Four years ago, Congress
adopted a stronger federal hate crimes act to empower federal
prosecutors to go after violent crimes of bias. Since then, the Obama
administration has won convictions against more than 140 defendants who
chose their victims because they were gay, disabled or members of racial
or religious minorities.
But a successful federal prosecution of Zimmerman would require clear
evidence that he set out to attack the unarmed Martin because he was
Although that is exactly what
many Americans see in the fatal shooting of the 17-year-old, it can be
very hard to prove in court, legal experts said. So far, prosecutors
have not shown evidence that Zimmerman acted out of racial bias.
"I'd be very, very surprised if we took it," said one federal civil
rights prosecutor, speaking anonymously because no decision had been
made. "It's a very tough, tough case to sell" because of the lack of
"The difficult element would be proving racial motivation beyond a
reasonable doubt," said University of Michigan law professor Samuel
Bagenstos, a former civil rights attorney in the Obama administration.
"In most of these [hate crime] cases, you have someone who had made
racial statements or you have a group who goes looking to attack a
person based on their race."
But in the confrontation between Zimmerman and Martin, "no one else was there who could testify about the motivation," he said.
Atty. Gen. Eric H. Holder Jr. said at the NAACP
convention in Orlando, Fla., on Tuesday: "We are mindful of the tragic
and unnecessary shooting death of Trayvon Martin last year — in Sanford,
just a short distance from here."
He reiterated that federal prosecutors had an "open investigation"
into the shooting. "While that inquiry is ongoing, I can promise that
the Department of Justice will consider all available information before
determining what action to take," he said.
Holder said laws like Florida's "stand your ground" statute, which
allow someone who feels in danger to respond with violence without
retreating, must be "examined" because they eliminate "the common-sense
and age-old requirement that people who feel threatened have a duty to
retreat, outside their home, if they can do so safely."
Benjamin Todd Jealous, president of the National Assn. for the
Advancement of Colored People, has called on Holder and the Justice
Department to prosecute Zimmerman on a hate crime charge.
"It is clear George Zimmerman's bias played a major role in the
events that led" to the shooting, Jealous said. He noted that Zimmerman
had made dozens of calls to police, "disproportionately about young men
of color who he thought were suspect." He also noted that Zimmerman said
on the night of attack, "These punks always get away with this."
Jealous agreed the law required evidence of racial bias. "We believe
there was enough evidence to satisfy that standard," he said.
Some advocates also have called for charging Zimmerman with violating
Martin's civil rights. But a civil rights count is limited to
defendants who act "under color of law" — that is, wielding government
One such example involved four Los Angeles police officers who were acquitted in 1992 in the beating of motorist Rodney King.
Federal officials later charged them with violating King's
constitutional rights; two officers were convicted. Zimmerman was not a
police officer when he got out of his car to pursue Martin.
The 2009 hate crimes act was named for Matthew Shepard,
a young Wyoming man who was brutally beaten and left to die because he
was gay. The law made it a federal crime to "willfully cause bodily
injury to any person" with a weapon or explosive device "because of" the
person's race, religion, national origin, disability, gender, gender
identity or sexual orientation.
In early July, the U.S. court of appeals in Denver upheld the law as
constitutional. That ruling came in the case of three white supremacists
who had abducted a developmentally disabled Native American and
brutally abused him, including branding a swastika on his skin with a
hot coat hanger. Two of the men were sentenced to 8 1/2 years in prison, while the third received a lesser sentence.
Professor Bagenstos was the deputy to the Justice Department's civil rights chief, Thomas E. Perez, during Obama's first term. He said a successful prosecution would require more evidence than has come to light.
"Unless there is significant new evidence, I'd say it would be
unlikely the department would bring a hate crimes charge," Bagenstos
said. "It would be very difficult to win, and they don't bring charges
they don't think they can prove."