Hate-crime charges for Zimmerman?
The hate crimes law President Barack Obama championed and signed in 2009 makes it easier to pursue a federal criminal case against George Zimmerman over the death of Trayvon Martin.
But whether or not the the ongoing Justice Department investigation into Martin's killing results in a prosecution under the statute - which many experts doubt it will - the measure may soon grab the legal spotlight anyway: There's a growing sense that one of several simmering challenges to the hate crimes law will be taken up by the Supreme Court.
That's because the expansion Obama green-lighted in 2009 is under attack by conservative legal activists who contend the Constitution doesn't give the federal government the authority it now claims to prosecute race-based hate crimes anywhere they occur, even when the events in question have none of the traditional elements used to invoke federal jurisdiction.
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And there are signs the courts may be sympathetic to that argument.
"Hate crimes often get a lot of public attention and every time someone is acquitted there is a call for federal authorities to step in," said Gail Heriot, a member of the U.S. Civil Rights Commission and a law professor at the University of San Diego. "That gives me concern...I don't want to see a world where the prosecution gets two bites at every apple."
When Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in the East Room in October 2009, it was the first-ever inclusion of crimes based on sexual orientation - an issue so controversial it lingered in Congress for more than a decade - that grabbed the headlines.
But that addition wasn't the only notable change to the law. The other was the removal of a longstanding requirement that such crimes have some connection to interstate commerce, or to "federally protected activities" such as voting or applying for federal benefits.
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The decision to allow prosecutions without what lawyers call a "federal nexus" was an "extremely important" development, said a former Justice Department Civil Rights Division official Samuel Bagenstos.
"The problem federal prosecutors had pursuing hate crimes in the past was that the victim had to be involved in a federally protected activity," said Bagenstos, now a law professor at the University of Michigan. "....We ended up arguing sometimes that walking on a public street was a federally protected activity."
And so the fact that the deadly encounter between Zimmerman and Martin took place in a gated community, on private property, would have made it difficult to prosecute Zimmerman under pre-2009 laws - but not under the statute passed four years ago.
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Of course, said Bagenstos, that would not necessarily be the biggest problem in prosecuting Zimmerman, the Florida neighborhood watch activist acquitted of murder charges in state court on Saturday. The former No. 2 in the Civil Rights Division said a major concern would likely be the lack of direct evidence that Zimmerman was motivated by race in the confrontation that ended with him shooting Martin.
"The standard paradigm to prove racial intent is the defendant made statements about the victim's race, or an attack by a group of people who went out together looking for a person of a particular race," Bagenstos said. "It's difficult to prove a case like this where two people were involved and there are no other witnesses: One is dead, and the other one doesn't have to testify."
But the hurdles facing any potential Zimmerman prosecution aren't the Justice Department's only hate crime headaches.
The previous legal requirement of a federal connection was carried forward in the new version of the law for crimes based on gender, or on a victim being gay, lesbian or handicapped. But Congress declared in the 2009 law that violent crimes committed anywhere due to race, religion or national origin could be prosecuted in federal court under the 13th Amendment to the Constitution, which banned "slavery and involuntary servitude."
Critics of this expansion of the law have yet to score a major victory in the courts, but lawyers on both side of the debate acknowledged there are new signs the opponents may be making inroads.
Just last week, the U.S. Court of Appeals for the Fifth Circuit granted an unusual request to allow conservative legal scholars, including Heriot, to make a presentation during oral arguments next month on a hate-crime case out of Texas that deals directly with the 2009 expansion. The Fifth Circuit tends to be one of the country's most conservative benches, so the law's critics could be on fertile ground for a supportive ruling.
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