“Picking the man and then searching the law books”

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.

Related Post Roulette

41 Responses

  1. Michael Drew says:

    This was a bad move by the AG, no doubt. I expressed a possible explanation in a previous thread to the effect that perhaps what’s going on here is an effort to give an outlet for public interest in the topic and a way to defuse claims that evidence has not been considered when the time comes that it is announced that there will be no federal charges. I do suspect that is what this actually is – that it was clear to DOJ that no federal charges could be brought (since that is in fact clear), and that they felt they needed a way to deal with the eventual fallout from that.

    But that’s not actually a justification to call for the public to come forward with evidence meant to incriminate a man the authorities have determined can’t be charged with any more crimes relating to these actions, at least at the federal level. And if new evidence did happen to come to light that justified charges, I’m sure they would have used it (as, actually, at that point, would be justified). I guess, generally speaking, law enforcement agencies don’t deputize the public in this way to assist with investigations (OTOH, is it actually true that they don’t? Is this really so uncommon? I’m actually not sure, come to think of it. Police departments do tend to make use of tip lines.)

    All of that being said, I actually would question Scalia’s comparison, though my questioning might actually just be internal to the opinion quoted: I’m not actually sure what thing he’s comparing to the thing Justice Jackson described. but basically, no, using this appeal for public investigatory help (which is very much like the thing Scalia hypothesized about obviously) doesn’t seem to me all that much like what Jackson was talking about. They didn’t have to search the law books, and this wasn’t just “some man.” There’s a particular action already in question, and the question is whether a particular law (already in mind) covers the particular action. The man is not some man, but the man who has admitted to carrying out that action. The need for more evidence is owing to a universally acknowledged general lack of evidence relating to the events themselves, and in fact also to a deficient initial law-enforcement investigation. It seems to me that Jackson was describing something more like the picking out of a political enemy for torment or imprisonment, with no particular action of potential criminality in mind, and with no interest in securing justice relating to such acts, but with an interest in subjecting the person to torment merely because of the pre-existing animosity, to which end this official then investigates the enemy’s actions, to the extent he can, in full, scanning the law books for any law which could cover some action of the enemies that the officials investigators might uncover. That is not, in any way, what Holder is doing with this public announcement. It can’t even be argued that it is.

    But as I say, perhaps that is more a critique of Scalia’s argument within the opinion, since his description of the hypothetical DOJ action does indeed eerily match the action of AG Holder here. And, as you say, the argument isn’t a direct equation, but rather the assertion of a slippery slope: “Doesn’t [X] invite [Y]?” Slippery slope argument are certainly sometimes persuasive, but not always; it’s a matter of judgement (as is kind of implied in the slippery slope argument itself). My judgement is to say, no, I don’t really see how X invites Y here.Report

    • Michael Drew in reply to Michael Drew says:

      …Actually, I take back my concession that Scalia’s hypo matches this situation. The initial formulation does: “if […] the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution[.]” But the dependent clause departs from the facts here: “…an investigation and possible prosecution of a certain prominent person.” In fact, what is being investigated here is a certain action, not simply a person. The wording of the announcement may not make that clear, and that might be a legitimate criticism (and, again, generally, I don’t withdraw my condemnation of the entire exercise as not appropriate given usual DOJ procedure, the fact of the acquittal, and the current state of the evidence), but it’s quite clear that the thing that is actually being investigated here (if it still is) is the actions in question on that night, with other facts about Zimmerman’s life being of interest only insomuch as they illuminate our understanding of why he took the actions he did that night. Zimmerman isn’t still being investigated If he is) because he’s now prominent and disliked; he’s still being investigated (if he is), because it’s not clear (perhaps) whether the actions he took that night may have risen to the level of a federal civil rights violation or hate crime.Report

  2. Kazzy says:


    Do you have a direct source on the DoJ’s request for help? I’m trying to find anything they directly put out related to it and can’t find anything. It’d be helpful in better understanding what they’re actually attempting to accomplish.Report

    • Kazzy in reply to Kazzy says:

      I ask because the quote offered is from Barbara Arnwine, who participated in a phone conference with a DoJ representative, but doesn’t cite anything actually said by the DoJ. Reading the linked article and others it seems as if the DoJ reached out to specific groups (“civil rights groups and community leaders”) for help with their investigation and, separately, set up an email address for the public. Looking at the DoJ’s website, it seems there are times where email volume can become overwhelming. Given the high profile nature of this case and the amount of volume it is likely to generate, it seems prudent that they might want to filter it to avoid cluttering up their inboxes and swallowing up other matters.

      To me, there is a big difference…
      A.) between the DoJ conducting an investigation and reaching out to certain groups with expertise on the matter for help and separately setting up an email address for the flood of public emails
      B) posting a public a notice seeking help.

