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How the law killed Ahmaud Arbery

Originally published: Boston Review by Joseph Margulies (July 7, 2020)   | 

In late February of this year, twenty-five-year-old Ahmaud Arbery was chased down, shot, and killed by white residents of Brunswick, Georgia, during a so-called citizen’s arrest. Four months later, after video of the murder surfaced, the assailants were indicted on murder charges. Protesters rightly link Arbery’s murder with that of George Floyd in Minneapolis and Breonna Taylor in Louisville, who were murdered by the police. Taken together, the three killings illustrate some of the many ways African Americans experience racial violence at the hands of the state and private actors.

But Arbery’s case presents a unique form of violence—lethal vigilantism—not captured in conversations about police. It was enabled by a legal regime that sanctions the predictable murder of innocent black men, so long as the community judges it reasonable. This regime combines citizen’s arrest with permissive gun laws and “stand your ground” self-defense laws. It is the law that unleashed the vigilantism that cost Arbery his life, and we delude ourselves if we think the law will provide justice. We will not see justice until the law has been changed.

First, the facts as we know them. On February 23, 2020, at about 1:00 pm, Arbery went for a jog through a suburban neighborhood in southeast Georgia. Along the way, he saw a house under construction and stopped to wander through. This was apparently not unusual; surveillance video at the site confirms that a number of children and adults had previously walked through the unfinished shell. According to the letter of the law, Arbery’s detour was illegal, but so were the detours of the others who preceded him: all trespassed on private property. Yet the video does not show he committed a crime apart from the trespass, and it certainly does not show he committed a felony such as burglary. After a couple minutes, Arbery left the site and continued on his jog.

A neighbor across the street saw Arbery at the construction site and called 911 to report—mistakenly—a burglary in progress. About two minutes later, while Arbery was jogging, two white men he didn’t know, Greg McMichael and his son Travis, began to pursue him in a pick-up truck. Before his retirement in June 2019, the elder McMichael had had a long career in law enforcement, both as a police officer and as an investigator for the local district attorney, though his law enforcement certification was suspended and his gun taken away in February 2019 after repeatedly failing to complete mandatory training. After the shooting, Greg McMichael told police he and his son believed—again, mistakenly—that Arbery was a fleeing burglar.

I have not been able to determine how or whether the McMichaels learned of Arbery’s presence at the construction site. I don’t know, for instance, whether they were alerted by the neighbor who called 911, or whether they were contacted by someone in the police department. It is quite possible they did not know about the trespass at all. The New York Times reported that Greg McMichael told police that Arbery looked like a person suspected in prior break-ins, and that he and his son grabbed two guns and followed him after he jogged by, suggesting they had no idea about the trespass.

The McMichaels chased Arbery down and attempted to cut him off. Arbery turned around and fled in the other direction. A third person, William Bryan, then noticed the pursuit. An investigator with the Georgia Bureau of Investigation testified at a recent court hearing that Bryan was at his home, and allegedly called out to the McMichaels as they drove by, “Do you got him?” When he got no response, Bryan decided to get in his truck and join the chase. He too tried to block Arbery’s path.

Arbery continued to flee, and both trucks continued to pursue him through the suburb. Finally, as they chased him down, Travis McMichael leaped from the bed of the pick-up truck armed with a shotgun and confronted Arbery. Arbery stood his ground and defended himself, at one point grabbing the barrel of the shotgun. Travis shot him twice in the chest and killed him.

After the shooting, we learned that Greg McMichael had sent a text message in December 2019 to an officer with the Glynn County Police Department. In the message McMichael volunteered, apparently unsolicited, to be on the lookout for intruders at the construction site. He asked that the officer forward the text message to the family that owned the home, inviting them “to call him day or night when you get action on your camera.”

The police officer forwarded the text to the homeowner, who lived two hours away. But the homeowner did not see or open the text until after Arbery had been killed and never asked McMichael to take action on his behalf. Indeed, the homeowner did not learn of the trespass until long after the confrontation that resulted in Arbery’s death. The homeowner also reported that Arbery did not take anything from the site, confirming that Arbery’s only crime was the same trespass that many others had committed.

As the case began to be investigated, the first prosecutor recused herself because Greg McMichael had formerly been an investigator in her office. A second prosecutor from a neighboring judicial district also recused himself because his son had worked with McMichael. Despite his recusal, this prosecutor also took it upon himself to draft a letter taking the position that the McMichaels had acted in lawful self-defense. The case was then assigned to a third prosecutor, who passed the case to the Georgia Bureau of Investigation (GBI) after a video of Arbery’s killing emerged. This video was taken by Bryan while he pursued Arbery. It captures part of the chase and shooting.

