The two men accused of killing Ahmaud Abery in Georgia last February claim they were trying to complete a ‘Citzen’s Arrest.’ Now they are charged with murder and aggravated assault. The US Justice Department is investigating this cold blooded killing as a hate crime.
A ‘Citizen’s Arrest is equally as traumatic for the person who is subject to its abuse. Ahmaud Arbery lost his life. His family and friends will be grief stricken forever.
Wall Street Journal 5.13.2020
Defendants in Georgia case claim shooting happened during botched ‘citizen’s arrest,’ a concept that dates to the Middle Ages.
Accused murderers Gregory McMichael and Travis McMichael
The uproar over the shooting death of 25-year-old Ahmaud Arbery in Georgia is focusing fresh attention on the powers and dangers of private citizens taking law enforcement into their own hands.
Attempting a citizen’s arrest can be risky and expose intervening arresters to civil liability—for false arrest or personal injuries—or criminal sanction.
Under the doctrine of citizen’s arrest, private citizens in limited circumstances are allowed to assume the role of police and detain suspected criminals until they can be committed to custody. The legal concept traces back to the Middle Ages in England when local constables acting in the name of the king would cry out for assistance in apprehending a malefactor.
Gregory McMichael, 64, and his son, Travis McMichael, 34, were taken into custody Thursday evening and charged with murder and aggravated assault of Mr. Arbery, a black man.
The arrests of the two white men came more than 10 weeks after the shooting, prompted by the release of a graphic video showing the fatal encounter. Civil-rights activists, lawmakers and the Georgia Attorney General have called for a federal investigation into the handling of the case, with the U.S. Justice Department weighing potential federal hate-crimes charges.
In the video, the McMichaels are seen waiting for Mr. Arbery in a white pickup as he runs along a two-laned street. The McMichaels are armed with a .357 Magnum and a shotgun. After Mr. Arbery runs around the truck, he is approached by Travis McMichael. A struggle ensues, gunshots are heard and Mr. Arbery falls to the ground.
Under the doctrine of citizen’s arrest, private citizens in limited circumstances are allowed to assume the role of police and detain suspected criminals until they can be committed to custody.
The McMichaels told police they pursued Mr. Arbery because he resembled a suspected burglar and that in the course of trying to detain him as part of a citizen’s arrest, Mr. Arbery had violently attacked the son, according to a police report. It couldn’t be determined whether the McMichaels have an attorney.
Attorneys for Mr. Arbery’s family have said he was out jogging in a residential neighborhood outside the city of Brunswick in Glynn County when he was confronted by the McMichaels. Surveillance footage from the day of the shooting appears to show Mr. Arbery wandering around a residential construction site. The attorneys said Mr. Arbery wasn’t armed and didn’t take part in any felony, calling the killing an unjustified murder.
Most states, including Georgia, have statutes codifying the scope of citizen’s arrest, while others base the right on common law.
Georgia’s law states that a private person may arrest an offender “if the offense is committed in his presence or within his immediate knowledge.” The rules are broader for felonies. For more serious crimes, a citizen doesn’t need to witness the offense to pursue and detain the suspect but must have at least reasonable and probable cause to believe that the offender committed a felony and is trying to escape from lawful detention.
In making a proper citizen’s arrest, a person can use lethal force if confronted with a deadly threat or if urgently necessary to prevent a forcible felony, such as an armed robbery or murder, according to Georgia judicial rulings.
Ira Robbins, a criminal law professor at American University Washington College of Law, said the facts that have come out so far suggest any justification for the shooting would most likely rely on a claim of self-defense in the course of a proper citizen’s arrest. As a “stand your ground” jurisdiction, Georgia allows someone threatened with great bodily harm to use deadly force to protect themselves against an aggressor without any obligation to retreat from the confrontation.
But if the attempted citizen’s arrest of Mr. Arbery was improper, then the defendants were the initial aggressors and “their self-defense claim would fall like a house of cards,” said Prof. Robbins.
The numbers of citizen’s arrests around the country aren’t known. The most common scenarios involve security guards and store owners detaining shoplifters, or police officers acting without a warrant outside their jurisdictions when in hot pursuit of suspects.
Courts in Georgia have heard numerous disputes involving claims against citizen arresters.
In 2005, for instance, the state’s highest court examined the case of a convenience store owner convicted of murdering a man outside a storage room previously targeted by thieves. On the night in question, the owner and another customer heard voices outside the store and the sound of breaking plywood. Armed with a pistol, the owner yelled halt. After a few minutes of silence, he fired three times, striking the victim in the head on the other side of a plywood covering.
The defendant “did not attempt to restrain the victim; rather, he shot and killed him minutes after commanding him to halt,” stated the Georgia Supreme Court, affirming the conviction. A judge in a concurring opinion noted there was “no evidence from which one can infer that the intruder intended to steal more than $500 worth of beer and thereby commit felony theft.”
Some citizen’s arrests are less controversial. In 2015, a customer at a bank in Cobb County, Ga., noticed a man passing a demand note to a teller and walking out with money. The customer raced to his car, grabbed a handgun and caught up to the suspect before he could escape, ordering him to the ground until police could arrive, according to the Atlanta Journal-Constitution and other local reports. The customer was hailed as a good Samaritan.
Write to Jacob Gershman at jacob.gershman@wsj.com
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