Ahmaud Arbery and Georgia’s Citizens Arrest Statute

The story of Ahmaud Arbery’s death is everywhere now that the video of him being shot has emerged. The assailants, Gregory McMichael and his son Travis, are claiming they saw Ahmaud jogging and believed him to “fit the description” of a suspect seen on a security camera during in a break-in committed in their area. They both grabbed guns and proceeded to attempt to stop Ahmaud Arbery. According the Gregory McMichael’s report to police, Ahmaud violently attacked them when they attempted to stop him, and Travis McMichael shot Ahmaud in self defense.

The video has a different story to tell. Arbery appears to attempt to avoid Travis McMichael by running around the other side of the pickup truck, until Travis continues to follow him with a shotgun. At this point, Ahmaud runs toward McMichael and grabs the shotgun and a struggle over the gun ensues. There are 3 shots during the struggle. The third, obviously at point blank range, shows the shotgun pointed directly at Ahmaud’s midsection, at which point he stumbles forward, away from McMichael, and collapses in the street. Evidence related to a break-in hasn’t materialized. Ahmaud Arbery wasn’t even wearing a hoodie.

Gregory McMichael is a former police officer, and two District Attorney’s have recused themselves from the case because of previous relationships with him. One DA issued a statement saying he’d declined charges as the shooting was self defense and fell within Georgia’s citizens arrest statute. Neither Gregory or Travis McMichael have been charged, though a grand jury is going to be convened. The problem being, Georgia isn’t currently seating grand jury’s because of the COVID 19 pandemic. Both of the McMichael’s are going to be walking around, free of charge, at least until that changes, and possibly afterwards.

Questions are what are left after considering the information given to the public. The most obvious is, how would this have been treated differently if the jogger had been a white man. If two Black men had admitted to following him while armed, attempting to use their vehicle to stop him, and then advancing on him with their weapons drawn, shooting the white jogger dead, what would have happened? Racial disparities in the criminal punishment system are well documented. The stage at which the district attorney makes decisions about whether to charge an individual, and what to charge them with, decisions part of prosecutorial discretion, is wrought with disparity.

There is another important question which has yet to be advanced in most of the accounts written so far. How does Georgia’s “citizens arrest” statue actually work? Title 17, Chapter 4, Article 4 of The Georgia Code says, “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.” According to The Code of Georgia, the “citizens arrest” statute goes all the way back to 1863, and was amended or reapplied after review in 2010. It’s worth it’s worth noting 1863 was a big year in US history, for reasons not unrelated to race. Neither Gregory or Travis McMichael have said they witnessed Ahmaud Arbery commit a crime. Gregory McMichael has said he believed Ahmaud “fit the description” of a person who was a suspect in a break-in no one seems to have produced evidence of so far. As long as the McMichaels stick to this defense, “immediate knowledge” is going to be the sticking point which will decide indictment and eventually conviction, and could potentially set a dangerous precedent.

Immediate knowledge is defined as “Knowledge gained without proof (emphasis added), by a direct contemplation of truth, as distinct from discursive knowledge (mediated knowledge) which is always mediated by the data of experience and by logical reasoning. Immediate knowledge may be sensuous experience or a priori, intuitive knowledge.” It comes from epistemology, which is the study of the theory of knowledge. To say it leaves room for interpretation is generous.

Within the first few hours of the story breaking, the word “lynching” was being used. It’s not hard to see why in Georgia, the death of a Black man at the hands of two white men, under what are suspicious circumstances, followed by inaction on the part of the system of criminal punishment would recall the nightmare history of lynching in Georgia. It should be considered, given the history of lynching in the Georgia, and the number of cases in the last decade which have created a mass movement by Black people to feel they need to assert that their lives matter, how do we really expect a Black man out for a run to respond when two white men who aren’t known to him, pull their pick up truck over and advance on him with guns? Without some other pieces of information being revealed which make racist sentiment a clear part of the McMichael’s lives, there is no way to prove race played a role in Travis and Gregory McMichaels decision to follow Ahmaud. In this way, it’s impossible to see what facts the public has and not believe that an involuntary manslaughter charge, at the least, is appropriate.

One of the ways Jim Crow laws were used involved laws which were specifically used against Black people, but may never have mentioned race in the statute itself. Vagrancy laws were among those levied against poor Blacks in the South. Being found without identification and money could expose one to prosecution under vagrancy laws, but more so, they could be used as the stated legal reason for police to harass members of the Black community throughout the south. Segregation increasing poverty meant fewer Blacks in could afford ID, one of the ways segregationists would also attempt to keep Black people from voting. Imagine a “citizens arrest” statute in the hands of racist whites, in a legal, cultural and social environment which already allowed lynchings.

As this case moves forward, it is going to be imperative to follow. Not only because of the obvious need for justice, but because this use of “citizens arrest” as a defense is going to be important for precedent, if not legally, definitely in terms of the public perception. However this story ends, we can guarantee white supremacists and their ‘fellow travelers” among the rest of the far right are going to be watching. They’re going to be watching for the outcome of the the story, but also how the arguments are made concerning this particular incident of “citizens arrest.” They’ll be watching, because like the “Stand Your Ground” laws and the precedents set in those cases, they’re going to be advising their members on how to use “citizens arrest” statutes and arguments to prepare their members for committing violence and being able to not be held accountable by the criminal punishment system.

It will be easy to look at the video which surfaced yesterday, compare it to the account given by Gregory McMichael and assume a conviction is a foregone conclusion. In the country where George Zimmerman went free, Jeronimo Yanez who shot Philando Castille after giving him conflicting orders and shooting him within the span of 12 seconds was found not guilty of manslaughter, and Loehmann nor Garmback who shot Tamir Rice within two seconds of arriving at the park the 12 year old boy played in were even indicted by grand jury, and in which one of it’s two major political parties has ceded it’s facade of decency in favor of explicit white nationalism, a failure to charge and convict Travis McMichael is going to result in a wave of new “citizens arrest” statutes, and in turn, many racially motivated murders where “citizens arrest” is going to be used as the defense. And this, that white nationalists would seize on a lack of indictment and lack of conviction as a model to attempt to get away with murder, will happen whether or not anyone else wants to believe the death of Ahmaud Arbery had anything to do with race. We can close our eyes, and say, “Oh, not everything is about race,” all we want, but to the people who will be following this and deciding whether it can be used to get away with murder in the future, everything is about race and whether or not it advances their desires to commit racially motivated violence.

If you can, please donate to Ahmaud’s family. Chances are they are going to need it in the fight for justice for Ahmaud.

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