The killing of Ahmaud Arbery, a black man whose family says was out for a jog on the day two white men followed and shot him, has put a sharp focus on open carry, citizen’s arrest and “stand your ground” laws — and when claims of self-defense rightfully apply.
Legal experts and attorneys familiar with state laws in Georgia, where the afternoon altercation Feb. 23 escalated near the coastal gateway community of Brunswick, said the prosecution’s case may likely hinge on cellphone video that was leaked publicly on social media last week and provoked a national outcry.
The video appears to show Arbery’s final moments during a fight on a two-lane residential street in the Satilla Shores subdivision. The Georgia Bureau of Investigation followed up its review with the arrest Thursday of Gregory McMichael, 64, and his son Travis, 34, on charges of felony murder and aggravated assault. It’s unclear if the father and son have an attorney.
“I’ve never seen a video create so much of a public stir as this one has,” Ronald Carlson, a professor emeritus at the University of Georgia School of Law, said.
A newly appointed district attorney is preparing to present evidence in the coming weeks to a grand jury for indictment. As the case continues to unfold, Carlson said, it will be up to prosecutors to make clear who initiated the incident, who was the aggressor, and if the McMichaels’ actions were unreasonable and unjustified under the law.
Previous prosecutor defends actions
The first district attorney in the case, Jackie Johnson of the Brunswick Judicial Circuit, had to recuse herself because Gregory McMichael, a former Glynn County police officer, was an investigator in her office until his retirement a year ago.
In the weeks after the shooting, a second district attorney assigned to the case, George Barnhill of the Waycross Judicial Circuit, declined to pursue charges against the McMichaels. He wrote in a letter in April that there was no probable cause to issue arrest warrants, and he later recused himself from the case because of a conflict of interest. (The new prosecutor assigned to the case, District Attorney Joyette Holmes of the Cobb County Judicial Circuit, hails from metro Atlanta, a few hours away.)
Barnhill wrote to a Glynn County police captain that the McMichaels had “first hand probable cause” to pursue Arbery, and they had told police they believed he was a “burglary suspect” in their neighborhood.
“It appears their intent was to stop and hold this criminal suspect until law enforcement arrived,” Barnhill wrote. “Under Georgia Law this is perfectly legal.”
Surveillance footage from the scene appears to show Arbery, 25, wandering inside an unoccupied home under construction on the McMichaels’ block just before they pursued him.
During the chase, Gregory McMichael was armed with a .357 Magnum, while Travis McMichael held a shotgun, police said.
“Under Georgia Law this is legal open carry,” Barnhill wrote.
Finally, after reviewing a video recorded by a third man — a neighbor of the McMichaels who joined them in pursuing Arbery — Barnhill said it was Arbery who appeared to attack Travis McMichael during a physical struggle over the shotgun.
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NBC News does not know what occurred before the events shown in the video. Attorneys for Arbery’s family have said he was unarmed during the incident and was on a routine jog.
But Barnhill concluded in his memo that “given the fact Arbery initiated the fight, at the point Arbery grabbed the shotgun, under Georgia Law, McMichael was allowed to use deadly force to protect himself.”
Was a citizen’s arrest legal?
Georgia does permit private citizens to make an arrest, although attorneys say it’s more likely used in low-level offenses such as shoplifting.
According to the doctrine, “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.”
Other states’ laws on citizen’s arrests vary: Massachusetts, Pennsylvania and Wisconsin, for instance, only allow arrests for felonies and if they were personally witnessed.
While Georgia’s law is broader, conducting a citizen’s arrest is uncommon and ill-advised in general, Mark Shelnutt, a criminal defense attorney, said, adding that “it’s a dated idea out of ‘The Andy Griffith Show.’” (The state’s law actually stretches back much farther, to the Civil War era.)
The McMichaels told police they believed Arbery was a suspect in a string of burglaries in the community. Police records, however, show that only one incident was reported in the McMichaels’ neighborhood — that of a weapon being stolen Jan. 1 from an unlocked truck parked outside the McMichaels’ home.