The GBI arrested the McMichaels and charged them with murder and aggravated assault. Chris Carr, the Republican Attorney General in Georgia, then assigned the case to a fourth prosecutor, Joyette Holmes, the elected district attorney in Cobb County, an Atlanta suburb. Carr has also asked for the Justice Department to begin an investigation into the case and for the GBI to examine whether the first two prosecutors engaged in any misconduct. Finally, in late May, the GBI arrested and charged Bryan with felony murder and criminal attempt to commit false imprisonment. At a recent court hearing, a GBI investigator testified that Bryan told him Travis McMichael used a racial epithet to refer to the slain Mr. Arbery while they were waiting for the police to arrive.

While these facts are shocking, the law in Georgia is forgiving—indeed, it may make it difficult to bring the assailants to justice. The prosecution will turn narrowly on what the suspects knew, when they knew it, and whether their actions in light of this information were reasonable in the eyes of the local community.

Greg and Travis McMichael claim they were making a citizen’s arrest, the law of which has been with us for centuries. It has changed over the years, but by the eighteenth century it allowed a citizen who witnessed another person commit a crime to detain the suspect until the police arrived. Developed at a time when police were not ubiquitous, the law was intended to allow shop- and homeowners to seize and detain would-be thieves and to hold them until a constable could be summoned. Perhaps there was a time when such a law made sense, at least in limited circumstances. Now, however, it has been subject to withering criticism, especially after the Arbery murder.

Like many states, Georgia expanded the right of a citizen to arrest another person. The opening sentence of the Georgia statute authorizes a private person to arrest another for any offense “committed in his presence or within his immediate knowledge.” That much is faithful to the traditional doctrine. But in the second sentence, Georgia allows a citizen to make an arrest even without direct knowledge, if he has “reasonable and probable grounds” to suspect the person committed a felony and is “escaping or attempting to escape.” Note the distinction. Absent direct knowledge, a private citizen can make an arrest only if he reasonably believed he was chasing a fleeing felon. At trial, then, Arbery’s case will turn on whether a jury concludes the McMichaels had good reason to suspect Arbery had committed a felony.

Therein lies the first failure of the law in cases such as this. It grants private citizens the authority to act on secondhand judgment and empowers their peers to determine whether that judgment was reasonable. Both decisions are apt to be dangerously unreliable.

To begin with, the line between lawful and unlawful behavior, or between misconduct that is a misdemeanor rather than a felony, is frequently unclear, especially at the scene, where information is incomplete and events are still unfolding. Even the police sometimes get this wrong, and private citizens are particularly unqualified to make this judgment, as demonstrated by another disastrous “citizen’s arrest” that took place in Georgia not long before Arbery’s.

In May last year, a twenty-two-year old white woman in an Atlanta suburb chased down a sixty-two-year old black man who had driven from the scene of a fender bender, apparently because he was having a diabetic attack. Because there were no injuries, leaving the scene was not a felony; if he was in fact having a medical crisis, he may not have committed any crime at all. But the young woman had not seen the crash and knew none of this. She chased the older man in her jeep, ordered him out of his car at gunpoint, and shot him before he could get out. He died at the scene. She has been charged with murder. Her lawyer said he was just trying to be helpful.

This points to another reason why we ought not vest private citizens with the power to act on secondhand judgments about criminality. As we have known for many years, whites in this country associate blackness with crime and crime with blackness. The stereotypical association that pairs violence to young black men is particularly strong. Indeed, we saw this at work in the Arbery case. A number of children and adults had trespassed at the construction site—just like Arbery—but apparently none was, in the words of a lawyer for the Arbery family, “presumed to be a criminal.”

So much for the right the McMichaels have claimed to make a citizen’s arrest. What about the shooting that followed? Two other Georgia laws cover that situation: one that protects the right to carry a gun, and another the right to stand your ground.

Like every jurisdiction in the country, Georgia law allows private citizens to use deadly force if they reasonably believe it is necessary to prevent death or great bodily injury. There’s that word again—“reasonably.” Deciding whether defendants reasonably needed to use deadly force, just like whether they reasonably believed a person was an escaping felon, is a question for a jury.

For many years the law of self-defense was subject to an important qualification: outside of their home, people who could safely retreat from conflict had no right to take the life of another. Today, however, the duty to retreat has been replaced in most U.S. jurisdictions by the right to “stand your ground” (SYG).

The history of SYG is the story of an unholy alliance between the National Rifle Association (NRA) and the less well-known American Legislative Exchange Council (ALEC). ALEC bills itself as “America’s largest nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism.” Its membership includes thousands of conservative state and federal legislators, as well as representatives from hundreds of the largest corporations in the country. Together they serve on various task forces that draft and circulate model legislation to advance the interests of its conservative and neoliberal supporters. As the Center for Constitutional Rights described it, “state and local lawmakers meet with conservative, right-wing activists and corporate executives (who pay tens of thousands of dollars for access), and together design model legislation that is then shipped out to state legislatures across the country and passed into law with alarming efficiency.” Almost 90 percent of ALEC’s funding comes from corporate membership dues and grants from conservative foundations.

