A whole FIVE visits from black men, where nothing was stolen, over the course of five months.
This “timeline” is brought to you by the exact same thought process that led Gregory McMichael to assume releasing the video where he murdered an innocent jogger would exonerate him.
So you could intentionally point a gun at someone and pull the trigger in Georgia and have it be “not murder,” even if it doesn’t meet the criteria for a justification defense. Whether or not that applies here is… not something I feel qualified to speculate on in this post.
That’s the thing…it should never have been a “powder keg” to begin with.
When I was a kid my friends and I would poke around homes under construction all the time. Really, it was a favorite thing since in the 70’s there wasn’t much else to do (before computers, only five TV channels, etc…we ran around outside a lot). They are really kind of interesting to check out. See the bones of a house. Neat stuff.
We never caused damage or stole anything but I would hate to think I would have gotten shot for it because someone before me had stolen something and now the site was a “powder keg” and some overzealous neighborhood watch person comes at us with a gun and looking for trouble.
Also, getting shot over theft at a construction site seems a bit much. Who here thinks the death penalty is the appropriate punishment for stealing from a construction site (assuming that even happened)? Who here is ok with the local neighborhood watch becoming judge, jury and executioners all in the space of a couple minutes for what might have been (in their view) a theft at a construction site?
Upon further reflection, the answer seems less clear. Adams v. Carlisle (Ga. Ct. App. 2006) includes the following discussion:
(emphasis added) Adamscites to a 1915 decision (that isn’t available on Google Scholar). But it suggests to me that the answer isn’t clear or well-established and it’s entirely possible that an offense must, in fact, have been committed (and you only need probable cause that the person who’ve arrested did it).
Based on that, it seems that a citizen’s arrest is a really risky thing to do, unless you actually saw the person you’re arresting commit some felony. You’re personally liable for any damages if it turns out after the fact that you’re wrong.
Thanks for this and your correction to me about probable cause.
IANAL, but I’ve done some reading on citizen’s arrest, and, other than Texas, you may only use non-deadly force to citizen’s arrest someone.
So, grappling with them, pushing them to the ground, stuff like that may be acceptable. Starting off with the threat of deadly force, even if they had just witnessed a felony and the perpetrator was escaping, would be illegal, if I am reading things right.
The only time deadly force would be allowed (outside of Texas) would be if they were posing a direct and continuing threat to the safety of yourself or others.
+1. It’s good to see something like relevant case law cited to help clarify certain ambiguities in the law. That’s the sort of thing I would expect an actual attorney to do, one worth his or her salt, so hopefully the prosecutor in the Arbury case is well-versed in the relevant case law and looking for a way to use it as a hammer, rather than trying to look for ways to slip ambiguity in and let these people off.
It seems the only question, going off that case law, is if Arbury’s entering the unoccupied construction area (trespassing at worse, I would think) constitutes a “breach of the peace” and occurred in the McMichael’s presence.
And regardless of whether what the McMichaels did is ACTUALLY legal, I think it damn well ought to be illegal. At worst, the man committed a non-violent misdemeanor, and they chased him down in a manner consistent with an old-school lynching and provoked a deadly confrontation against an unarmed man. Fleeing a violent felony is one thing, maybe (frankly, I still wouldn’t be too fond of bringing about a deadly confrontation if it could be avoided), but not what they actually had reason to believe he did.
ETA:
I looked at Georgia’s self-defense statute, and it wasn’t very clear. I mean, it’s clear enough that the instigator of a violent act is the one who gets lawfully defended against, but then it’s not clear if attempting to initiate a “lawful” (and that’s if we assume for the sake of argument only) citizen’s arrest is allowed to initiate any level of violence or contact to effect the arrest. And a show of force (like showing up with shotguns and a pickup) might just count as a kind of force on its own (or rather, I haven’t ruled it out).
And here’s the post-ETA addition with what I believe is the only applicable portion of the code for self-defense and use of force in Georgia. What’s odd is that citizen’s arrest doesn’t even seem to get a passing mention, and I am left to hesitantly conclude that it must somehow fit within the proper self-defense or use of force statute in Georgia.