      They published no such notice. I’ve searched their site and found nothing to it. Most of the articles about the topic refer to the Orlando Sentinel article linked here and/or Arnwine.Report

      • Just Me in reply to Kazzy says:

        Just out of curiosity, what do you mean by expertise on the matter? I’m trying to figure out what help civil rights groups are going to give the Justice Department.Report

      • Kazzy in reply to Kazzy says:

        You don’t see how a group named “Lawyer’s Committee for Civil Rights Under the Law” might be of better use to the DoJ’s Civil Rights Division than someone like me?Report

      • Art Deco in reply to Kazzy says:

        How is it that a collection of political sectaries whose speciality is lawfare can be deemed to have ‘expertise’ with regard to this case? It is not likely they would be able to improve on both the local state’s attorney and the special prosecutor in their familiarity with it. (Given that Martin was not engaged in any sort of civic activity and given that Zimmerman was not and is not a public official, ‘civil rights’ charges would be humbug, even if they were cooked up by ‘experts’).Report

      • Kazzy in reply to Kazzy says:

        You’re making stuff up, AD.

        “The Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to enlist the private bar’s leadership and resources in combating racial discrimination and the resulting inequality of opportunity – work that continues to be vital today.”

        Whether you like them or not, they have expertise on the matter.Report

      • Art Deco in reply to Kazzy says:

        I am making up nothing, Kazzy. You’re just naive. This is their deal.


        It does not have much to do with ‘civil rights’ as the term would have been understood in 1866 or in 1963 either. It has a great deal to do with judicially distributed patronage and judicially enforced social policy. These guys are bad birds.Report

      • Kazzy in reply to Kazzy says:

        Why are they bad birds? Because they seek an agenda you disagree with? Last I checked, you weren’t much of a champion of civil rights based on any definition.Report

      • Kazzy in reply to Kazzy says:

        And, it should be noted, that a member of the group in question is the one Tim, the author here, is quoting for substantiate his case. I didn’t seek out the group to support my argument; he did.Report

  3. Michelle says:

    The Justice Department already investigated Zimmerman.

    A July 2012 announcement by the FBI said it found no evidence that Zimmerman was motivated by racial bias or hatred. Still, there’s been no official word by the Department of Justice on a final decision not to press charges.


    As such, it seems like this latest investigation is an unwarranted fishing expedition. I agree with Michael Drew that it’s most likely means to defuse tensions arising post-acquittal, which makes it even worse. Do we really want government agencies using the law as a way of resolving racial tensions when they have no intention of actually charging the person being investigated? This seems to me both an abuse of power and a less-than-cunning ploy that shows no respect for the intelligence of the people they’re hoping to placate.Report

  4. BlaiseP says:

    Can’t anyone see this is just a “call for papers” on the subject of Zimmerman? It’s a cynical pressure valve being opened: a hundred ill-written screeds will arrive in that inbox and none of them will be worth a bucketful of warm piss — and no action will be taken. The Administration gets to say it’s still “looking at the subject”, the usual response from the weasel-du-jour behind the lectern at some White House Press Conference.

    Move along folks. Nothing to see, here. Quite a few Americans are all fussed and bothered on this subject and they’re all sitting at their computers now, drafting some rantiferous enumeration of Zimmerman’s evils. None of them will go anywhere.Report

    • Mad Rocket Scientist in reply to BlaiseP says:

      Basically a DOJ equivalent of the White House Petition site.Report

      • BlaiseP in reply to Mad Rocket Scientist says:

        Egg Zackly. And it’s a wonderful thing, because such a site will also keep Matt Drudge’s panties in a twist. Likewise that grinning fathead Bill Kristol over at Weekly Standard.

        As long as you can keep your enemies and friends alike ranting and flinging poo at each other, you can close your mouth and thereby keep your feet out of your pie hole.Report

    • Damon in reply to BlaiseP says:

      I agree, up to and until it’s done to some other guy and DOJ actually gets dirt on him that they can use, either on the same issue or on something else (like he cheats on his taxes). Then what was a safety valve becomes a weapon.

      You really think that if this type of behavior becomes common-and I see no reason why it wouldn’t, some guy will end up on a cross?Report

  5. Will H. says:

    There’s another aspect of this that makes the matter a bit troubling.

    The role of the court is to adjudicate the rights of parties. And that’s pretty much it.
    For all the concern of various types of crime victims in the criminal justice system, crime victims are not parties in a criminal action. Only the state and the accused are parties to criminal actions, and those are the only parties whose rights are being adjudicated in a criminal action.
    Wrong cause of action to adjudicate the rights of the crime victim.

    A suit at common law or a suit in equity is necessary to adjudicate the rights of victims of crimes.
    Then the crime victim, as a party at suit, can ask the court to adjudicate their rights.

