Tag Archives: Arbery

It’s the Same Old South?

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Déjà vu all over again. The ink is barely dry on the conviction papers of the three men who chased and killed Ahmaud Arbery when two more white men repeat almost exactly the same behavior in Mississippi. White father and son charged for chasing and shooting at Black FedEx driver https://cnn.it/3BeEKO6 The only saving grace here is that the Fed Ex delivery man was not physically injured. Both he and the people in the neighborhood who were at risk of being hit by errant bullets escaped with their lives. Also, the other drivers on the interstate highway where the two white men chased their intended victim.

I acknowledge that I don’t know why Federal Express would have a rented but unmarked van in service for delivery of packages, but it doesn’t matter in the end. According to the reporting, the delivery man, D’Monterrio Gibson, was wearing a FedEx jacket, shirt and pants.

But let’s suppose he was somehow behaving in a “suspicious manner” which is one of those eye-of-the-beholder things. One man’s suspicious behavior is another’s harmless curiosity. But let’s suppose that in the process of delivering packages, Mr. Gibson was lingering a bit at some homes. Maybe his attention was caught by something or other. Let’s further suppose that Mr. Gibson’s “suspicious manner” was observed by the father-son team who shot at him and chased him.

The assailants had one and only one course of action: call the police. If it appeared that the “suspicious” delivery man was about to depart the neighborhood, the only course of action was to record the license plate, take photos is possible and await arrival of the police. In the most extreme circumstance such as an observed kidnapping, which does not appear to be true here, they might be justified in following at a safe distance and staying in touch with 911 dispatch to help the police catch up.

Given the reported circumstances, there was no basis for the assailants to chase and shoot at Mr. Gibson. And, while we’re on this, do Gregory and Brandon Case normally sit around during the day with guns at the ready?

The resemblance of this situation to the murder of Ahmaud Arbery is so obvious I am loathe to point it out.

There are other similarities too.

I wrote about some of the disturbing early developments in the handling of the Arbery case arrests and prosecutions. https://bit.ly/3HRlEAs  According to initial reports, many of the same procedures are occurring here: delays in arrests, failure to charge the most obvious and serious crimes. That said, it is entirely possible yet that the Case boys will see their charges upgraded to at least attempted murder.

It seems to me that two forces, at least, are at work here. One, certainly, is the apparent belief among some white men in the South that they are entitled to use deadly force against anyone they deem “suspicious,” serving, in effect, as self-appointed police making what are euphemistically called “citizens arrests.” The second force, all too obvious, is that white men in these places, mostly though not entirely in the South, are all too ready to take matters into their own hands, use violence against unarmed Black men on the thinnest of pretexts. On the face of it, noting here that it is early days in this case, there is little to distinguish this from lynching in old style.

According to the reports, the charges against the Case men were (1) Brandon Case: “feloniously attempting to cause bodily injury with a firearm and a deadly weapon by shooting at an occupied vehicle with Gibson inside.” Presumably a reference to Mississippi Code Title 97. Crimes § 97-3-7:

(2)(a) A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;  (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.  [emphasis added]

Conviction under that section is “imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.” That curious wording appears to give the sentencing judge massive discretion on where to send a convicted felon and for how long.

The father, Gregory Case, is charged with “unlawfully and feloniously conspiring with Brandon Case to commit aggravated assault by attempting to cause bodily injury.” Under the law, conspiracy can be proved by conduct and does not require proof of an overt or explicit agreement.

The assertion of “aggravation” in relation to the assault is important here because, while “simple assault” in Mississippi is defined this way,

(1)(a) A person is guilty of simple assault if he (i) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another;  (ii) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm;  or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm

It is punishable only by a fine ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.

The charges seem correct as far as they go. Time will tell on that. It is concerning, however, thatBrandon Case’s bond was $150,000 and Gregory’s Case’s bond was $75,000. Those seem very light considering that a deadly weapon was involved and that Gibson and people in surrounding homes and vehicles were put at risk by the Cases’ actions (still alleged, of course, and innocent until proven guilty). Also disturbing is Mr. Gibson’s assertion that when he visited the police station the morning after the incident, the police there did not take his claim seriously and, among other things, implied that the incident might have been caused by his own behavior.

