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]
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,
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.