Arbery Case

In case you’ve forgotten about this, here’s some background. The short version is that three white guys in two vehicles pursued Ahmaud Arbery, ayoung black man (on foot), trapped him, and shot him to death.

There version of events is that they suspected him of burglary (of a house under construction) and wanted to “talk” to him, and Arbery “violently attacked” Travis McMichael, who was armed with a shotgun and had left the vehicle to engage Arbery on foot.

Recently, I’ve been seeing reports that suggest the McMichaels and their companion are vindicated, that Arbery was the “Jogger” who commonly used jooging as a cover for burglary and shoplifting. The idea appears to be that this proved Arbery was up to no good on the fatal day, and the McMichaels were justified in making a “citizen’s arrest” (as allowed in certain circumstances in Georgia at the time).

The source for these recent claims appears to be a defense court filing, TRAVIS AND GREG MCMICHAEL’S NOTICE OF INTENT TO INTRODUCE EVIDENCE PURSUANT TO O.C.G.A. § 24-4-404(b) AND UNIFORM SUPERIOR COURT RULE 31.1. This document briefly describes 13 “incidents of alleged criminal behavior by Arbery in the past, supposedly showing that the McMichaels had probable cause to believe Arbery was committing a criminal act. It is a request to the court that they be allowed to present Arbery’s history.

The Notice breaks the 13 incidents down into two sections. The first ten list several incidents where Arbery was investigated but not arrested, once when he was trespassed, and a couple of arrests (with convictions). It would be a damning document, for the prosecution

…if Arbery were on trial for something like attempted burglary. He isn’t. The McMichaels are going on trial for murder. These ten incidents do not help the McMichaels unless they can show that they even knew about them the day they killed Arbery. The Notice does not make that claim. Given that the incidents — mostly comparatively minor even if accurately portrayed — happened in various other counties, and as early as 2013. I think unlikely that the McMichaels knew of most when Arbery was shot.

No help.

The final three incidents I consider to be damning to their defense. They describe three cases of Arbery being observed on surveillance video: entering the house under construction, canvassing the interior property and valuables contained Within.”

This opens up a nasty can of worms for them. It does not establish the pattern of criminal activity they apparently hope. Remember, they claim they thought Arbery was burglarizing the house.

The three video clips (I’ve seen two, and can confirm those) show Arbery entering the open structure, looking around, and departing, taking nothing. Prosecution will no doubt observe that this only establishes a pattern of noncriminal activity on Arbery’s part; the McMichaels were aware that Arbery never took anything. The prosecution will probably raise two more points: 1) that surveillance video shows many different people entering and leaving without taking anything (So why did you not pursue those white people, Mr. McMichaels ? Didn’t they do the same thing as Ahmaud?(this is what the feds are basing their hate crime charges on; singling out the black guy)), and 2) that house owner has told the press that nothing was ever stolen.

Possibly the McMichaels truly suspected that Arbery intended to commit a crime. Maybe Arbery was planning something despite months of not doing it. But that does not allow for a “citizen’s arrest” as the law, § 17-4-60, was written then.

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.

In his presence.” “Immediate knowledge.” Knowledge, not suspicion. While police have more leeway with “reasonable suspicion,” civilians do not.

Hypothetically, if the McMichaels had observed Arbery enter the structure empty-handed, and then exit with a circular saw, I’d lean towards saying both “in their presence” and “immediate knowledge.” But they did not see that.

Elsewhere, people have tried making the claim that the “crime” the McMichaels observed was “trespassing.” That generally comes from people who never read § 16-7-21. Entering land or open structures, without damaging anything, is only trespass if:

(1) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose;

(2) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden; or

(3) Remains upon the land or premises of another person or within the vehicle, railroad car, aircraft, or watercraft of another person after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.

Until someone with the proper authority told Arbery to stay off the property, sightseeing as he appeared to be doing isn’t trespass. You don’t get to assume (1) “unlawful purpose” unless you see proof. A hypothetical example would be observing someone pulling a circular saw out of a job box, and stash it somewhere where he could do a quick grab&go later under cover of darkness. The McMichaels have not claimed to have seen such a thing.

So they could not perform a “citizen’s arrest for trespass.

The whole “citizen’s arrest” argument is somewhat bizzare anyway. When police responded to the McMichael’s 911 call and found Arbery dead, the McMichaels never mentioned trying to make a “citizen’s arrest.” They merely claimed self-defense when Arbery allegedly attacked Travis. They said they were just trying to “talk” to Arbery. The “citizen’s arrest” argument came later… froma prosecutor as he recused himself from the case. For conflict of interest. Because he knew and had worked with the elder McMichael.

The Notice of Intent indicates that Arbery was no angel (which I’ve never claimed), but it does not support the defense, and in fact undercuts it.

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2A advocate, writer, firearms policy & law analyst, general observer of pre-apocalyptic American life.

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