In a case that can’t seem to get appropriate coverage inside the USA, Canada and the UK are publishing important stories detailing the lynching of a Black jogger by a white ex-cop and his son just as fast as any published by the national press inside the USA. The best review of the footage of the actual killing is probably in this story, by a local news station in Jaxonville.
So what happened here, why are prosecutors declaring this behavior acceptable, and why do I call it a lynching?
First, someone, somewhere in the same city not too terribly far from the homes of the white thugs, apparently robbed some buildings under construction. This is a real problem. Tools and valuable raw materials can be taken from such sites and results in serious economic losses. However, it’s important to note that these are nighttime crimes.
Second, the thugs learned about those crimes and a generic black man description of the person suspected of the crime. The suspect was identified only by a nighttime photo of a dark skinned person on the construction site. There was no name, no residential address, no work address. Just a photo of a dark skinned person on the site.
Next, Ahmaud Arbery, a non-generic Black man who liked to keep fit went for his daily jog and while out running passed in front of the home of the two violent white thugs who precipitated the horror that came next.
The white thugs each grabbed a gun, one shotgun, one pistol. They then jumped into a white pickup and pursued the jogger, being far too physically incompetent to actually keep up with Arbery on his exercise route.
The thugs ultimately pulled in front of Arbery and then illegally stopped their truck in a traffic lane and opened its doors, widening the area the vehicle could blockade and creating a clear road hazard which they should have known was both illegal and unsafe. The driver, a violent white thug named Travis McMichael, got out of the truck with a shotgun. It’s unclear from the video of the passenger rode in the pickup bed the entire time or if that second violent, white thug (and parent to the first) named Greg McMichael had been riding in the cab and then exited and climbed into the truck bed after stopping. If the former, that was also illegal.
The neighborhood jogger, who was known to stop jogging to chat with teenage kids in the area and shoot a little pickup basketball with them, hoping both have a little fun with the kids he loved and to encourage them in healthy pursuits, apparently was disinclined to stop when armed white men yelled at him.
In direct contradiction to the sworn statements of the white thugs in question, the audio records an obvious gunshot sound while Arbery is attempting to move around the illegally and dangerously parked vehicle, to continue his jog and also probably to flee the violent, armed thugs threatening him. After the gunshot noise, Arbery rushes Travis and appears to be attempting to take away the already-fired shotgun in a manner consistent with Georgia’s right of self-defense. In fact, he doesn’t even appear to be attempting to injure Travis in any way, but rather seems to be focussing all his effort in an attempt to wrestle away the weapon that the white thug Travis had already used to attack. During that struggle for the gun, Travis fires two more times, both of these discharges striking Arbery at point-blank range.
The elder white thug, Greg, had been a law enforcement officer who spent part of his career seconded to the local district attorney’s office as an investigator. Consistent with his knowledge of what might have been legal but inconsistent with the facts, both McMichael’s claimed that they were attempting a peaceful citizen’s arrest of someone they legally and reasonably suspected of burglary. In the course of their statements, they each made the specific claim that Arbery attacked Travis before the first discharge of any firearm. This, of course, is untrue as is proven by the video recording provided by a dash cam equipped driver who was about a block behind the relevant action for most of the confrontation, but somewhat closer by the time of the fatal shooting.
Despite the obvious conflict of interest, the DA’s office initially declined to prosecute, then passed the case to the friendly DA of a neighboring jurisdiction who also declined to prosecute. Only after the video footage leaked did a third DA looking at the facts decide to present them to a grand jury. At this point, no arrest has been made. Grand juries, of course, are not required for most charges, and an arrest could easily have been made long before this, though it would have to have been made on a lesser charge than, say, murder. Unlawful discharge of a firearm would do it:
O.C.G.A. § 16-11-103
(a) As used in this Code section, the term:
(1) “Firearm” means any handgun, rifle, or shotgun.
(2) “Public highway” means every public street, road, and highway in this state.
