The Georgia Bureau of Investigation arrested Gregory McMichael (64) and Travis McMichael (34) for the death of Ahmaud Arbery. (Glynn Co. Sheriff’s Office)

On social media, I have seen numerous people push a video that shows someone resembling Ahmaud Arbery trespassing on construction sites as if that somehow justifies or changes the basic facts in the February 29 shooting of Arbery by father and son Travis and Greg McMichael.

Video released on May 6 of the shooting in a neighborhood outside of Brunswick, Georgia breathed new life into this case. Defenders of the McMichaels say they confronted someone they said fits the description of a person who burglarized several homes in the neighborhood. Those advocating for justice for Arbery said he was shot because of “running while black.”

I don’t want to get into the motivation behind the shooting or why they confronted Arbery. All of that will be brought up and argued in court. The McMichaels are entitled to the presumption of innocence until they are found guilty in a court of law. 

My overarching question is, what defense will they argue? Because there are pertinent facts that demonstrate how problematic this case will be for a defense attorney. 

1. What crime? Arbery was running down the street.

Running down the street is not illegal. Also, claiming this was an attempt at a citizen’s arrest is problematic as Georgia law has two basic criteria: it has to be a felony, and they have to see witness the illegal act or have immediate knowledge

Correction: I was told by a lawyer that I’m factually incorrect. Here’s the language, and I believe I now see what she is seeing. The law reads, “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.”

So these are two situations in which a citizen’s arrest is allowed. 1. a private citizen may arrest an offender if the crime is committed in his presence or within his immediate knowledge. (“Immediate knowledge” is something that should be better defined.) This applies to both misdemeanors and felonies. 2. They may arrest for a felony if they are attempting to escape and there is reasonable and probable grounds of suspicion.

The Georgia Legislature needs to tighten that law up. There should be very limited circumstances in which a private citizen can arrest someone.

Greg McMichael said he saw Arbery enter a home construction site. Still, the owner of the site did not witness him commit any crime other than trespassing (which is a misdemeanor, not a felony). As far as the McMichaels knew, he could have been invited to enter. 

2. Arbery was unarmed.

Georgia has a stand your ground law. It says that you can use force if you reasonably believe force is necessary to protect yourself or a third-party from imminent unlawful use of force. The law clearly states that if you are the initial aggressor, then deadly force is not justified. 

Arbery was running down the street. He was unarmed. Two men with shotguns in a truck, as well as another vehicle behind them, were following him. 

He did not pose a threat. Even when Arbery and Travis McMichael had a physical encounter who posed the greater threat to who? Who was armed? Who was not? Does Arbery not have the right to self-defense? 

He certainly does. The McMichaels were the ones who initiated this through an attempt to detain Arbery. They presented a threat to Arbery. 

3. The McMichaels were not law enforcement.

Arbery was under no obligation to comply with any command they gave. Under Georgia law, they did not have the right to detain him. If they were sworn law enforcement officers making a lawful stop, then the shooting would possibly be justified since he was trying to grab the shotgun, but they were not. 

Greg McMcMichael was, but because of that she should have known better.

I don’t know if Arbury was squeaky clean, but it is irrelevant. This shooting was completely avoidable.

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