I repeat that nothing about this story, so far, indicates or suggests that Mr. Gibson did anything that would warrant his being chased and shot at. It is hard to imagine what circumstances that could have been.

Adding to concerns about the handling of the case is the fact that the perpetrators weren’t arrested for eight days and then only after they came to the station for an interview. The Police Chief said, “investigations take time” and no doubt they do. The Gibson case was likely not the only serious problem the Brookhaven police had on the blotter for the day. However, it involved gunfire and that should have led, one would think, to bringing the suspects in immediately.

Finally, it’s more than a little disturbing that, the day after the attack, FedEx assigned Mr. Gibson the same route. Using the usual cliches that companies almost always use in such circumstances, FedEx’s statement said it “takes situations of this nature very seriously” and that it was “shocked” by the attack. Because, you know “the safety of our team members is our top priority.” Surely someone at FedEx could come up with something more original than those canned statements. And what’s with “leave without pay” in these extraordinary circumstances? FedEx has plenty of resources with which to do better for its employees.

In any case, as noted, it’s early days. The similarities to the Arbery case are stunning and reminiscent of a South many of us had, foolishly, thought was over. The “wild west” character of these incidents is a stark reminder of how far we have yet to go in creating a civilized society that treats all people as worthy of respect until proven otherwise. We will no doubt hear a lot going forward about the legal principle of “innocent until proven guilty.” Fine, but the question remains why the Cases did not apply that principle to Mr. Gibson. Why, indeed.

Kenosha – The Shooting of Jacob Blake

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Seven shots at point-blank range from behind. A literal miracle that the young man is still alive.

I have no idea what actually happened, any more than anyone who was not there. Even for those present, the shock of an event like this, both expected yet not expected, may lead to conflicting understandings of the facts. But I do know a few things.

This was labeled by the media as an “officer-involved shooting,” a formula for reporting that has become commonplace in today’s journalism. In plainer English, it means a police officer shot someone. It does not mean there was a shooting incident in which a police officer was somehow involved. Why the media dresses up these incidents with this deflective language is not hard to understand. It’s a way of de-intensifying the truth, a way of making the reality somehow less disturbing. The language tends to dull the emotional response, especially when the truth is that one or more police officers fired seven times at point-blank range into an unarmed man’s back.

One witness interviewed on camera said there was a fight among some girls that Jacob Blake, who is a security officer, attempted to break up. The witness reported that after the police arrived, Blake walked to his car where his three children were waiting, opened the door and was shot in the back. Seven shots at point-blank range. The witness said Blake was not armed and made no gestures that could be interpreted as threatening to the police who shot him.

Presumably, we’ll learn more about those details. How this incident began, how Blake became involved, who called the police and why, what the police did when they arrived, why Blake tried to leave with apparent determination (walking quickly back to his car) and so on. There is much yet to be known.

But I also know this much.

The president of the Kenosha Professional Police Association issued a statement:

Part 1 – the standard formula of “we feel bad too”:

Anytime deadly force is used, our hearts go out to those affected by it.  We assure you an independent investigation is being conducted by the Wisconsin Department of Justice, Division of Criminal Investigation.

Part 2 – the standard formula of “we need more time:”

Until that investigation is completed, we ask that you withhold prejudgment about the incident and please the let process take place.

Part 3 – the standard formulaic objection to statements made by others suggesting something might be amiss with the police response:

Governor Evers’ statement on the incident was wholly irresponsible and not reflective of the hardworking members of the law enforcement community, not to mention the citizens of the City of Kenosha.

As always, the video currently circulating does not capture all the intricacies of a highly dynamic incident. We ask that you withhold from passing judgement until all the facts are known and released.

