True Liberal Nexus

The Mob Rushes to Judgement

Within hours of the news of the shooting death in Sanford, FL, the mob had already found George Zimmerman guilty of the “murder” of Trayvon Martin, then spent the next weeks cherry-picking facts to support their verdict.   A superfluous exercise, really, when a single headline had been sufficient for their ‘verdict’:  ‘unarmed black teenager wearing hoodie shot and killed by white man in gated community.’   To the reactionary minds of proglodytes, this was incontrovertible proof of a racially-motivated attack.  The photo of the angelic teen victim was plastered across the MSM, and the Outrage Brigade girded its loins for yet another crusade against  Governor George Wallace   The Sparta, Mississippi PD  the pervasive institutional racism in our society.

The crusade hit a speed bump when the first photo of Zimmerman showed a face possessing decidedly hispanic features (his mother is Peruvian).  For, while proglodytes are convinced that racism lurks in the soul of every Caucasian, they seem incapable of imagining a member of a minority ever hating another minority.  They quickly got over this shock and back to interpreting every nuance of the case as evidence of anti-black bias.

As further, less angelic details about Martin started to trickle in, the Outrage Brigade blocked these from their minds, instead labeling the  revelations  — Martin had been suspended for marijuana possession and/or trespassing, he may have been dealing, a stash of stolen jewelry had been found on his person, he may have punched a bus driver — as a racially-motivated “smear campaign.”

Acceding to the mob’s demands, the U.S. Department of Justice is investigating Zimmerman’s actions as a hate crime.  Regardless of what will eventually be revealed about the events, the DOJ investigation should cause great alarm to all freedom-loving Americans.  To understand why it is so dangerous, we need to first review some of the legal aspects of this story.

A Legal Analysis of the Incident

(Note:  hereafter, I shall refer to Zimmerman as “Z”, and Martin as “M”.  Not for convenience, rather to emulate the standard presentation of case law examples, where the particular characteristics of the participants are irrelevant.)

As far as we know, neither Z nor M did anything illegal up until the moment they encountered each other.  Foolish, or unwise, perhaps, but not illegal.  Z had a right to drive and walk around his neighborhood, and to challenge a stranger.  M had the same right to walk, or even run, around that neighborhood, and to tell a stranger to piss off.

There are also several as-yet undetermined things that may have occurred prior to the confrontation, which we can only speculate on.  In listing them, I make no assertion of their respective validity.

Z may have:

• been earnestly trying to stop a perceived criminal;
• been stalking M solely because of his color;
• recklessly precipitated a physical confrontation;
• uttered a racial epithet.

M may have:

• been wandering lost on his first night in the neighborhood;
• been casing houses for burglaries;
• been stoned;
• been scared for his safety;
• decided to physically confront Z, instead of fleeing or calling for help.

While a few of these possible actions would be, in & of themselves, minor crimes or inchoate offenses, none can be considered the legal cause of M’s death.

Causation & State of Mind

When assessing culpability for a tort or a crime, the law looks for two things, causation, and state of mind (“mens rea”, or criminal intent).

The causation question is commonly phrased thus:  ‘BUT FOR A’s act, would B have suffered the harm?’   The causal link may not be extended infinitely.  But for his suspension, M would not have been in that neighborhood that night.  Yet that does not mean M’s school principle caused M’s death.  The focus is normally placed on the most proximate cause.

The proximate cause of M’s death was the firing of the gun by Z.  This does not necessarily mean, however, that Z is guilty of murder, or any crime.  The circumstances surrounding the action, the events leading up to it, and Z’s state of mind, all are factors.

Criminal codes vary from state-to-state, but most adopt a standard hierarchy, ranging from premeditated murder, through reckless-, then negligent manslaughter, on down to lesser crimes.  The incident does not fit the definition of murder, but could conceivably be deemed manslaughter, were Z found to have acted with reckless disregard of the potential consequences.  Z’s state of mind at the time, as compared to what the average person could reasonably be thinking in that situation, would then be a factor.

