Walen on Ahmaud Arbery

The following post is by Alec Walen (Rutgers).

The killing of Ahmaud Arbery was a horrific tragedy. It is natural to want justice for him. And perhaps the evidence will show, beyond a reasonable doubt, that the three men who chased him down and eventually killed him had no legal right to do what they did. But from what I can see, it seems plausible that they did have a legal right to do what they did. If so, then convicting them of murder, assault, and kidnapping—the three basic charges they face in an 8-count indictment—would turn them into sacrificial lambs, punished to make up for our collective guilt as a racist society. That might make some people feel better, but it would not do justice.

The killing of Ahmaud Arbery was a horrific tragedy. It is natural to want justice for him. And perhaps the evidence will show, beyond a reasonable doubt, that the three men who chased him down and eventually killed him had no legal right to do what they did. But from what I can see, it seems plausible that they did have a legal right to do what they did. If so, then convicting them of murder, assault, and kidnapping—the three basic charges they face in an 8-count indictment—would turn them into sacrificial lambs, punished to make up for our collective guilt as a racist society. That might make some people feel better, but it would not do justice.

By way of background: On Feb. 23, 2020, Mr. Arbery was jogging through the Satilla Shores neighborhood, about 2 miles from his home. As video from the scene indicates, he took a detour to peek into a house under construction, as he had done several times before. The New York Times reports that:

Gregory McMichael, a former investigator in the local prosecutor’s office, saw Mr. Arbery in the house and thought he looked like a man suspected of several break-ins in the area. He called to Travis, his son, a Navy veteran and boat-tour operator. The elder Mr. McMichael grabbed a handgun; his son, a shotgun. The two jumped into a truck and gave chase and were eventually joined by Mr. Bryan, who drove his own truck. Mr. Arbery, a former high school football player, tried to run from them.

Eventually, the pursuers had Mr. Arbery caught between them. Travis McMichael got out of his truck and stood near its door with his shotgun. Mr. Arbery ran around the truck and then at him. They wrestled over the shotgun and it went off three times, killing Mr. Arbery.

It’s not hard to see how this was fundamentally a tragic, racially tinged, misunderstanding. Think of it, first, from Mr. Arbery’s point of view. He went out for a jog and was curious to see how things were coming in this house under construction. I have been that sort of trespasser before, peeking into houses under construction. It’s fascinating to see how they come together. I never stay long, I never touch anything; I’m just looking. It seems this was the case for Mr. Arbery too.

After spending about four minutes in the house, Mr. Arbery left and continued jogging on his way. But a few minutes later he saw that he was being followed by some white guys in a pickup truck, and by another white guy in a car. Now we don’t know what the McMichaels or Mr. Bryan might have said to Mr. Arbery, but it’s easy to imagine that he was afraid that they were aiming to harm him. 

He did what anyone might do: he tried to escape danger. He changed directions and then changed directions again, trying to escape pursuit. Finally, finding himself between the two vehicles, he saw the driver of the truck get out and presumably he saw that he was armed with a shotgun. He heard the word “STOP” but presumably—and we’ll never know—it occurred to him that the best chance he had to avoid being shot by these lunatics was to try to disarm the guy with the shotgun. So, he ran towards him to try to wrestle it away. But he failed to wrest the gun free, got shot in the chest, and died.

Now view the same situation from the point of view of the McMichaels. There have been break-ins in the area, and they see this Black guy emerge from a house where he was trespassing, and he looks like the guy suspected of burglaries in the area. They called the police. But they did more. They knew the law—Gregory was an investigator and had worked in the prosecutor’s office. They knew that the law allows them to make a citizen’s arrest and so they proceeded to do that, to ensure that this trespasser and suspected burglar would not get away before the police came.

Here’s exactly what the law said (it has since been repealed): “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.”

The McMichaels presumably thought that they had immediate knowledge that this Black guy was trespassing. It’s a misdemeanor in Georgia to enter “upon the land or premises of another person … for an unlawful purpose.” They can’t know his purpose, but what lawful purpose could he have had? Moreover, if he is a burglar, then maybe he was engaged in more than trespassing; maybe entered the property with the intent to take something. Burglary is a felony and he was fleeing. They only needed “reasonable and probable grounds of suspicion”—in other words, they only needed to reasonably suspect—that he entered the building without authority and “with the intent to commit a felony or theft therein” to arrest him.