ALEC boasts that states pass hundreds of its model bills every year, which prompted the Center for Media and Democracy to denounce it as “a corporate bill mill.” Over the years it has promoted legislation that would dismantle protection for workers, privatize public education, and impose mandatory minimum prison sentences of up to three years for possession of marijuana by a first-time offender. ALEC has been behind some of the most socially conservative and controversial legislation in recent U.S. history, including voter ID laws that suppress minority voting, anti-BDS laws that punish support for Palestinian rights, and anti-protest laws that criminalize water and climate activism of the sort that took place at Standing Rock in North Dakota.

Yet its most dangerous model legislation may have been SYG. Florida adopted the first SYG law in April 2005. According to the Center on Media and Democracy, the bill was drafted in part by Marion Hammer, the former head of the NRA who was recently and rightly described as “the most influential gun lobbyist in the United States.” When the time came for the Florida legislature to vote on the bill, Hammer “stared down legislators as they voted, and few had the courage to oppose her.” Within months of the success in Florida, Hammer presented the bill to the ALEC criminal justice task force, which voted unanimously to approve SYG as an ALEC model bill.

ALEC and the NRA quickly began pushing SYG in state houses across the country, and Georgia was among the first states to sign on. The Georgia bill was sponsored by Republican State Senator Greg Goggans, of Douglas, Georgia, a little town about 100 miles from Brunswick, where Arbery was killed. Like the law in Florida, it allows a person to use lethal force to resist the threat of death or great bodily injury, regardless of where the threat occurs and with no duty to retreat. The bill passed the Georgia House by a vote of 115-42, and the Senate by 40-13. When Governor Sonny Perdue signed it into law in April 2006, the NRA released a celebratory statement thanking Senator Goggans and “all the NRA members and lawful gun owners” who pushed for the bill, proclaiming that now “Georgians can defend themselves without fear of being prosecuted.” Before long, support for SYG became a totem of conservative fealty to the gun lobby. Today twenty-seven states have SYG laws on the books, and court decisions have eliminated the duty to retreat in another seven.

SYG laws increase the risk of lethal violence by authorizing the use of deadly force where it was previously disallowed. And in fact, this risk has been realized; research finds that the laws are associated with more homicides and more firearm injuries. Yet SYG does not operate in a vacuum; the risk of lethal violence is amplified by permissive right-to-carry gun laws. Every state in the country, as well as the District of Columbia, authorizes at least some residents to carry a concealed firearm in public. In thirty-five states, the resident must first get a permit, but in the remaining fifteen (Alaska, Arizona, Idaho, Kansas, Kentucky, Maine, Mississippi, Missouri, New Hampshire, North Dakota, Oklahoma, South Dakota, Vermont, West Virginia, and Wyoming), no permit is necessary. Meanwhile, in all but three states and the District of Columbia, residents may also carry a firearm openly (sometimes with a permit, sometimes without). Georgia allows open carry.

Like SYG and citizen’s arrest, the specifics of these gun laws vary modestly from state to state. Some states allow residents to openly carry handguns but not long guns, while some allow the reverse. Some allow certain weapons to be carried but only if they are unloaded. Many require a prospective gun owner to demonstrate proficiency with a firearm; most exclude weapons from specified locations, such as schools, hospitals, and places of worship. But in general, ever since the Supreme Court decision in Heller v. District of Columbia in 2008, which upheld the right of private gun ownership under the Second Amendment, it has become dramatically easier for people to travel the streets of this country armed. Research shows that violent crime went up when states adopted right-to-carry laws.

Taken together, these laws form a dangerous legal regime in Georgia. Any Georgia resident with a permit can carry a firearm. Thus armed, he may chase after and seize anyone he “reasonably” suspects of fleeing from a felony. If the person resists, SYG relieves him of the duty to retreat and allows him to use lethal force if “reasonably” necessary. The trilogy of permissive gun laws, SYG, and citizen’s arrest authorize not merely armed pursuit, but lethal force, with all questions about the limits of the law left to the local community’s sense of what is “reasonable.” And therein lies the second failure of the law: it tolerates lethal vigilantism so long as the community agrees with the defendants that their actions were “reasonable.”

And who is this community? Bryan and the McMichaels are now pending trial in the Superior Court of Glynn County, Georgia. According to the Census Bureau, as of July 1, 2019, Glynn County was 69 percent white. It is part of a judicial circuit that also includes four other counties that range from 75 to 82 percent white. In each county, the percentage of whites corresponds almost exactly to the percentage of voters who cast their ballot for Donald Trump in the 2016 presidential election.