Part: 4: the standard formula “let’s all be patient, fair and objective:”

We, along with the citizens of the great City of Kenosha, ask for peace and to let the process play out fairly and impartially.

https://bit.ly/34uOOnO

The Governor’s statement was largely formulaic too, but it’s tone and direction was quite different, explaining perhaps why the head of the police union took such offense at it. For example,

We stand with all those who have and continue to demand justice, equality and accountability for Black lives in our country — lives like those of George Floyd, of Breonna Taylor, Tony Robinson, Denise Hamilton, Earnest Lacy, and Sylville Smith. And we stand against excessive use of force and immediate escalation when engaging with Black Wisconsinites.

I have said all along that although we must offer our empathy, equally important is our action. In the coming days, we will demand  just that of elected officials in our state who have failed to recognize the racism in our state and our country for far too long.

https://bit.ly/34qr3xn

Of course, we understand that an investigation is necessary. No one can know exactly what happened based on the video taken from across the street. However, the similarities between this case and the many that preceded it cannot be overlooked. I am particularly reminded that in the aftermath of the murder of Ahmaud Arbery we were told the same kinds of things. The first official report in that case actually argued that the unarmed Mr. Arbery was responsible for his own death. See my analysis at https://shiningseausa.com/2020/05/08/when-do-we-take-a-stand-injustice-in-georgia/

The Kenosha police union has offered no solace in terms of a reasonable timeline in which to complete an investigation of a case like this. I heard one report stating that the authorities hoped to have a report in about a month. That is hard to accept. A man’s life has been threatened and may yet end tragically. Three young children saw their father shot. Apparently, the police in Kenosha do not wear body cameras. But surely the police know something that could be shared in the immediate future about what transpired. The longer the investigation goes on, the less confidence people will have in its outcome.

The concerns about extended delays for such “investigations” are many. They often take many months despite there being ample opportunity to interview witnesses, collect and analyze physical evidence and evaluate the governing legal principles. Delays also provide increased opportunity for police officers to coordinate their version of events. No doubt this is not the only case under investigation by the Kenosha police department, but under the remarkable circumstances, this case cries out for priority consideration and for investigation by independent authorities. The days of police departments or local prosecutors who work with the police every day investigating themselves should no longer be tolerated. Have we learned nothing from experience after experience with these situations?

Events like this won’t end with this one, that is certain. And, in case you’re wondering, thinking maybe I’m “against the police,” I can assure you I generally favor the retention of a highly trained police force in every community. But I also insist that the police that be properly vetted, trained and equipped with the necessary weapons of community policing and self-defense (is military equipment really necessary and, if so, against whom do they expect to use it?).

It also makes complete sense to me that every community in the country do what the Governor of New York has demanded, upon penalty of loss of state funding: a from-scratch re-evaluation of what each community wants from its police department and the re-allocation of tax and other resources to enable those outcomes. Call it “defunding” if you like, but it’s a common-sense concept in the end – use police for enforcing criminal law and use other resources for mental health and other situations in which enforcing criminal law is not the priority. People of good will can figure this out if they try. It’s way past time to do this.

Meanwhile, we’re left with yet another in the seemingly endless string of deaths-by-police or, if you still insist, deaths by police-involved shooting. Viewed only on the single video that has been published, it’s hard to understand what justification existed for Mr. Blake to be shot seven times in the back at point-blank range.

Kenosha experienced, predictably, rounds of protests and destruction in the wake of the Jacob Blake shooting. The destruction of property provides more ammunition for the “America is under mob rule” crowd of Republican Trump sycophants, but it is not hard to understand why the rage leads to this behavior.

All people of good will hope for Jacob Blake’s survival and full recovery, along with his children who must be traumatized beyond our imagining. Maybe the only clarity here is that we cannot move on until justice is finally done. The sooner the better, and also the righter, the better. I fear the consequences if the police dig in, withhold evidence, stall for time and eventually claim “qualified immunity.” This simply cannot continue. How many times do we have to go through this to learn from it?

When Do We Take a Stand? – Injustice in Georgia

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WARNING: this post contains graphic material that some people will find disturbing. Continue reading at your own risk. The text bolding throughout is mine.

