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Why the Justice Department Can (and Must) Criminally Prosecute George Zimmerman
A Florida jury’s recent acquittal of George Zimmerman from all criminal culpability in the death of Trayvon Martin has stunned the nation and provoked a crisis in our race relations reminiscent of the Rodney King officers’ state trial fiasco.
President Barack Obama and Attorney General Eric Holder must now decide whether the United States Justice Department will file federal criminal charges against George Zimmerman.
To date much of the commentary on the subject has missed the overall context in which the tragedy occurred and what is now squarely at issue: Whether the backstop of federal protection for: the long drawn-out process of racial integration and reconciliation in America, and its African-American beneficiaries, still endures.
In his statement at a White House press briefing on Friday July 19th, 2013 the president referenced America’s aspiration to continuously perfect our union, reminded the American people of the steady progress we have made in race relations from generation to generation, and stated that his own daughters’ interactions with their friends and classmates demonstrates such progress. “They are better than us,” President Obama said.
The president’s own re-election last November was a further testament to the fact that the nation has partially overcome the legacy of slavery and the multiple generations of Jim Crow and segregation that followed the end of Reconstruction in the aftermath of the Civil War.
One of the reasons why George Zimmerman’s killing of Trayvon Martin has traumatized the nation is precisely because the deep south community in which it took place reflected and (literally) embodied the distinct (though still quite limited) progress Americans have made in race relations over the past half-century.
Prior to the civil rights movement and the landmark legislation that emerged from it, the kind of upscale suburban housing tract in which George Zimmerman resided and Trayvon Martin regularly visited would not have been integrated. It would surely have been “whites only”. And it is equally probable that a teenage “Trayvon Martin” (or African-American of any age) in 1963 would have been refused entry into a convenience store in any “lily white” neighborhood in Seminole County, Florida. (It is a region with a particularly ugly history of racism, one that included a very active Ku Klux Klan chapter. Those white mobsters physically menaced Jackie Robinson during a Brooklyn Dodgers’ spring training game in 1947, and firebombed the residence of the regional president of the NAACP and his wife in 1951, killing them.)
Among the odious discriminatory practices the landmark U.S. civil rights statutes passed in the 1960s outlawed were those used to enforce segregated housing and public accommodations precisely in places such as Sanford, Florida. These “fair housing” and “non-discrimination in public facilities” federal laws (eventually fortified by counterpart state laws, including Florida’s) have been remarkably effective – at least for those in or near the upper middle class. In 2012, the residents at the Retreat at Twin Lakes complex, where Tracy Martin’s fiancé Brandy Green lived with her young son (Trayvon bought the Skittles for him) were 50% white, 20% black, and 30% hispanic. Due directly to the operation of these U.S. civil rights laws, in 2012 young Trayvon Martin could visit with his father and Ms. Green in an integrated housing development and patronize the local 7-11 as a matter of course.
Prior to the fateful night of February 26, 2012, if the entire Retreat at Twin Lakes community could answer the “race question” memorably posed by Rodney King, “Can we all just get along?”, the consensus (basic) answer would have been “Yes, we can”.
And that is what makes George Zimmerman’s killing of Trayvon Martin that night so profoundly wrenching and momentous. For, if you are Trayvon Martin, what is the use of having the RIGHT to visit overnight (or temporarily reside) with your dad and his fiancé in an integrated (predominantly white) housing tract, and to go to- and make purchases at a near-by convenience store, when on either the commute to- or (as here) on the return trip, you can be (racially) profiled as a criminal, stalked and gunned down by a civilian “neighborhood watchman” while carrying the items you purchased?
Plainly, George Zimmerman committed a series of reckless acts (following his initial profiling) that culminated in the killing of Trayvon Martin (someone who had the perfect constitutional and statutory right to be in an integrated neighborhood and take a round-trip walk to patronize a local store). Zimmerman (without any license or training even as a security guard):
* exited his vehicle with a concealed firearm,
* disobeyed dispatcher instructions to stop tailing Trayvon,
* failed to extricate himself while still at a distance from Trayvon by announcing his “neighborhood watch” role (and in the unlikely event it was thereafter necessary, drawing his weapon), and
* after “getting the drop” on Trayvon during (or possibly just-following) the tussle, fired his weapon (loaded with hollow point bullets) instead of simply ordering Trayvon to back off.
In so doing George Zimmerman put the nation’s 50 year record of limited progress in race relations profoundly at risk. And because it is morally and politically imperative to safeguard the federally-sponsored process of racial integration and reconciliation in America, the United States must prosecute George Zimmerman under the applicable U.S. criminal statute – 18 USC § 245 (b)(1)(B) governing “federally protected activities”.