(b) Except as provided in subsection (c) of this Code section, it shall be unlawful for any person, without legal justification, to discharge a firearm on or within 50 yards of a public highway.
(c) This Code section shall not apply to a discharge of a firearm which occurs within 50 yards of a public highway if such discharge is shielded from the view of a traveler on the public highway and occurs at: [indoor locations like shooting ranges and licensed gun dealer’s establishments].
That arrest would permit a whole host of follow on effects, including temporarily confiscating certain weapons for a particular period and would otherwise provide immediate leverage. Please note that Georgia is a civil forfeiture-without-conviction state (that used to be all states, but reforms are underway). Any equipment used in a crime can be confiscated by the government. in this case, that would certainly include the guns at the scene, but also the truck itself. This is not mere detention for the sake of gathering evidence (such as probably happened to the clothing of the McMichaels). The truck would literally become property of the state.
So why didn’t the local district attorneys prosecute these white men who took law into their own hands and chased down a Black man about whom they had no evidence connecting that specific person to any crime? Well, the white DAs decided that the Georgia citizens’ arrest statute provided authority for the initial attack on Arbery’s freedom and the right to self-defense applied to the people who initiated a confrontation, thereby rendering the subsequent violence legal killing rather than illegal murder.
This is, of course, the excuse so often used by those engaged in lynching, when they feel any need for an excuse at all. A Black man might be guilty of something so… private citizens should chase them, and if they react with reasonable fear at being chased, they deem that further justification for suspicion, at which point they bring their weapons to bear, and if the Black man isn’t perfectly docile and subservient when random white people chase him down and threaten him with a gun, then his actions are deemed “scary” and the white people are legally entitled to shoot him to death. Or drag him down to the local park for hanging from a well-placed oak, the white thugs being in fear for their lives the entire time.
There is no way that chasing a random Black man in daylight in any way meets the tests required to legitimize a citizen’s arrest under Georgia statute:
O.C.G.A. § 17-4-60
Grounds for arrest
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.
Of course, the crime alleged – a nighttime burglary days before – did not happen in the presence of these two thugs. Nor did it happen within their “immediate knowledge” which would require them to be actual witnesses of some sort. The case law in Georgia is not clear to me, but the (apparently) controlling case seems highly relevant and as if it could help us a great deal. That case is Delegal v. State, 109 Ga. 518 (1900). Although quite old, Delegal also involves a shooting death and has, like the grounds-for-arrest statutory section above, has not been superseded in the intervening 120 years, if 30-year old citations by the Georgia Court of Appeals are still good. (I suspect they are, since § 17-4-60 at the end of the 2019 Georgia state legislative session is still identical verbatim to the same provision used 120 years prior in 1899 – this is not an area of law that appears to be changing over time.)
In Delegal, two men (Townsend and Hopkins) are asked by a mayor to arrest prior participants in what was alleged to have been a riot (per legal definition). The two men spoke further with the Sheriff, and though there were nods towards making them “official” helpers in the case, they were never deputized according to any statute or recognized administrative power. Thus, when they approached the house of Henry Delegal, they were doing so as private citizens and the only way they could legally bring about an arrest was according to citizens’ arrest provisions. The Supreme Court of Georgia writes:
The offense for which the accused was sought to be arrested was a misdemeanor. It was not committed in the presence of either Hopkins or Townsend, nor, as far as appears from the evidence, did either of them have any immediate knowledge of the offense. Hopkins, the survivor, was doubtful, according to his own testimony, as to whether he was in Darien at all on the day of the alleged riot, but … states he believes he was there in the afternoon when the troops arrived. At that time it appears that the riot, fi there had been one at all, was over.
Compare this to the situation involving the McMichaels’ knowledge of the burglary. Neither was present during the burglary itself, and though we don’t get a rigorous definition of “immediate knowledge” in case law, the clear implication is that even being in the vicinity of the crime wasn’t enough. There had to be have been some sort of legally significant observation of the circumstances of the crime itself. The exception is a citizen’s arrest during the process of escape from a felony, at which point merely reasonable and probably grounds of suspicion are sufficient.