And the wording does confirm that “threat of force” is considered a kind of force of its own, and it would certainly seem to me that the McMichaels did just that the way they approached, pursued, and obstructed Arbury, which to me means, unless there is some part of the law that I missed that allows for force to apprehend a non-violent misdemeanor suspect, they were the initiators (and so not defending themselves), even if, as the video leaves some room for interpretation, Arbury charged one of the McMichaels after they obstructed his path. They were (as I posit) unlawfully exercising the threat of force, and he was attempting to use necessary force to extricate himself from that situation (he obviously couldn’t run, because they’d already chased him down, passed him, and obstructed his path at least once in the pickup).
It seems to me perfectly appropriate that there should not only be reasonable grounds for suspicion, but that the suspect must actually be guilty for a “citizen arrestor” to evade liability (i.e. strict liability).
In a police arrest, an innocent suspect is likely to submit peacefully, since (setting aside police corruption) the suspect knows that his physical safety is not in jeopardy, and that he has clearly defined rights, and that due process should exonerate him.
But a citizen’s arrest places the rights of two citizens in opposition. It creates far greater potential for escalating violence than a police arrest. And an innocent suspect will surely be far more likely to resist and escalate the confrontation, since he will know of know of justifiable reason why somebody would be attempting to arrest him, and be more likely to assume that the people attempting to detain him are themselves criminals with ill intent.
Given the notorious unreliability of eyewitness testimony and the potential for error and escalating violence, we should require absolute certainty of a suspect’s guilt for a citizen’s arrest. We can’t have untrained civilians “investigating” crimes outside of the immediate physical and temporal proximity of the crime, we can’t have untrained civilians making subjective judgments about “likely” suspects. The rights of innocent citizens must surely be paramount.
Those are excellent points, Reimann. I agree that citizen’s arrest should be an extremely rare event for cut-and-dried cases, and the arrestor should be taking a significant legal risk if they’re wrong. To set it up otherwise is to encourage vigilantism.
Requiring absolute knowledge of a crime’s commission seems like a pretty basic step toward setting the citizen’s arrest standard high.
Article 34 Paragraph 3 - Passive use of a firearm refers to demonstration of a firearm by a police officer to achieve a legitimate objective.
Maybe I’m missing it but where are the circumstances listed where passive use of a firearm may be used? The only limitations that I see are that it must be for a legitimate objective. Effecting an arrest, preventing a crime or flight are among such objectives. In my state displaying a firearm is considered “constructive authority” and there is no statewide policy that delineates the circumstances when a firearm may be displayed or pointed. I don’t see any limitations/requirements in the Georgia law either but I’d be happy to change my view if you can point me in the right direction.
Aside from being a mindboggling “wtf was he thinking” moment…
It seems to me that the fact that he released the video thinking it would exonerate him could be introduced at trial as an incredibly damning piece of evidence about his state of mind, about what he was planning when he pursued Arbery and initiated a violent confrontation, about how he anticipated it would play out and what he thought he could get away with.
This is from the Georgia code covering simple assault. I would argue that what the McMichaels did, pursuing Arbury and then obstructing his path while visibly armed, constituted simple assault at a minimum:
Specifically, I think Arbury would have been “in reasonable apprehension of immediately receiving a violent injury,” being confronted as he was, unarmed and on foot, by armed men in a pickup who had pursued and blocked him.
The problem with a citizen’s arrest is it can look like an assault to the person who is being “arrested.” Unless the crime was committed in front of the arresting citizen and they both know it then what would you think if someone came out of nowhere, pointed a gun at you and yelled, “Citizen’s arrest! Hands-up!”
I would think I was being assaulted and would definitely consider means of defending myself, up to and including lethal means. Granted they have the drop on me so not good for me but it remains that, given a chance, I will defend myself.
Yup, that’s why I think the standard must be absolute certainty of the suspect’s guilt, which will usually imply immediate proximity in time and space to the crime, which will also imply that a guilty suspect understands that someone trying to detain them is not themselves a criminal with ill intent, but has good reason. Given the potential for escalating violence in a citizen’s arrest, it’s not just the reasonableness of the arrestor’s suspicions that matters, it’s the likely state of mind of the person being arrested.
Further down it defines when a firearm may be used. Are you interpreting that as defining when a firearm may be used actively? If so, why are you interpreting it in that way? If not, why are you not seeing that section as defining circumstances where passive use is appropriate?
I suspect you’ve inadvertently considered that section as being only about active use. But a passive use is also a use. Again, here’s what it says:
If you can find, in that section, any other way that an officer may use a firearm (passively or actively) that apply to this situation, I’d be interested in seeing them. I read that section and didn’t find anything else that looked applicable.