The lethal violence that Georgia law predictably unleashed on Arbery will be approved, then, so long as this community judges it reasonable. And if the defendants are acquitted, it will not be because the law has failed to achieve its purpose. Quite the contrary, it will be because the law has worked precisely as it was designed. That, in fact, is the lesson of George Zimmerman’s acquittal. Zimmerman was part of a neighborhood watch group in an area that had experienced a string of burglaries. He spied an innocent Trayvon Martin in the neighborhood, pursued and confronted him, and shot him during an altercation.

At Zimmerman’s trial, the jury was instructed on Florida’s SYG law:

If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another.

In an interview after the verdict, a juror in the Zimmerman case told Anderson Cooper of CNN that the jury voted to acquit “because of the heat of the moment and the Stand Your Ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.” She added that, at least in her mind, Zimmerman’s “heart was in the right place, but just got displaced by the vandalism in the neighborhood. He went above and beyond what he should have done. But I think his heart was in the right place. It just went terribly wrong.”

In other words, she thought George Zimmerman could hardly be blamed for killing Martin. He acted as a reasonable, well-intended white man who was suddenly presented with an unknown black man in an oft-burgled neighborhood. Things “just went terribly wrong.” Greg and Travis McMichael will no doubt say the same thing.

It is worth noting that the Zimmerman case sparked a backlash against SYG and ALEC, and dozens of corporate members responded to the uproar by allowing their membership in the organization to lapse. This triggered a funding crisis within ALEC, which then withdrew its support for SYG. ALEC has never clarified whether its decision was motivated by Martin’s murder, or to stanch the flow of money from its corporate members; to date, it has never advocated for any state to repeal the SYG laws. (Goggans, the state senator who had sponsored the Georgia bill, also announced his retirement from politics two days after the shooting. At the time, he said he wanted to devote himself fulltime to his orthodontic practice.)

Zimmerman’s acquittal, though notorious, was hardly unique. A careful study of six years of SYG homicides in the United States found that white-on-black killings were nearly three times more likely to be found justified than white-on-white homicides. The disparity is even more pronounced in the fact pattern presented in the Martin and Arbery cases: one victim, one shooter, both male, strangers to each other, using a firearm. Forty-two percent of the white-on-black shootings presenting that profile were found to be justified, but only 8.6 percent of the black-on-white.

Why do we create a legal regime that produces this result? Perhaps as importantly, why, knowing it produces this result, do we allow it to endure?

To understand the cultural impetus behind this regime we have to understand the moment in which it emerged. In their current configuration, citizen’s arrest, stand-your-ground, and permissive right-to-carry laws respond to the imagined decline of whiteness in American life—the supposed emasculation of white men, in particular. The aggrieved point to a range of evidence, beginning with the brute fact that before mid-century, the country will be majority minority. Indeed, in the youngest demographic groups, this is already the case. Fewer than half the children under age 15 in this country are non-Hispanic whites. Demographers project that by 2024 death rates will exceed birth rates for non-Hispanic whites, which means the total number of whites in the country will begin to fall.

But the transition taking place is not simply a passive shift in majority status. To those who fear it, the change is an affirmative assault on whiteness and its longstanding hegemony on the exercise of power. From inside this besieged white mentality, reinforced in daily rants by the president and broadcast widely by the likes of Fox News, the threats seem everywhere, including the nation’s inability to seal its borders from a flood of brown bodies who steal jobs, depress wages, and debase the culture; the ascendance of Black Lives Matter, the so-called “terrorist” organization that has cowed law enforcement; the assault of Confederate statutes and other enduring symbols of white supremacy; the literally unprecedented increase in mortality rates among non-Hispanic whites, especially those with lower education levels; and of course, perhaps most importantly, the election of a black president. To aggrieved whites, such developments are fashioned into a narrative that foretells doom for whites in general and white men in particular.

Like any mobilizing narrative, this one is designed to bring order to a fractious world, create a sense of urgency, and reveal a path forward. The laws operating in Georgia are part of a cultural call to rescue an endangered whiteness from a state of siege. They are meant to appeal to the conservative, white men who form the group most likely to own a gun in this country. They gave Greg and Travis McMichael a purpose and imbued them with a high sense of moral legitimacy. This legal regime is allowed to endure because the thought of abandoning it is too terrifying for many whites to contemplate. Though any thoughtful observer can safely predict that the regime will lead to the murder of innocent black men, and that their murders will go unpunished because the community considers them “reasonable,” this is but the cost to defend whiteness.

In this country we are schooled from an early age to revere the rule of law. But the murder of Ahmaud Arbery makes plain that in many states, the law is not part of the solution; it is part of the problem. Until we reckon with this fact, black men will continue to be hunted and killed by “reasonable” white men.

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