Delegal ended up in a shootout with Hopkins and Townsend, as they, too, were acting like violent thugs and far exceeding any authority they might have had under statute. Despite this, Delegal was charged with murder and attempted murder for firing after the men pushed their way into his house after talking to him through a window:
As Hopkins entered the house, Townsend, the deceased, came up the steps and upon the porch or piazza, when Delegal shot and killed Townsend and shot at Hopkins, wounding him slightly. Delegal, in his statement, said that when he reached the corner of the room he heard some one [sic] say “I done killed one son of a bitch, and I don’t mind killing another.” He claims that he then saw Townsend throw up his gun as if to shoot, wdnereupon [sic] he shot Townsend.
Delgal was convicted when the jury was told that Townsend and Hopkins had legal authority to conduct an arrest. A motion for a new trial in which the jury would not be so instructed was denied. Delegal appealed all the way to the Georgia Supreme Court, thus this ruling.
There is a difference between the power of an officer and that of a private individual to arrest without a warrant. An officer may make an arrest -without a warrant, “if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.”
Pay attention to that last bit. It was that last bit that the trial court in Delegal had used to tell the jury that Townsend and Hopkins were legally empowered to make an arrest while threatening Delegal with firearms.
Now, the difference between felony and misdemeanor is only relevant in one particular circumstance: if the suspect is trying to escape the scene of a felony. This allows citizens to effect an arrest when they have no first-hand knowledge, but are standing on the sidewalk when someone is running away from something and they hear a shout like, “Stop that guy! He shot an unarmed Black man!”. But Arbery was not fleeing the scene of a felony. Arbery did not attempt to “escape” in any sense of the word until after the McMichael thugs attempted to initiate an arrest. They weren’t near the scene of the crime, the circumstances were so different as to disallow the possibility that they thought this was a repeat crime (daylight hours when people would be at the construction site so as to make theft by stealth impossible, not carrying any stolen items – which would tend to be bulky, etc.). Arbery’s jogging was free movement, not “escape”. So to my reading, the legal situation of Townsend & Hopkins appears to be no different from the legal situation of the McMichaels when they initially sought to make their arrest. This means that even reasonable and probable grounds for suspicion are entirely insufficient for them to have any legal authority at all. They are in the same situation as someone attempting a citizen’s arrest for a misdemeanor. So what is that situation of both pairs of aggressors, analyzed by the SCG in Delegal?
As before remarked, unless the offense is committed in the presence of a private individual or within his immediate knowledge, he can not make any arrest for misdemeanor. He has no power or authority to do so whether he has time to sue out a warrant or not. “Where an offense is committed in his presence, he must arrest the offender then and there, and if he fails to do so immediately, his power to do so at all is gone. He has no power to arrest in order to prevent a failure of justice for the want of an officer to issue a warrant. This power is given to public officers only, and not to private individuals.
So… there’s really no reason at all to think that Mssrs Thug McMichael had any legal authority whatsoever to stop Arbery, much less point a weapon at him (the mere pointing of the weapon being a crime). But what about any reasonable thoughts that permitting Arbery to go on his way might have led to bad outcomes? Well, we already know that any thought of “failure of justice” is insufficient to justify the actions of the McMichael gang. What if they just generally thought him a dangerous criminal? After all, the crime for which Delegal was suspected was that of Riot, which can involve quite violent behavior. Don’t worry, the Delegal court has us covered there as well. In discussing the admissibility of evidence that Hopkins was afraid for his life in the presence of Delegal, the SCG opined:
…[W]here the arrest is made by a private individual when the offense has been committed in his presence or within his immediate knowledge, and he is resisted and injured by the party he seeks to arrest, he may give in evidence the fact that an offense was committed in his presence. If, however, the offense is not committed in his presence and he subsequently undertakes to make an arrest for it, he can not justify the arrest or the attempted arrest by proving that an offense was committed. Nor can he justify by showing that an offense was committed in his presence and that he then waited two days before attempting to make the arrest.
