or movies. The burden of proof in civil cases is much more attainable, as it only requires the plaintiff to prove that their version of the facts more likely occurred than that of the defendant's.

Torts are wrongful acts for which the law recognizes a civil remedy -- usually, but not always, a compensatory one in the form of money damages assessed against the wrongdoer. The defendant in a civil case does not have a risk of imprisonment for the harmful act. However, because criminal punishment is off the table, so too are some criminal protections, like the Fifth Amendment's protection against self incrimination, so a defendant can be forced to testify, and evidence from the criminal case may be used in the civil trial.

Unlike the situation in most contract or family law cases, tort law imposes a duty upon people to conduct themselves in a reasonable manner in their dealings with the public at large, including people who the defendant does not necessarily know. All tort claims require the breach of an existing duty that results in the causation of harm to a person or property. Most of the primary tort actions derive from centuries-old common law -- that is, judge made law, rather than legislative enactment. Nearly every American state has since codified these traditional tort claims into statutes.

Unlike American criminal cases, any competent person can bring a tort law case on their own against a wrongdoer, as long as the alleged wrongdoing fits into a particular cause of action recognized as a tort claim. Sometimes there may also be a particular federal or state statute which specifically recognizes a right to sue in cases where someone is victimized because of group status.

Traditionally torts can be divided into three areas, two of which are relevant to criminal cases: intentional and negligent torts. Intentional torts generally require a purposeful act by the wrongdoer to cause a harmful result, while negligence actions involve the absence of the exercise of reasonable care where a harm is foreseeable from the conduct. Intentional tort claims are pursued against those who directly and purposely cause a harm. The most likely cause of action under Florida law is for that of wrongful death:

The action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death... Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.

However, as commenters to this post have pointed out, Florida's use of force law would likely prevent a wrongful death claim from proceeding because self defense is a basis for immunity.

There are legal options available to the aggrieved Martin family, but all are fraught with significant obstacles. Additionally, Martin's survivors could conceivably face a lawsuit from Zimmerman for his injuries in the confrontation. Zimmerman could also sue others for threatening or defaming him.

Hopefully, the convoluted and frustrating path of legal cases, however, will not be the only legacy of this heartbreaking tragedy which has touched so many people. Perhaps, we as a nation can exhibit the same grace that the Martin family did in our efforts to arrive at a moral plane where such violence never extinguishes a young life again.

Editor's Note: Prof. Levin has testified before Congress on civil rights legislation as well as authoring Supreme Court briefs on the issue. He has met with two Attorneys General to discuss hate crime statutes.