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Federal Criminal Civil Rights Laws and Private Actors

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In the wake of the Zimmerman acquittal, there is predictable talk about invoking the "dual sovereignty" loophole in the double jeopardy rule and prosecuting him for a federal civil rights violation.  (Update: Arian Campo-Flores, Lynn Waddell, and Ashby Jones have this story in the WSJ.  "The Justice Department said Sunday it would weigh whether to file federal criminal charges against George Zimmerman....")

A commenter to Bill's post on the verdict asks how that is possible in the absence of state action.  Good question.

The FBI has this page with plain-English explanations of the principal federal criminal civil rights laws.  (Well, plainer English, compared to the actual statutes.)

Because the federal government, unlike state governments, is one of enumerated powers, any law Congress passes has to have an identifiable authorization in the Constitution.  In United States v. Lopez (1995), the Supreme Court reversed a prosecution under the Gun-Free School Zones Act of 1990 for lack of such a power.  Taking a gun to school did not have enough connection with interstate commerce to support a Commerce Clause argument for federal authority.  In United States v. Morrison (2000), the Court struck down a federal civil remedy for rape under the Violence Against Women Act.

Federal civil rights prosecutions against state actors (e.g., police officers) usually come under 18 U.S.C. §242, which the FBI summary describes thusly (emphasis added): "This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S."  The "color of law" element limits the act to people acting under authority of the State, bringing the statute within Congress's power under §5 of the Fourteenth Amendment to enforce the prohibition on deprivation of rights by States.  "Color of law" is sometimes a stretch, but it is extremely doubtful it could be stretched far enough to cover Zimmerman.  So what's left?
There is 18 U.S.C. §241, another remnant of the Ku Klux Act passed during Reconstruction.  "This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same)."  Nope, no conspiracy or second person here.

There is the considerably more recent Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, 18 U.S.C. §249.  Again from the FBI summary:

This statute makes it unlawful to willfully cause bodily injury--or attempting to do so with fire, firearm, or other dangerous weapon--when 1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person, or 2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.
The "because" clause would allow transformation of this case back into the racial one it was thought to be in the beginning.  There are two problems, though.  Factually, the evidence of racial animus is very weak, to put it mildly.  It's enough for the race-baiting Lester Maddoxes of our time, who don't need facts, but not enough for probable cause.

[Updated] What about interstate commerce,
the federal constitutional hook the Supreme Court found lacking in LopezOn the face of the statute, the commerce requirement only applies to clause (2), with the theory being that Congress's antislavery power under the Thirteenth Amendment is sufficient to enforce clause (1).  In the twenty-first century, that is an even bigger stretch than the idea that a gun in a school affects interstate commerce.  I believe the statute will eventually be held to have reached too far in this regard, although the Tenth Circuit did uphold it on this theory on July 3 in United States v. Hatch.

If a commerce connection is constitutionally required, is there one here?
Is there any greater impact on interstate commerce here than in Lopez and Morrison?  The post-incident media circus has been good for ratings nationwide, but I doubt that counts.

Sanford, Florida, is clearly not "federal special maritime and territorial jurisdiction," which includes military bases, ships at sea, and other places where the Constitution gives Congress general legislative authority.

Will the Obama/Holder DoJ bring a prosecution anyway despite this issues?  I can't rule that out.  Would they be able to get a grand jury to indict?  Everyone knows the grand jury is no longer the protection against unwarranted prosecutions the founding generation thought it to be.  Would it survive a pretrial motion to dismiss the case?  Very doubtful.

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I also doubt that any portion of the condo complex where Zimmerman shot Martin is a "public facility." (See, United States v. Nelson, 277 F.3d 164, fn.25 (2002).)

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