Z’s act could also be deemed justifiable homicide, which is not a crime.  You have the right to use deadly force, if you reasonably fear you will be killed or suffer serious bodily harm.  If it is true that, as Z was dialing his cell phone, M violently assaulted Z, knocking him to the ground with a punch to the nose, then straddling him to repeatedly slam his head against the concrete, Z’s fear for his physical safety or life would be eminently reasonable.

All this is for the The State of Florida to decide.  If the District Attorney chooses to make a charge, a grand jury must then be convened to indict. If an indictment is issued, a court would then hear the case, and a jury reach a verdict. If a guilty verdict is returned, finally a judge would levy a sentence.  That’s known as due process under the law.

Reserved Powers

The mob is impatient of that process, though, and has persuaded the DOJ to proceed with a prosecution of Z for hate crime under the Matthew Shepard Hate Crimes Prevention Act (“HCPA“).  That poses dangerous threats to our Constitution, our form of government, and to all our civil liberties.

First, the Constitution reserves for the states what are known as police powers.  These are not just cops issuing speeding tickets, rather all form of regulation in the interests of the health, safety and welfare of the state’s citizens.  The federal government is only supposed to assume police power within the narrow confines of its enumerated powers.  When the HCPA was passed in 2009, some observers noted with concern that it “greatly expands the federal government’s jurisdiction to prosecute cases that properly belong in a state court.”

Laws that expand federal police power always require a “hook” for justification, usually the Commerce Clause.  For the Shepard Act, the 13th Amendment’s banning of slavery was also pressed into service as a “hook” via a painfully convoluted argument:

“For generations, the institutions of slavery and … involuntary servitude were enforced … through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating … the … relics of slavery ….”

Second, many argue the HCPA violates the 5th Amendment by subjecting citizens to Double Jeopardy, facing multiple trial & punishment for the same offense.  Under the HCPA, the federal government may prosecute “[w]hoever … willfully causes … or … attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person” simply if the U.S. Attorney General determines that either:

the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or a prosecution by the United States is in the public interest and necessary to secure substantial justice.

In plain English, if Eric Holder feels Florida’s ultimate punishment of Z is not sufficiently harsh for his taste, he can try Z again in federal court.   Many activists feel this is justifiable, to make up for the “long history in this country, where African-Americans are victims, and state authorities failed to act in a timely and appropriate manner ….”

Additionally, the HCPA seems to punish hatred/bias in isolation.  A main defense of bias crime statutes is that they punish the hate only after it has been manifested in a criminal act.  Z has yet to even be charged with a crime, yet the DOJ is ramping up to prosecute him.  DOJ’s case against Z rests on two elements, and two alone:

1. M’s skin color was different than Z’s skin color;
2. Z allegedly uttered a word.

Even if Z did say “coon”  — even if saying “coon” is indicative of his hatred of blacks —  does that merit a life sentence?  The HCPA says it does.  Were Z to be acquitted of all charges in Florida, many believe he still deserves to spend the rest of his days in a federal penitentiary.

Finally, although the Shepard Act contains language assuring that “[n]othing in this Act shall be construed to prohibit any constitutionally protected speech”,  its sanctioning of extremely harsh penalties, based entirely on what a person says, nevertheless creates a Chilling Effect on free speech.

Z, along with every citizen, has a 1st Amendment right to say “coon” or anything they like, however “distasteful and repugnant”.  We also have a right to hate certain groups and to express that sentiment in public (cf. Snyder v. Phelps)  But if certain words are enough to send anyone to prison, no one can ever feel safe saying those words.  Like all hate crime laws, one unavoidable side effect of the HCPA is a gross infringement of our 1st Amendment rights.

The Constitution Trampled Underfoot

The furor over the incident in Sanford, FL is but the latest example of a clash between increasingly polarized philosophical camps.  In their angry scrum to define the narratives that influence both public opinion and public policy, the combatants are trampling our Constitution, and our civil liberties contained therein. The polemics need to end, and the rule of law restored.

(c) 2012 by True Liberal Nexus.  All rights reserved.