Delegal was not immediately cleared of the charges by a supreme court act of vacation with directed verdict, but the decision in Delegal was unanimous and ordered a new trial given with many favorable rulings on the admissibility and construction of certain pieces of evidence. The SCG plainly thought it was reasonable for a man, knowing that there was no warrant for his arrest, to resist armed intrusion of his house by people seeking to execute a citizen’s arrest under the same statutory authority present in the O.C.G.A. today.
So what the fuck is going on here?
Neither McMichael had any authority to make an arrest, not having been present in the vicinity of the burglaries that they alleged to be relevant. The best relevant authority places the right of self-defense in the hands of the victim of the unlawful arrest attempt, not the citizens attempting the arrest. To the extent that lethal force is authorized at all, it appears that only Arbery has the right to its use, having been threatened with apparently illegal action that, let’s not minimize, also apparently rose to the level of attempted murder.
And yet two DAs not only declined to prosecute, but (IIUC the reports about the case) issued statements to the press stating that the actions of the Thugs McMichael were legally authorized by a citizen’s arrest provision that plainly does no such thing.
The answer, of course, lies in two things. The first is that despite court precedent, there is a strong legal tradition in the south of lynching. Lynching is the extralegal killing of a person for crimes real or imagined without any effort to determine whether or not the accused is actually guilty paired with surrounding behavior that creates a racially threatening atmosphere intended to intimidate Black folk and their allies to keep them under white control. The second is that at least the first two DAs (and very possibly the third) could very well have been corruptly influenced by Greg McMichael’s close relationship to the first DA’s office and casual relationship with the other offices in question. (To the extent that this makes you think better bout them in any way, each of those first two offices, after deciding not to prosecute, later recused itself thus allowing the 2nd and now 3rd review to happen. Whee! Yay, justice!)
Even the third DA did not express a wish to pursue charges in any meaningful sense until the video conclusively showing that the first shot occurred before any physical altercation between Arbery (who appears to be attempting to simply ignore the thuggish, white jerks and jog around them) and the lethally violent Travis. Was this merely because he hadn’t had a chance to review the evidence before the video leaked? Or was he, too, going to sweep this lynching under the rug in the way of so many DAs with so many past lynchings of Black men? Unfortunately, we can’t be sure. Since it’s easy as pie to get an indictment under grand jury statutes when prosecutors want to do so, if the grand jury returns no bill, we’ll have at least some good reason to believe that his office, too, is corruptly shielding white murderers of Black men.
The long and short of this case is that, like so many murders of Black men, the white killers escaped without arrest and may never face a day in prison for the slaying they committed. The DAs in Georgia knew or should have known that the McMichael family had no immediate knowledge of the burglaries and that they were acting on a vague description and zero legal authority when they threatened Arbery with loaded firearms. The local DAs should never have expressed any opinion on the killing whatsoever, and should have immediately issued citations and/or misdemeanor arrest warrants for violations of law which were immediately apparent (such as stopping in and blocking traffic on a public highway) which would have given them additional tools and leverage useful to investigate the crime.
The long and short of this case is that this is not a citizen’s arrest gone wrong. This is mob justice, this is lynching, gone exactly as intended: white people using their weapons to intimidate Black people and punish them without regard to guilt or innocence.
And if that wasn’t bad enough, there are now reports that the person who filmed the footage demonstrating conclusively that the McMichael gang both threatened AND shot before Arbery did anything that might be remotely construed as threatening, has been doxxed and is now enduring threats and harassment for having the temerity to witness a lynching and not shut up about it. The Georgia Bureau of Investigation is investigating the unauthorized release of the witness’s information and the subsequent threats/harassment. Should we even bother to get our hopes up that they’ll arrest anyone or that they’ll fire any law enforcement officer involved in the release of protected information? Pffft. As if.