Consider the implications if they don’t:
* “George Zimmerman rules” governing the (formally benign) concept of “neighborhood watch” will be legitimized and proliferate. Soon (to bastardize Che Guevara’s famous dictum), there could be “one, two, many George Zimmermans” (and sadly, a corresponding number of Trayvons);
* How many African-American parents will risk continuing to live in integrated communities (at least ones with a history of racism), if a “neighborhood watch” can operate under George-Zimmerman-(self-decided)-ground-rules (ones which differed fundamentally from those recommended by the local police, which discourage any stalking type conduct and prohibit any – much less armed – pursuit)?
* For those African-American families who stay the course of integrated housing, in states with “liberal” concealed carry and “stand your ground” laws, how many older teens and young adult family members will resist the option to arm themselves for self-defensive purposes?
* Due to the bungled state prosecution of Mr. Zimmerman the overwhelming majority of the African-Americans, joined by a sizeable plurality (if not healthy majority) of their fellow Americans, have been required to witness and endure the release “scot free” of someone who they believe has committed at a minimum involuntary manslaughter – the taking of a life through grossly negligent reckless acts without any valid justification or excuse. And a sizeable minority believe Zimmerman formed an intent to kill Trayvon in advance of doing so and murdered him. This deeply offends the feeling of reverence for the life and limb of crime victims upon which our entire system of prosecution of offenders by government personnel is based. A “vigilante” response towards Mr. Zimmerman (such as the one Mike Tyson unfortunately advocated) is not beyond the realm of possibility.
No good can come of such responses. If the (post acquittal) status quo is allowed to stand, at a minimum the general simpatico that prevailed between “the children of former slaves and children of former slave owners”, in Martin Luther King Jr.’s phrase, will be replaced by perennial acute wariness. In a (very) worst case scenario a series of tragedies could ensue that would promote a vicious white backlash (and black separatism movement) that would threaten much if not all of the gains of America’s second Reconstruction and revive of the discredited doctrine of separate but equal.
Many (mistakenly) believe that a federal criminal prosecution of George Zimmerman is only viable if the U.S. prosecutors can prove that Zimmerman killed Martin “because” Trayvon was of the African-American race. One prong of 18 USC §245 (§245(b)(2)(B)) outlaws harming “because of race” those who avail themselves of state-provided amenities. U.S. prosecutors used this prong of the federal criminal statute to re-prosecute Lemrick Nelson, Jr. and other young African-American perpetrators of the 1991 killing of Yankel Rosenbaum, an orthodox Jew, during an (indiscriminate “retaliatory”) “wilding” incident in the Crown Heights neighborhood of New York City (arguing that Rosenbaum was using the city street). There, as here, justice had miscarried during the state prosecution. See US v. Nelson, 68 F. 3d 583 (2nd Cir. 1995).
However this “because of race” facet is not an element of 18 USC § 245 (b)(1)(B). That section of the U.S. code proscribes private individuals (or government personnel) from (in sum) harming any person “because he is participating in or enjoying any benefit…privilege…facility, or activity provided…by the United States.” (Emphasis added.)
The case law is clear that this prong does not require the prosecution to prove the defendant had any racial animus towards the victim. In US v. Pimental, 979 F. 2d 282, 283-284 (2nd Cir. 1992) Circuit Judge Friedman stated:
Nothing in this [statutory] language even suggests, let alone requires, that there must be a discriminatory motive for interference with the victim’s federal rights. The provision covers “[w]hoever” willfully and forcefully injures “any person” because that person has been participating in any federally protected or administered activity — here … an informant in a counterfeiting investigation. There is no reference to any discriminatory motive in this provision.
There is no doubt that (in 2012) Trayvon, his dad and the other African-Americans who comprised the 20% of the population who resided in the Sanford, Florida upscale housing development (Retreat at Twin Lakes) would not have been residing there, or been permitted to patronize the 7-11 convenience store, except for the vast social and legal changes wrought by the landmark (1960s) federal civil rights laws banning discrimination in residential housing and public accommodations respectively.
Significantly, Trayvon also had the federal constitutional right all U.S. residents enjoy to move around anywhere in their own state or elsewhere in the country: the right to “locomotion” in the Supreme Court’s words in Williams v. Fears, 179 U.S. 270, 274 (1900)). This includes intrastate as well as interstate travel (of any distance). In his concurrence in Shapiro v. Thompson, 394 US 618,642-643 (1969) (text accompanying fn.1), Justice Potter Stewart described the fundamental nature of the right to travel between and within states by adverting to:
* Truax v. Raich, 239 U. S. 33, 39, a 1915 Supreme Court case that involved the rights of an Austrian immigrant to “enter and abide” in any state of the union (emphasis added); and
* United States v. Guest, 383 US 745 (1966) at 760, n. 17. Stewart stated: “As we made clear in Guest, [the right to interstate travel] is a right broadly assertable against private interference as well as governmental action. Like the right of association, NAACP v. Alabama, 357 U. S. 449, it is a virtually unconditional personal right, guaranteed by the Constitution to us all.”