NOTICE: After most of the drafting of this post was completed, I received news that two of the killers had finally been arrested and charged with murder. Rather than rewrite the entire piece, I am leaving it as it was. I hope it will illuminate important issues of “justice in Georgia.” The case has a long way to go. Here, then, is the post:

Normally, I don’t write about criminal matters other than the crimes against humanity being perpetrated by the Trump administration. But I now venture into those dark and troubled waters, drawn by the apparent assassination of another innocent black man by armed white men claiming they thought he was a fleeing burglar.

I do not presume to ultimately judge the guilt or innocence of the killers, although the evidence thus far made public strongly suggests a cold-blooded murder. The presumption of innocence will apply to this case and a trial will be held to determine what crimes may have occurred and what penalties should be imposed. This will take time and the killers will have their opportunity to try to justify their conduct.

But, you may say, aren’t you assuming a crime was committed? Fair question and the answer is an unequivocal “yes.” Why? Here’s why.

When a killing by firearms occurs and the available evidence indicates “probable cause” to believe a crime occurred, an arrest should be made. What then is “probable cause?” Was there probable cause to arrest the killers in this case?

“Probable cause “is the legal standard, compelled by the 4th Amendment to the U.S. Constitution and applied to, among other things, the power of the government to arrest for suspected criminal conduct.

As explained by the Cornell Law School website,

Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed …. https://www.law.cornell.edu/wex/probable_cause]

Further,

An arrest warrant is preferred but not required to make a lawful arrest under the Fourth Amendment. A warrantless arrest may be justified where probable cause and urgent need are present prior to the arrest. Probable cause is present when the police officer has a reasonable belief in the guilt of the suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public security. Also, a police officer might arrest a suspect to prevent the suspect’s escape or to preserve evidence….

To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable cause that a search or seizure is justified. A court-authority, usually a magistrate, will consider the totality of circumstances to determine whether to issue the warrant. [https://www.law.cornell.edu/wex/Fourth_Amendment]

The published video of the incident shows the victim, a 25-year old black man, running on what appears to be a wooded residential or country road. He is jogging at a reasonable pace. If you have observed joggers, as I have literally hundreds of times, his pace is well within the range of normal recreational/fitness running. There is nothing to suggest he is running particularly fast or trying to escape from something. However,

According to a police report obtained by the New York Times, Gregory McMichael, a former police officer and district attorney’s investigator, told investigators the incident began when he spotted Arbery from his front yard “hauling ass” down the street. [https://bit.ly/2SIg4Zt]

So, immediately there is powerful reason to question the killers’ version of events. The jogger was not running as if to escape the scene of a crime. If McMichael was referring to what he observed earlier than the period covered by the video, the fact that Arbery was no longer “hauling ass” should have given McMichael pause. It didn’t.

Beyond that discrepancy, the undisputed facts thus far establish that the killers tracked the victim in a vehicle (two vehicles actually; details are scant about why the third person was trailing along and filming). I have seen nothing reported to suggest they made any attempt to contact the police. If McMichael did contact the police, there is nothing reported to indicate why he could not simply have trailed Arbery in the truck until police arrived to deal with the situation, whatever the situation was.

McMichael’s status as a former police officer does not confer upon him the power to exercise police powers involving the use of deadly force in the absence of an immediate threat to his own safety, a matter to which I shall return.

There are other discrepancies:

After they chased down Arbery, McMichael told police, Arbery and McMichael’s son Travis struggled over his son’s shotgun. McMichael said two shots were fired before Arbery fell to the street, the report said.

In a letter to police, George Barnhill, one of the district attorneys who has recused himself from the case and who saw the autopsy report, wrote that Arbery sustained three wounds during the struggle for the gun.             [https://cnn.it/2ywRHXG]

I have watched the video numerous times. There were three shots.

That’s not all. According to the Washington Post report, which was derived from the New York Times reporting,

They chased Arbery in a truck, according to the report, and Gregory McMichael told police that he shouted to Arbery, “Stop, stop, we want to talk to you,” before, according to their statements, they pulled up beside him in their truck. The report suggests a third person may also have been involved in the pursuit. [https://wapo.st/3dmPT2h]

The bolded portion of that quotation is flatly and uncontrovertibly inconsistent with the video. The killers are ahead of the victim, parked on the road, when the victim jogs up to the truck and passes it on the right.

