A Vigilante Killing in Georgia
The right to make a ‘citizen’s arrest’ isn’t a license to kill.
|David French||May 7, 2020|| 180||364|
On Tuesday, my friend Jane Coaston at Vox emailed me a link to a 36 second video clip showing in graphic detail the killing in Brunswick, Georgia, of a young black man named Ahmaud Arbery. Jane wanted to know what I thought. I’ve watched the video. I’ve watched it again. I’ve read the police report, the prosecutor’s explanation of his decision not to seek an arrest warrant, and the relevant excerpts of 911 calls reported in local media. I’m ready to tell you what I think.
Ahmaud Arbery’s killers should be arrested and tried for murder. Their vigilante action looks less like the heroic actions of armed citizens upholding the law and more like an old-time posse, executing a vile form of street justice on a young, unarmed black man.
Let’s walk through the events. Grab some coffee; this is going to take some time.
Just after 1 p.m. on February 23, a person called 911 to report a black man in a white shirt walking in a house under construction (excerpts of the 911 transcript come from the Brunswick News). In that call, he made it clear there was no immediate break-in:
“There’s a guy in the house right now; it’s under construction,” the man told the dispatcher.
The man then gave her an address.
“And you said someone’s breaking into it right now?” the dispatcher asked.
“No,” the man replied, “it’s all open. It’s under construction … “
The man interrupted to say Arbery was leaving. “And there he goes right now.”
“That’s fine,” the dispatcher said. “I’ll get (police) out there. I just need to know what he was doing wrong. Was he just on the premises and not supposed to be?”
The next sentence is garbled. “And he’s been caught on camera a bunch at night. It’s kind of an ongoing thing. The man building the house has got heart issues. I think he’s not going to finish it.”
“Ok, that’s fine,” the dispatcher said. “And you said he was a male in a black T-shirt?”
“White T-shirt,” the man said. “Black guy, white T-shirt. He’s done run into the neighborhood again.”
Minutes later, another person called 911. Here’s how the Brunswick News described that conversation:
“I’m out here at Satilla Shores,” the man said. “There’s a black male running down the street.”
“Where at Satilla Shores?” the dispatcher asked.
“I don’t know what street we’re on,” the man replied.
“Stop!” he can be heard shouting. “Watch that. Stop, damn it! Stop!”
That call went blank for several minutes, with the dispatcher trying several times to reach the caller. The call eventually hangs up.
At some point in this sequence, a man named Gregory McMichael saw Arbery allegedly “hauling ass” down the street (it’s unclear at this point if McMichael is one of the 911 callers). Arbery’s friends and family said that Arbery liked to stay fit and that he was “often seen jogging in and around his neighborhood.”
McMichael told police that there had been “several break-ins in the neighborhood and ... the suspect was caught on surveillance video.” McMichael grabbed his .357 Magnum, while his son, Travis, grabbed a shotgun and they began pursuing Arbery in their vehicle.
Why did they arm themselves? McMichael said he was concerned Arbery was armed because “the other night” he’d seen him stick his hands down his pants.
From the police report, it appears there were two vehicles and three individuals involved in the chase. McMichael says he tried to cut off Arbery on the road and so did an individual named “Roddy.” McMichael then says he got into the bed of a pickup truck and continued the pursuit. Here’s how the police report described the fatal final encounter:
McMichael stated they saw the unidentified male and shouted “stop stop, we want to talk to you.” McMichael stated they pulled up beside the male and shouted stop again at which time Travis exited the truck with the shotgun. McMichael stated the unidentified male began to violently attack Travis and the two men then started fighting over the shotgun at which point Travis fired a shot and then a second later there was a second shot. McMichael stated the male fell face down on the pavement with his hand under his body. McMichael stated he rolled the man over to see if the male had a weapon.
As Arbery approached the truck, he was wearing what looked like workout clothes and running with his hands in clear view. He was not holding a weapon.
If you’ve watched the video, you can already spot one clear problem. The video doesn’t depict McMichael pulling up beside Arbery but instead shows him waiting, blocking the road with his truck. Arbery changed direction to avoid the truck, Travis McMichael moved to intercept Arbery while holding his shotgun, the two scuffled (it’s not clear who initiated contact), and then Travis fired three shots.
Some context: The Brunswick News (thank God for diligent local media) noted that only one burglary had been reported to local police between January 1 and the day of the shooting. On January 1, someone allegedly stole a 9mm handgun from a pickup truck outside Travis McMichael’s home. A Brunswick resident named Larry English also told The Daily Beast that someone stole $2,500 in fishing equipment from his property, an alleged loss he did not report to the police.
