Going Civil: Will there be a Trayvon 2.0 in civil court?

miami courthouse revolving

Revolving Courthouse Door

As happened in the wake of the OJ Simpson criminal trial, there is now talk about civil claims that might be brought against George Zimmerman to get a lesser sort of justice for the killing of Trayvon Martin.  Being acquitted of a criminal charge does not get you off of civil liability, but civil liability also has other important differences from the criminal process, which some major media outlets are now in the process of bulldozing in the post-acquittal coverage.  (OJ won the criminal trial, then lost millions in the civil trial — but last time I heard anything, his victims’ families were still chasing the money.)

Here’s a blurb from CNN, for example, that speculates about two options:  A civil rights suit or a civil claim.  First off, a “civil rights” suit does not use “civil” in the same sense as a private civil claim, though some private claims are based on “civil rights.”  Civil rights cases, like in the wake of the Rodney King acquittal of LA police years ago, are normally aimed at government agents who deprive people’s rights based on, e.g., their race or religion, but not usually private citizens — though theories can be created.  Second, all this civil litigation talk is largely moot for one simple reason:  George Zimmerman doesn’t have money, property, or insurance.  (Remember Casey Anthony, Florida’s last criminal/civil case poster child?  There was talk about civil and lesser criminal charges for Ms. Anthony, but nothing materialized, right?)

Here’s how CNN managed to screw up the story:

A Florida jury has pronounced George Zimmerman not guilty of murdering Trayvon Martin.

But a court could still hold him accountable for the death….

Two options, however, are available: A civil suit, or a civil rights suit….

A civil suit allows one party to seek monetary damages against another for causing physical or emotional harm, regardless of the outcome of a criminal trial.

A civil rights suit involves criminal charges [not charges, a civil judgment for money or an injunction, say] for violating someone’s civil rights, which are protected under federal law….

Wrongful death is easier [not really “easier,” just proved differently with a lower burden of proof] to prove than murder or manslaughter.

A defendant can be held liable, even if he or she didn’t intend to cause the victim’s death, according to Florida law.

Simple negligence is enough, if it results in death. …

The NAACP is pushing the U.S. Department of Justice to file a civil rights suit.

They accuse Zimmerman of racial profiling that led to Martin’s death — an allegation that Zimmerman and his supporters have denied. [The notion of a one man racial profiling or civil rights violation “pattern” is absurd — under that theory, every traffic stop would be a federal civil rights claim, too.  The closest private civil rights theory I can recall would be white supremacists, like the KKK, but there’s more of a pattern and conspiracy there.]

“There’s a Trayvon in every town,” he said. “That’s why the Department of Justice has a role to play, to look at this pattern, because equal protection under the law remains elusive.” [Well, that’s why DOJ probably wouldn’t get involved — it’s not their job to handle backup or overlapping work with every police department in the country.]

The Justice Department did not respond directly to the NAACP demand. It has a separate federal investigation going on.  [This is probably an investigation of the local police and prosecutors who originally passed on indicting Zimmerman — not that’s a real civil rights issue.]

It’s a legal path that worked in the case of Rodney King, whom Los Angeles police officers clubbed down in 1991 after a car chase.  [But they were government agents and there was a group of them, not a single individual, and they were charged criminally, just like the New Orleans police who were recently convicted of federal civil rights violations for killing blacks after Hurricane Katrina.] ….

The way most private civil litigation works is that, for there to be a case, there has to be a client with money or a lawyer willing to gamble on a contingent fee.  For a contingent fee, you need a legally viable theory (a stretch here) plus some with money or insurance you can sue on your theory (a bigger stretch here).

One possible option — and it would be a big stretch — would be interesting:  Since the only “authority” Zimmerman supposedly had to patrol the neighborhood (other than the implied authority given to all neighbors who walk for exercise or for their dogs’ sake) was in his quasi-capacity with the neighborhood watch.  This might be a good time for the neighborhood homeowners’ association to lie low.  One can only imagine the impact on property values if neighborhoods had to pay for screw-ups by their “neighborhood watch” busybodies.

Of course, there are plaintiff lawyers who might sign up for such a case just for the publicity, even if there’s no viable option for payment.

For clients:  Most people will never experience this weird duplicity of the law, where you can face potential liability or legal punishment in multiple proceedings.  But this is the kind of risk that needs to be considered when you do things like buy insurance, sign a contract, or especially when you settle  something — make sure you and your lawyer have looked at all the potential risks, including some sort of litigation, government complaint, trial by press, or whatever.

CNN: Zimmerman could still be held responsible for Martin’s death

About JWT

John Toothman founded The Devil's Advocate, the legal fee management and litigation consulting firm, in 1993. He graduated from Harvard Law School, with honors, in 1981. John has been a lawyer with large and small law firms and the US Dept. of Justice. He's tried over sixty cases. He has testified as an expert witness in over seventy more. ... He is the author of several books and dozens of articles about lawyers, law firms, legal fees, ethics, litigation and trial practice, and related issues. Books include: Trial Practice Checklists 2d (West), Legal Fees: Law & Management (Carolina Acad. Press), and the Civilian's Guide to Lawyers series. His pro bono activities include teaching and speaking at seminars. ... John is admitted to practice law in DC, Maryland, and Virginia. More information: http://www.DevilsAdvocate.com
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