According to the New York Times reporting, https://nyti.ms/3bbnfjp, the first District Attorney assigned to the case recused herself. The second DA to handle the case, George E. Barnhill, the DA in Waycross, Ga., eventually recused himself also because he was alleged by the victim’s mother to also have a conflict of interest (he disputed that).

Notwithstanding Barnhill’s decision to recuse himself, he wrote a letter to a police captain in the Brunswick Police Department Investigation Division. That letter (undated but written sometime in early April) states that,

 “since I have already given you an initial opinion the day after the shooting [on February 24!], I feel I can still comment on this limited issue. [whether an arrest should be made].

That is an astonishing move, saying in essence, “I am recusing but I am going to continue trying to influence the handling of the case by expressing a detailed opinion regarding whether an arrest is warranted.”

The letter then recites Mr. Barnhill’s extensive background in criminal law enforcement, which, I readily confess, far exceeds anything I know, or professionally knew, about criminal law. It’s also obviously true that Barnhill has seen documents, like the actual autopsy report, that I have not. But I, like Mr. Barnhill, am undeterred.

The substantive part of the letter begins with this conclusory statement:

It appears Travis McMichael, Greg McMichael, and Bryan William were following, in ‘hot pursuit,’ a burglary suspect, with solid firsthand probable cause, in their neighborhood, and asking/ telling him to stop. It appears their intent was to stop and hold this criminal suspect until law enforcement arrived. Under Georgia Law this is perfectly legal,

citing:

OCGA 17 -4 -60 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.”

There are so many things wrong with this, it is hard to know where to begin.

First, a reasonable definition of “hot pursuit,” also known as “fresh pursuit,” is:

An exception to the general rule that police officers need an arrest warrant before they can enter a home to make an arrest. If a felony has just occurred and an officer has chased a suspect to a private house, the officer can forcefully enter the house in order to prevent the suspect from escaping or hiding or destroying evidence. [https://www.law.cornell.edu/wex/hot_pursuit]

The concept also applies to pursuit across a state line, but the only Georgia statute I could find limits “fresh pursuit” to “law enforcement officers” who are persons “employed or appointed by a state or political subdivision who is granted, by state law, the authority to enforce criminal … laws….” Plainly, that definition does not include the McMichaels. Case law in Georgia makes clear that the critical element of “hot pursuit” is the “continuity and immediacy of the pursuit” following the officer’s observation of the offense. State v Hoover, 253 Ga. App. 98, 558 S.E.2d 71 (2001) and cases cited. It seems very doubtful that the doctrine of “hot pursuit” applies here.

The letter then says that Arbery was a “burglary suspect” as if this were an established fact. But the only sense in which Arbery was a suspect in a burglary was McMichael’s asserted but untested “belief” that Arbery “looked like” someone who had been seen, by someone not identified, burglarizing homes in the neighborhood.

The letter then claims that McMichaels had “solid first hand probable cause” meaning that he had “reasonable basis” for believing a crime had been committed by this specific individual. The DA thus accepted McMichael’s asserted belief about Arbery’s crimes as fact when, as far as the published reports reveal it, McMichael had not stated that he had actually witnessed Arbery in the act of burglarizing a home. If McMichael had witnessed such an event, would he not have summoned the police then and perhaps have assisted in Arbery’s apprehension?

If the McMichael’s intent was to stop and hold Arbery, why was it reasonable and necessary to stop him when he was on foot, wearing shorts and a tee shirt and they allegedly had contacted the police (no mention is made of such contact; I am giving benefit of doubt here). What facts led the McMichaels to believe it was necessary to brandish a shotgun and .357 magnum pistol?

Finally, under the statute cited by Barnhill, a citizen’s arrest is authorized only when the crime committee “is committed in his presence or within his immediate knowledge.” Neither of these elements is established in the letter or any other reporting I have seen.