It’s also worth noting that Greg McMichael is a former police detective and investigator for the Brunswick district attorney’s office. According to the New York Times, Glynn County district attorney Jackie Johnson recused herself from the case because of McMichael’s prior work for her office. A second district attorney, George Barnhill, also stepped away from the case—but not before writing a letter explaining why he believed “there is insufficient probable cause to issue arrest warrants at this time.”
His argument was simple: The three men were in “hot pursuit” of a burglary suspect with “solid firsthand probable cause” in the effort to execute a citizen’s arrest. Moreover, he argues, open-carrying weapons is lawful in Georgia, and the shooting occurred only after Arbery attacked Travis McMichael and tried to grab his shotgun. At that point, Barnhill argues, “McMichael was allowed to use deadly force to protect himself.”
Georgia law does indeed permit a person to execute a citizen’s arrest—in very narrow circumstances. The relevant false arrest statute holds that a “private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.”
Once the citizen’s arrest is properly made, Georgia law requires the citizen to take the suspect before a judicial officer or peace officer “without any unnecessary delay.”
It’s also true, however, that an unlawful attempt to take and hold a person is itself a crime—false imprisonment. Under Georgia law, a person commits the crime of false imprisonment “when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.”
Moreover, according to Georgia case law, one cannot use the citizen’s arrest statute “to question” a suspect. In fact, stating an intention to question a suspect can be evidence that the individual claiming a right to make a citizen’s arrest is “uncertain and did not have immediate knowledge” that the victim had been the perpetrator of the alleged crime.
Now, let’s apply the law to the facts. On the day Arbery died, a 911 caller said a man matching Arbery’s description was walking inside a vacant construction site. Another caller said, “There’s a black male running down the street.” Gregory McMichael claimed he recognized Arbery from “surveillance video” after “several break-ins in the neighborhood.”
The only “offense” committed in anyone’s presence is the report of a person walking into a construction site. If that merits mounting up an armed three-person, two-vehicle posse to chase a man in broad daylight and menace him with weapons, then many of us are lucky to be alive and free. Just last week I walked into a house under construction in my neighborhood to check out the new floor plans. I didn’t even think to check for an armed gang charging down the street.
The McMichaels’ other possible argument is that the unspecified video footage from unspecified previous break-ins constituted sufficient “immediate knowledge” that a crime had been committed days or weeks ago, and that alleged older crime provided the McMichaels with “reasonable and probable grounds of suspicion that they were pursuing a fleeing felon.”
Justifying armed pursuit on that basis would represent a remarkable application and extension of the law. It would empower vigilantism. It would empower citizens to independently investigate crimes and seek to arrest suspects on their own authority.
McMichael didn’t merely report that Arbery ran by so that police could investigate. He didn’t even simply follow him at a safe distance to keep him in sight until the police arrived. He moved aggressively to arrest Arbery, and he did so based mainly on his subjective interpretation of surveillance videos of alleged previous incidents.
Georgia case law indicates that past incidents may not justify present citizen pursuit. A 2000 Georgia Court of Appeals opinion states that “the term ‘within his immediate knowledge’ enables a private citizen to use any of his senses to obtain knowledge that an offense is being committed.” (Emphasis added.)
There are other problems with his story. If you go back to the police report, McMichael not only failed to report that he was parked and waiting in the road for Arbery rather than pulling up alongside him, he claims they told Arbery, “Stop stop, we want to talk to you.” A conversation is not an arrest, and an unarmed citizen is under no legal obligation to stop and “talk” to other armed citizens who are blocking his path.
Moreover, there is a vast difference between benign open carry and using a gun to threaten a person. It’s a crime under Georgia law to point a gun (loaded or unloaded) without legal justification. When Arbery was confronted by armed men who moved directly to block him from leaving, demanding to “talk,” then Arbery was entitled to defend himself. Georgia’s “stand your ground law” arguably benefits Arbery, not those who were attempting to falsely imprison him at gunpoint.
It’s also worth remembering that the long and evil history of American lynchings features countless examples of young black men hunted and killed by white gangs who claimed their victims had committed crimes. While we don’t yet know the full details about the McMichaels’ motives, their actions speak loudly enough. When white men grab guns and mount up to pursue and seize an unarmed black man in the street, they stand in the shoes of lynch mobs past.
We will learn much more about this case before it’s over, and perhaps we’ll learn of exculpatory evidence not yet available in the public record. There is now a third district attorney in the case, and he’s punting the matter to a grand jury. That’s preferable to dropping the matter entirely, but probable cause exists to arrest the McMichaels, now. There is compelling evidence of their guilt.
Photograph by Sean Rayford/Getty Images.