Carlson said a grand jury will likely examine whether the McMichaels were engaged in a lawful citizen’s arrest of Arbery.
“The argument could be made that they thought he was a burglary suspect and they believed they had good information he had trespassed on a property already shortly before the incident occurred, and that was their defense in pursuing him,” Carlson said.
But because citizen’s arrests are rare, he said, a jury “is going to wonder why in the world [the McMichaels] took this action, and why they didn’t call the police and let the police sort out the situation.”
If Arbery was running away, he wouldn’t have been a threat to the McMichaels either, Carlson said. The law, he added, “isn’t a license to kill.”
Claiming self-defense
A second component in the case against the McMichaels is whether they were acting in self-defense and had the right to use deadly force — as Barnhill wrote in his letter — when Arbery was killed.
Georgia’s “stand your ground” law was enacted in 2006, and was unsuccessfully challenged in 2012 in the wake of the fatal shooting of Trayvon Martin in Florida. The death of Martin, an unarmed black teenager, and other high-profile cases, including the fatal shooting of a black father in a Florida parking lot in 2018, have led to calls for repeal over how stand your ground laws appear to disproportionately harm people of color.
A February report by the U.S. Commission on Civil Rights examined the racial disparities in the law, finding that there “is some statistical evidence that [stand your ground] laws do not have a significant racial disparate impact.” Still, the perception of recent cases reinforce “that rather than protecting the innocent, Stand Your Ground continues to resonate in tragedy.”
Under Georgia’s law, a person who believes their life or property is being threatened does not have to retreat and can use deadly force if they think it’s necessary to prevent their own death or “great bodily injury” to themselves or another person or to prevent a “forcible felony,” such as rape.
But there are also exceptions when lethal force would not be justified: if the person who used deadly force was either the aggressor and didn’t try to withdraw from the situation; initially provoked the other person with the intent of using force as an excuse to inflict harm; or was engaged in criminal activity at the time.
“The key thing here is you cannot have instigated the incident, and then say you had to kill the other person because you’re defending yourself,” James Yancey Jr., a defense attorney in Brunswick, said.
In instances when a homeowner or a business owner is confronted by a robber on their own property, use of deadly force can appear more cut and dry, although there have been numerous cases in Georgia where “stand your ground” defenses have led to a trial.
Last year, Shelnutt defended Eddie Clayton, who claimed self-defense in his own home when he shot another man four times during a dispute over cigarettes. Evidence showed that the other man had attacked first, and even after Clayton brandished a weapon to scare him off, the other man continued to attack, prompting Clayton to shoot him. A jury found him not guilty of murder.
Shelnutt said the taking of a life is serious, and even if a person has the right to do so under the law, it’s going to initially require a thorough review by police, prosecutors and even a grand jury.
In the case of the McMichaels, “it would be hard to understand why they wouldn’t have been arrested,” Shelnutt said. “When someone loses their life under such circumstances as [Arbery] did, including amid two people with guns and a struggle, it’s a real reach to me that the DA figured out everything based on the word of those with the weapons.”
Carlson said a defense team could posit that the gun went off unintentionally, and at worst, akin to involuntary manslaughter.
Experts said that a self-defense claim would crumble if a jury were to decide the McMichaels had no “immediate knowledge” to believe Arbery was the suspect in a crime and warranted being stopped via a citizen’s arrest, and instead, the father and son were the actual aggressors in the situation by chasing after him.
Yancey added that the video could be interpreted this way: Arbery, who appeared to be caught between two vehicles, was standing his ground and defending his life when he apparently tussled with an armed Travis McMichael to prevent him from using his gun. But the shotgun fired, and Arbery collapsed on the road.
“He has the right to protect himself, too,” Yancey said, adding that the video can’t show what was running through Arbery’s mind when he saw the McMichaels.
“One fact that’s important is him being a black man and seeing two white men with guns. Given the long racial history this country has had, that’s not good optics,” Yancey said. “There’s nothing in that situation that will look good to any black man.”
