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Thursday, October 28, 2021

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.

Posted by Howard Wasserman on October 28, 2021 at 01:16 PM in Criminal Law, Law and Politics | Permalink



Oh yes, just ordinary civil lawsuits. Nothing at all unusual about SB8 in that respect. No different really from trying to get your security deposit back in small claims court, right?

What a brilliant defense of the law. Strange the Texas AG didn't think of that one. Go figure! With all the legal acumen you've displayed, I think you'd be crazy not to apply for a job with the AG.

Posted by: kotodama | Oct 29, 2021 8:29:12 PM

What Matthew Estrin said. This is lame in the extreme. It's like, won't someone think of the real victims here—the racist cracker murderers?

Yes, clearly, every single rank-and-file police officer working on the case, the GBI investigators, the AG (a Republican!), DA Durden (elected in 1998), DA Holmes (another Republican!), the magistrate (in Glynn County!), of course the grand jurors (also in Glynn County!) were hellbent on "mak[ing] up for collective guilt as a racist society." That sure does seem like the simplest explanation doesn't it? No way they just did their jobs like they always do and recognized obvious evidence of a serious crime according to GA law. That would be unpossible!

And I almost forgot to mention the separate *federal* indictment! But again, that must be the SJWs at work too. That's just what I'd expect from card carrying members of the woke mob like, I dunno, a TP-appointed US Attorney who started the investigation. You also have his successor, a line federal prosecutor since 2002—prime Dubya years of course. Oh, and the acting US Attorney originally cut his teeth in the Alabama AG's office, a well-known hotbed of ultraleft radicalism. If you don't believe me, just ask Bill Pryor!

But maybe Prof. Walen is right. After all, these DAs and the AG have only been working with actual GA law, while actually being located in GA, for years, or at most decades. That's nothing compared to the formidable expertise of [checks notes] a singe law professor in NJ with a whole 1 year of practicing business law at a white-shoe firm in DC. 1 year of business law practice in DC! In your face seasoned GA prosecutors!

I also can't help but note that Prof. Walen neglected to mention the little detail of the first two DAs on the case. You know, the one who later got indicted for obstruction etc. and the other who was investigated for similar misconduct? Leaving out that kind of info is always a bang-up way to enhance one's credibility. And why omit that? Surely those DAs are just as much wokeness victims as the murderers right? Their persecution is so typical from that BLM stalwart, Republican AG Chris Carr.

A pro tip in parting. When making the quite serious accusation that the DAs/AG "violated basic prosecutorial ethics" it'd be good to cite the rules in question that were supposedly "violated." And one also better be ready to back that up by actually filing a complaint with the GA bar disciplinary board.

Posted by: kotodama | Oct 29, 2021 6:28:17 PM


The practice of ordinary people taking unofficial action to prevent crime or to catch and punish people believed to be criminals.

But now, somehow, we call people who file civil lawsuits to be adjudicated by judges sworn to uphold the constitution and the rule of law vigilantes.

Go figure.

Posted by: Kibitzer | Oct 29, 2021 5:04:35 PM

This doesn't seem right to me. The right to arrest is not the right to put a person in fear of their life. And black-letter self defense law is you can't claim self defense when you initiated the situation. So if brandishing the weapons, or the stop in general, is illegal then you do lose the right of self defense if you put the person in reasonable fear for the life.

There is also the issue of what reasonable and probable means in this law. Those are usually two different standards in the context of seizures. Do they need reasoable suspicion or probable cause?

Plus it requires the crime to be committed in his actual knowledge. None of the previous break ins were so the only question is this trespass, unless you see him with stolen goods I don't see how you have even reasonable suspicion let alone probable cause to say there was a felony burglary. Unless trespass alone is enough which I don't think it is.

Posted by: Matthew S Estrin | Oct 28, 2021 11:25:56 PM

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