Thus, regardless of anything else, no citizen’s arrest was authorized here and the McMichael’s confronting of Arbery was unlawful and no violence against his person can be explained away in the manner attempted by the Barnhill letter.

Mr. Barnhill also argues that if Mr. Arbery attacked Travis McMichael, Mr. McMichael was “allowed to use deadly force to protect himself” under Georgia law.” [https://nyti.ms/3bbnfjp] The letter contains a detailed recitation of what Barnhill claims to see on the video that he says “clearly shows the shooting in real time.”

Here, then, is where the rubber meets the road and the gross distortion begins in earnest. Barnhill’s narrative says,

Arbery was running along the right side of the McMichael truck then abruptly turns 90 degrees to the left and attacks Travis McMichael who was standing at the front left corner of the truck.

I have reviewed the tape many times, and it is quite clear that (1) shouting is heard before Arbery turns but it is not clear what is said or by whom, (2)  McMichael was in front of the truck when he and Arbery came together but was obscured by the open door of the truck, and (3) the first shot was fired while both men were obscured behind the truck door.

It is therefore beyond astounding that a recused DA would assert on the basis of the video alone that Arbery “attacks Travis McMichael” although there is no doubt whatsoever that a struggle for control of the shotgun ensues when Arbery and McMichael are in front of the truck. But it is impossible, I suggest, to infer from the video alone that Arbery “attacked” McMichael. Of course, Mr. Barnhill no doubt also heard from Mr. McMichael who no doubt made an impassioned case that he was “attacked” and was simply defending himself.

As you think about this, bear in mind that McMichael was wielding a shotgun. Shotguns use a variety of ammunition from very small “birdshot” to slugs (.33” diameter) capable of bringing down a deer or elk. We don’t know what “load” McMichael’s shotgun had, but at point-blank range even birdshot will make a terrible mess of human target. Barnhill’s “analysis” of the video continues,

The 1st shot is through Arbery’s right hand palm which is consistent with him grabbing and pulling the shotgun at the barrel tip.

That is an interesting detail because (1) after disappearing from camera view and re-entering the frame, with two shots now having been fired, Arbery strikes at McMichael with his right hand. A shotgun blast at point-blank range through Arbery’s right palm would almost certainly have disabled if not completely shredded Arbery’s right hand, and (2) a wound to the right palm might just as well have occurred by Arbery instinctively raising his right hand in defense when McMichael pointed the shotgun at him – the video cannot exclude this possibility, yet Barnhill is completely clear in his description that Arbery was “pulling the shotgun at the barrel tip.” Alternatively, in his surprise that Arbery was confronting him and not running away, McMichael could have fired the shotgun and only some of the shot hit Arbery’s hand. Either outcome is just as plausible as Barnhill’s.

Next, Barnhill asserts it is a fact that Arbery initiated the fight, so that

at the point Arbery grabbed the shotgun, under Georgia Law, McMichael was allowed to use deadly force to protect himself.

Here, it seems to me, that Barnhill has it backwards. Wasn’t Arbery equally entitled to defend himself against a shotgun-wielding stranger who, from all Arbery could tell, had been lying in wait for him, had shouted something at him and was reasonably perceived to be a threat to Arbery’s life? And, if Arbery were merely trying to redirect the gun away from his body?

Mr. Barnhill seems all too ready to resolve all the doubts here in favor of the aggressors who initiated the confrontation when other interpretations of the evidence are at least equally plausible.

But there is more. Much more. Here is the next part of Barnhill’s exegesis as to why the killers were innocent of wrongdoing:

Just as importantly, while we know McMichael had his finger on the trigger, we do not know who caused the firings. Arbery would only had to pull the shotgun approximately 1/ 16th to 1/ 8th of one inch to fire weapon himself and in the height of an altercation this is entirely possible. Arbery’s mental health records & prior convictions help explain his apparent aggressive nature and his possible thought pattern to attack an armed man.

