WASHINGTON — It's extremely unlikely George Zimmerman will pay a civil fine for killing Trayvon Martin, according to lawyers in Florida and other legal experts. That leaves it up to the United States Justice Department to take up the cause of Martin's supporters, a risky prospect in its own right thanks to the evidentiary problems that plagued state prosecutors. One Florida law professor said he'd be "stunned" if a federal prosecution of Zimmerman goes ahead.
The reason a successful civil case is unlikely to be successful for the Martin family, according to Lave, is Florida's "Stand Your Ground" law — the legal construct that was key to the legal decisions at the start of the Martin saga, but didn't play a central role in the criminal trial that led to Zimmerman's acquittal. The law is written in such a way that Zimmerman can easily use his criminal acquittal to duck a civil case, according to Lave.
"Technically, there can still be a civil case," said Tamara Rice Lave, a professor of criminal law at the University of Miami and a former San Diego public defender. "However, 'Stand Your Ground' is going to preclude that."
At the start of his trial, Zimmerman waived the right to have a judge determine he was immune from prosecution in the Martin shooting under "Stand Your Ground," which says people can use deadly force rather than flee a situation where they feel their lives are in danger. After his acquittal, Zimmerman can rely on getting that immunity in a civil case, Lave said.
"One of the things that 'Stand Your Ground' does, is it says that if you prove by a preponderance of the evidence, which is 51%, that you acted lawfully under 'Stand Your Ground' you can't be prosecuted criminally sued civilly, and he's just gotten a not guilty verdict," she said. "And so it's pretty clear he's going to win that."
Darren Hutchinson, a constitutional law professor at the University Of Florida, agreed that a civil case could blow up due to "Stand Your Ground," but he was less convinced a judge is guaranteed to give Zimmerman immunity under the law.
"It's still hard, given a acquittal, to win in a civil case," he said. He noted that if Zimmerman doesn't get immunity under "Stand Your Ground," the burden of proof would be much different and give the Martin family attorneys the chance for a win.
"If they got over the procedural hurdle [of immunity], I wouldn't say that it would be impossible," Hutchinson said. "I still think it's difficult, given the lack of evidence we have in the case and the main eyewitness against him [Martin] being dead."
Many outside observers look to O.J. Simpson's civil conviction following his criminal conviction as a map for how the Martin family should proceed. Lave said the comparison doesn't make much sense.
"If you think about the O.J. case ... no state had Stand Your Ground laws then. California doesn't have it now, so there was nothing that prevented [the civil case] from happening," she said. In Florida, the law is different: "Stand Your Ground" gives Zimmerman legal power to shut down a civil case before it begins, something Lave said was a virtual certainty.
Martin family attorney Benjamin Crump said in multiple TV interviews Sunday that Trayvon's parents are considering a civil case but haven't made a final decision.
"I'm sure we'll spend some time talking to them and make the appropriate decisions," Crump told MSNBC's Steve Kornacki, "but right now they are going to church this morning and leaning on a higher authority because they are very confused about the justice system and how all of this has transpired."
Martin family supporters, including the NAACP, the nation's oldest civil rights organization, have called on the Justice Department to take up the Zimmerman case, perhaps charging the former neighborhood watch volunteer for civil rights violations. On Sunday, NAACP President Ben Jealous told CNN his group has had conversations with "senior members" of Attorney General Eric Holder's staff about pursuing a civil rights case.
"We are glad what they began months back continues, which is a serious reviewing of everything that came out in this case, everything that was known before this case," Jealous said.
Justice Department spokespeople did not respond to multiple requests for comment on the conversations with the NAACP.
Hutchinson said a federal prosecution is unlikely in his estimation.
"The federal jurisdiction in this case, the most likely would be a hate crimes statute," he said. "Most of the federal criminal civil rights laws are directed to state actors, so if the the police killed Trayvon I could see a federal case more easily."
Hutchinson said federal prosecutors would have a hard time proving racial bias.
"What overt evidence would they have of race to show that [Zimmerman] acted in a racial fashion when he decided to kill Trayvon Martin?" Hutchinson said. "It would be a criminal case, with beyond a reasonable doubt, a really tough standard. So to show racial motivation, it would be really tough."
Hutchinson said he can see the Justice Department "giving attention to investigating and then announcing, 'We've decided there's nothing here for us to do.'" But he doesn't see the Justice Department charging Zimmerman with a crime.
"I would be be stunned by a federal prosecution, let's put it that way," Hutchinson said.
Lave said that federal prosecutors can go after Zimmerman without fear of running afoul of double jeopardy, which prevents a person from being charged with the same crime twice. Double jeopardy doesn't apply across jurisdictions, giving federal prosecutors latitude to take on the case. Federal prosecutors can learn from the mistakes Florida prosecutors made in their case, Lave said, but they'll still be stuck with a case based on conflicting witness testimony and a lack of physical evidence due, Lave said, to the months between the shooting and Zimmerman's arrest.
But the difficulty federal prosecutors may face doesn't mean a federal prosecution is out of the question, according to Lave.
"We make many decisions in this country based on resources, which we should because we have limited resources. But sometimes justice is more important than resources," she said. "So if the federal government feels that this is a miscarriage of justice, then they should do something about it."