Although it is not impossible that a highly conservative (politicized) Supreme Court (narrow) majority might someday decide otherwise, the federal civil rights laws outlawing housing and public accommodation discrimination, plus the fundamental federal constitutional right to “locomotion” (moving around) Trayvon was availing himself of- as he attempted transit from his dad’s fiancé’s residence to the store and back, are fully sufficient “benefits” and “privileges” provided by “the United States” to support a federal indictment of Zimmerman under 18 USC § 245(b)(1)(B).
Would a federal jury convict Zimmerman? There are as many opinions as there are people regarding the true attitude of George Zimmerman towards African-Americans in general and his specific mindset towards Trayvon Martin that fateful evening. Two things however are certain: If Trayvon hadn’t been an African-American visiting in an integrated neighborhood and out commuting to the store, George Zimmerman wouldn’t have profiled Trayvon as an African-American criminal worthy of Zimmerman’s attention as a “neighborhood watchman”. And Trayvon would be alive today.
In a very real sense, then, Zimmerman fixed his attention on Trayvon simply “because” Trayvon was availing himself of his U.S. civil rights to commute on foot to the store to make a purchase in a (predominantly white) integrated community. This conclusion is fortified both by:
* evidence that Zimmerman did in fact harbor animus towards African-Americans; Zimmerman’s own cousin (designated Witness #9) so attested, as does a (seemingly) racial epithet George uttered “under his breath” to the 911 dispatcher; and
* George’s clearly audible complaint to the 911 dispatcher: “they always get away”. In the latter remark Zimmerman is affronted by the fact that the individuals who come under the suspicion of his (untrained, evidently paranoid) eye, are exercising their constitutional right to move around in the community. (This implies George would have less of a problem with African-Americans who did not venture outdoors on foot.)
Indeed, Zimmerman’s truculent “neighborhood watch” approach to those he suspected might be a criminal would constitute a menace to anyone (of any race) exercising his federal constitutional right to walk around his own community, regardless of whether Zimmerman was motivated by racial animosity. The punishment and deterrence of such civilian recklessness in the guise of “neighborhood watch” activity is reason enough to federally prosecute Zimmerman.
Perhaps the most conservative approach for federal prosecutors to take would be an indictment in the alternative under both main prongs of 42 USC §245(b) – the “federally protected activities” prong that does not require proof of racial animus, and the prong that explicitly requires racial motivation and deprivation of state amenities. As to the latter, Trayvon, like Yankel Rosenbaum, used public streets to commute to the 7-11, and Florida has its own “fair housing” civil rights law. After hearing all the evidence and arguments, the jury could be given carefully drawn jury instructions reflecting both theories of the case.
Fortunately, the George Zimmermans of the world do not get to make their own so-called “neighborhood watch” rules (ones that give the entire concept a bad name), nor can they be allowed to abrogate other people’s civil rights with impunity. Most especially, other peoples’ right to exercise their civil rights and maintain their lives.
In a federal criminal prosecution Mr. Zimmerman would still be able to assert that he killed Martin in self-defense. However, under federal law (as under Florida law even today) Zimmerman’s self-defense argument would fail if a jury determined that Zimmerman’s stalking of Martin started the confrontation. (Florida prosecutors failed to vehemently protest Judge Nelson’s decision not to give that jury instruction.) And, as to that and a myriad of other issues in the state criminal case, it is unimaginable that seasoned federal criminal prosecutors would permit Mr. Zimmerman’s “dream team” defense attorneys to run circles around them the way Zimmerman’s counsel did Florida’s bumbling prosecutors. (Among the state prosecutors’ monumental errors was to introduce materials in which Zimmerman told his version of events without having to endure any cross-examination.)
For President Obama and Attorney General Holder this is a (if not the) “defining moment” of their tenures in the nation’s highest offices: The president’s thoughtful statement of July 19th and the constructive (but too-limited) initiatives he alluded to, must not be a sop the African-American community and all concerned citizens receive INSTEAD of justice for Trayvon Martin and his parents.
To prosecute under either or both prongs of 18 USC § 245(b), Attorney General Holder or another senior U.S. Justice Department official has to certify that “in his judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice.”
Few propositions regarding matters of state have ever been more self-evident.
Eric C. Jacobson is a public interest lawyer living in Los Angeles.