Wow. We don’t know what those alleged “mental health” issues were (I can find no explanation in any reporting), but the New York Times did determine from court records that “Mr. Arbery was convicted of shoplifting and of violating probation in 2018. Five years earlier, according to The Brunswick News, he was indicted on charges that he took a handgun to a high school basketball game.” Neither of those factors could rationally lead to the conclusion that Arbery had an “aggressive nature” such that he would attack a man armed with a shotgun.

That leads to Barnhill’s ultimate conclusion – McMichael was being attacked without justification and was entitled under Georgia law to use deadly force to defend himself, citing these statutes:

OCGA 16-3-21 Use of Force in Defense, once confronted with a deadly force situation an individual is allowed to use deadly force to defend themselves or others

Mr. Barnhill apparently believes that the statute permits deadly defensive force even if the “defender” initiated the “deadly force situation.” That is an implausible interpretation of the law. It would mean that if A attacks B with what could become deadly force if the attack is successful, and B responds with what A believes is potentially deadly force, A may proceed to kill B and claim “self-defense.”

OCGA 16-3-23.1 Georgia’ s No Duty to Retreat Law, an individual is not required to back away from or submit to an attack.

Again, the statute surely does not mean that a person who initiates an attack and is met with a forceful response in defense is then free to stand his ground and kill the person defending the initial attack. That is not the situation the “stand your ground law” was intended to permit but it exactly what appears to have happened in the Arbery case.

OCGA 16-3-24[b ] The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.

Same response. The “forcible felony” here would have to be Arbery’s defense against the shotgun that McMichael was wielding. Arbery had nothing but his hands. McMichael may indeed have feared that once Arbery gained control of the shotgun, he might use it to kill McMichael, but McMichael was the initiator of the confrontation and cannot use this statute to justify killing another person in such circumstances.

___________________________

The issue right now is not whether a “self-defense” claim can be sustained. That will be for a jury to decide if there is a trial.

The question is this: why are these killers still at large? Why have they not been arrested and charged? The killing occurred on February 23! Their statements about what happened are inconsistent with the video evidence. It is hard to imagine a clearer case of “probable cause” than this one. Can the police in this case state they have no “reasonable basis” for believing a crime was committed here?

Even if it were true that McMichaels genuinely believed the victim had committed burglaries, the use of deadly force could not be justified as the victim was not threatening anyone at the time of the encounter. The McMichaels were not pursuing someone he had just seen committing a serious crime. They were after someone who was jogging.  It is extremely unlikely that the law of Georgia confers on private citizens police powers that even the police do not possess.

Again, none of us can know with certainty at this point all that the evidence in a trial will establish, but when deadly force is used against an unarmed person not directly observed in the act of violating the law and not also endangering another person, the law should favor securing the perpetrator to prevent him from fleeing, destroying evidence, manufacturing evidence, conspiring with witnesses and many other things that might occur.

I am not accusing the McMichaels of these things, but their future conduct is not the question. There is no way to predict that. There are good reasons for making arrests when probable cause exists and there is no apparent reason they would not apply here. This is how law enforcement is supposed to work. Apparently not in Georgia. More than two months have passed since the killing and the killers are still at large in the community.

Meanwhile, we have the usual platitudes. The Governor tweeted, “Georgians deserve answers.” The Georgia Attorney General was “deeply concerned.”

Closing Note: As mentioned at the outset, arrests of at least two of the killers have now been made. This is a welcome development in a most troubling case, another situation in which white men killed an unarmed black man, were given the benefit of every doubt and more and were only arrested when public outcry finally overcame the institutional and racial factors that initially led the involved governments to look the other way. This is just one of a long line of situations in which strong visual evidence conflicts with the official police narrative exonerating white killers of unarmed black people.

I don’t know all the facts, of course, but, yet again, all the hallmarks of racial injustice are present. It is time society, all of society, took a firm stand against this behavior. Nor should we overlook the role of access to guns plays in situations like this where the passions of the moment may lead someone to grab a gun and initiate a process that, even if not “intended” to, spins out of control and leads to an unnecessary and unwarranted death. We must do better.