    Which gives rise to the question of how it might be seen as a reasonable exercise of state power to act against a private citizen on behalf of a private citizen.Report

    • Michael Drew in reply to Will H. says:

      I think you’re confused. Crimes frequently have victims, but the state always prosecutes representing its own interest in enforcing the law. IOW, what you’re describing is the case for a large bulk of criminal prosecutions; there’s nothing different here. If Zimmerman violated Martin’s civil rights as laid out in federal law, the United States’ state interest in prosecuting that isn’t different in the sense you’re talking about from Florida’s interest in enforcing its laws against murder, manslaughter, etc., despite the fact that in each case the crime involved the alleged victimization of a person.Report

      • Will H. in reply to Michael Drew says:

        No, there’s a significant difference here. You’ll find it in the judgments rendered.
        A suit at common law will have a money judgment, where a suit in equity will have some form of injunction.
        So, the DOJ is getting involved on behalf of a private citizen? That’s not unusual in itself. They actually have a separate unit for that. But in all other cases that I’m aware of, these are actions brought against police departments with a history of excessive force. Not a private citizen. Not a company. Not the prison guards’ union.

        Violation of civil rights is a criminal act. Sections 241, 242, & 245 of Title 18.
        In a civil action, the cause of action will be sections 1981, 1983, 1985, or 1986 of Title 42.

        Why do you suppose the government didn’t go after Bernie Goetz?
        Would you support such a thing?

        And who else?Report

      • Perhaps I’m confused about what you’re saying. I’m (perhaps like you?) saying that the case in question that the DOJ may be seeking to build is a criminal one.

        From the linked article:

        The U.S. Department of Justice on Monday afternoon appealed to civil rights groups and community leaders, nationally and in Sanford, for help investigating whether a federal criminal case might be brought against George Zimmerman for the shooting death of Trayvon Martin, one advocate said.

        (Hardly authoritative sourcing, but that seems to be the reporting.)

        What’s being talked about in this post is the DOJ perhaps trying to build a case for criminal prosecution under federal civil rights and hate crimes laws, not suing for damages.

        Separately, Trayvon Martin’s parents’s attorneys I assume are studying civil rights law for how that may enhance their ability to recover from George Zimmerman. But that wasn’t the subject of this post. I can’t say what role the U.S. DOJ might or might not have in such civil suits (you may be right that it ought to be none, but it may in fact be none – beyond the extent to which the public record of criminal proceedings become subject matter that’s admissible in civil suits), but whatever that role is or isn’t, it wasn’t the topic of this post as I understand it.Report

      • Will H. in reply to Michael Drew says:

        The paragraph after the quote there explained it well.
        My mistake. I took it to mean that the gov’t was trying to build a civil case against Zimm rather than a criminal one.

        In that case, although I personally disagree with such actions as double jeopardy, that’s about par for the course for the feds; e.g. the well-known case of Doreen Proctor, killed by Roberta Bell & Willie “Little Man” Tyler. The state failed to win a murder conviction, then the feds stepped in (even though this wasn’t in relation to a federal action) to convict the two under the federal witness intimidation statute.Report

      • …Ah, maybe I understand the issue.

        Are you understanding a “civil rights violation” could only refer to the violation of Martin’s civil rights, and that he, being deceased, cannot be party to a suit (criminal or civil)?

        I think that’s wrong; the civil rights laws in question could bar conduct of a certain kind in the way that a normal law that bars eg. shooting a person might, whereupon if it’s suspected that such conduct occurred it becomes in the interest of the the people of the jurisdiction in question that that law be enforced, and they become a party to a suit (prosecution) of the person who they (via the state) suspect engaged in it. A victim’s civil rights may have been violated by those actions (which possibility may be the namesake of the law), but in its actual enforcement what’s done isn’t dissimilar to the enforcement of another law against harming a person in that the party to that enforcement is the people of the jurisdiction, and in that their interest in the matter is that their law be enforced.Report

      • Cool beans. It’s actually entirely unclear from the reporting – just that one “criminal” in front of “case.” And frankly, I wouldn’t rule out the possibility that the DOJ is in some way aiding lawsuits over this matter. I’d be interested, actually, to know just how scandalous that would be if it were true. I assume quite.Report

      • Will H. in reply to Michael Drew says:

        As I understand it, survivability of property interests is a matter of state law, to which the federal courts defer.
        In the civil rights context, there are instances where the federal common law is specifically stated as an authority.
        I don’t see the issue of standing as particularly important; quite common for a decedent’s survivors to bring an action against responsible parties.

        It was that I had a civil action in mind when I heard “civil rights.”
        I don’t think that civil rights chapter in title 18 (the criminal statutes) is used very often.

        But I don’t sense the overwhelming public support for Zimm in the way there was for Goetz.Report

  6. James says:

    The AG has essentially prepared the stage and the spotlights for a ‘witness’ to come forth with evidence that mysteriously didn’t exist before.Report

  7. Badtux says:

    Welcome to the way “criminal justice” works in America. Pretty much every single one of us has broken some law or regulation at some point in time, because they have entire friggin’ *libraries* full of laws and regulations. None of us are in jail because a cop or prosecutor didn’t see the offense or care to do anything about it if a cop *did* see the offense.

    In short, selective prosecution is the reality when we are all criminals. Why else are more minorities in jail for drug offenses when all surveys of drug use show that white people use drugs just as often as minorities? Why is Willie Nelson walking around a free man right now, while the jails are full of black kids busted for a joint? Well, DUH!Report