It’s not that they did nothing wrong. But to appreciate what they did wrong, and how it is significant, you need to take seriously the idea that citizens in Georgia were supposed to act, essentially, like the police in making arrests. Imagine, then, that you are a police officer and you are chasing a fleeing felon. You see a man running from a house and you have reasonable suspicion that he was not only engaged in criminal trespass, but that he was engaged in a burglary. You give chase. You see that he’s faster than you and so you pull your gun and yell STOP.

What you’ve done is exercise your “constructive authority” as a police officer. You’ve also done so wrongly. You know that under Supreme Court precedent (Tennessee vs. Garner) you have no right to shoot a fleeing felon unless you have probable cause to believe that he poses a significant threat of death or serious injury to yourself or others. You have no probable cause to believe that, but you think you’re still operating within the law because you pulled your gun to intimidate, not to shoot. In New Jersey—where I teach and where retired Police Captain Brian Donnelly, with whom I consulted, also teaches—that sort of act runs counter to policy issued by the Attorney General. It also was stupid, because it risked escalating the conflict. And indeed, that’s what happened.

So, to continue with the case, suppose the suspect you were chasing sees your gun and turns on you and tries to disarm you. You would have a right to shoot in self-defense. It was, in a way, your fault that the situation reached that point. You never should have pulled your gun. But having made that mistake, it’s not your fault that you need to use lethal force to defend yourself. Your provocation of a conflict would not cause you to lose the right of self-defense because you had the authority to arrest him, and your misuse of your firearm to threaten does not cause you to forfeit that authority.

In Georgia, the McMichaels and Mr. Bryan can say that they likewise had the authority to arrest Mr. Arbery. Moreover, even if it was stupid to brandish a shotgun to try to intimidate Mr. Arbery and cause him to submit himself to their authority, that by itself did not cause them to forfeit the right to arrest him, and it did not cause them to lose the right to use lethal force if necessary to act in self-defense.

Both sets of actors, in other words, plausibly had perfectly understandable reasons to act as they did. If this is how the jury sees it at the end of the presentation of evidence, then they must acquit the McMichaels and Mr. Bryan of the charges brought against them.

Indeed, if this is how the prosecution sees the case, then the prosecutor has violated basic prosecutorial ethics by bringing this case. It would then be a cowardly act of putting the burden of doing the right thing on the jury because the prosecution doesn’t want to stand up to the political pressure to bring the case.

But one can ask: Is there nothing that can be done? Well, what was done was important: the citizen’s arrest law was repealed. That’s good because police and citizens have a different impact on others. If Mr. Arbery had seen police officers telling him to stop, it is likely that he would have obeyed rather than going for one of their guns. He would likely have presumed that they had the authority to arrest him and were exercising that authority rather than coming to harm him. Without an obvious sign of authority, citizens who seek to wield authority may instead seem to be merely trying to assault a fellow citizen. And in an area beset by racial mistrust, there is all the more reason to think someone would react as Mr. Arbery did in his situation.

In the longer term, we need to address our racist culture. I have no doubt that if I, a middle-aged white guy, had been seen peeking into the house, no one would have called the police on me. I might have been approached to see what I was up to if I wasn’t from that neighborhood. But I would have been approached politely. Even if I resembled someone suspected of burglary in the neighborhood, I presume the encounter would have gone more smoothly; I would have explained who I was and that I was indulging my idle curiosity, and no one would end up dead. Likewise, as a white guy, if I had been pursued by other white guys in a truck flagging me down, I’d be less likely to assume that the intent was hostile. I’d be more likely to stop, and talk, and resolve the matter peacefully. Racism creates fear and misunderstanding on both sides, and it was fear and misunderstanding that seems most likely to have led to Mr. Arbery’s death.

If this is right, the jury should acquit. That will be problematic. Many will think that racism caused the death of Mr. Arbery and then caused his killers to go free. But if they committed no crime, they may not be punished. They may not be sacrificed for our collective, racist past. We need, rather, to work, collectively, on doing the hard work of coping with tragedy, fixing bad laws that encourage citizens to pull guns on each other, and trying to get people to understand that all people, no matter their race, deserve respect.