Ahmaud Arbery: No reasonable basis for suspects to cite 'Stand Your Ground' law in Georgia shooting, says expert

The father-son duo who killed Arbery cited stand-your-ground laws and claimed they were making a citizen's arrest


                            Ahmaud Arbery: No reasonable basis for suspects to cite 'Stand Your Ground' law in Georgia shooting, says expert
Ahmaud Arbery (GoFundMe)

Ever since Ahmaud Arbery's fatal shooting garnered national attention, there has been increased scrutiny over Georgia's dubious self-defense laws, also known as "stand-your-ground" laws, which have also been linked to racial profiling. The suspects in the case, two white men, shot dead a 25-year-old black man, who was jogging in their neighborhood, suspecting him of burglary. They were not arrested for over two months after Arbery's death as they cited stand-your-ground laws and claimed they were making a citizen's arrest.

The suspects, 64-year-old Gregory McMichael and 34-year-old Travis McMichael, shot dead Arbery on February 23 in broad daylight while he was jogging. The pair reportedly suspected him to be a burglar they had seen on surveillance footage in the neighborhood and decided to confront him and make a citizen's arrest.

After a video of the assault was recently released on social media, the incident sparked a widespread racial outcry in the country, leading to the father-son duo's eventual arrest. However, the incident has led many to question why the suspects were arrested only after the outrage and how their citation of the state's self-defense laws was considered credible by local law enforcement.

Gregory McMichael, Travis McMichael. (Glynn County Sheriff's Office)

"The 'duty to retreat' is ingrained in American law, having originated from English common law hundreds of years ago when the only one who had the right to take a life was the sovereign, the king," Prof. Pamella A. Seay, Justice Studies, Florida Gulf Coast University told MEA Worldwide. "The exception was the 'Castle Doctrine,' which allowed a person to defend himself in his own home. This is the source of today’s Stand Your Ground laws, creating a lawful protection for those who used deadly force when protecting themselves and their property from actual and perceived threats. There are, though, limits to that lawful protection."

Most self-defense laws in the US state that a person who is under threat of physical injury has a "duty to retreat," but, if the threat continues despite retreating, only then the person may respond with force. However, stand-your-ground laws allow a person to respond to threats or force directly without retreating and without fear of criminal prosecution. 

In Georgia's stand-your-ground-laws, the protection is limited to the use of "reasonable force" up to and including deadly force, that is "necessary to defend" themselves or to "prevent death or great bodily injury" to themselves or a third person or to "prevent the commission of a forcible felony.” (GA Code Title 16 § 16-3-21)

"In the case of Ahmaud Arbery, the stated reason was not to defend oneself or anyone else," the professor said of the McMichaels. "Nor was it to prevent the commission of a felony. The McMichaels said they thought this man had previously trespassed, a misdemeanor, on a nearby residential construction site. Early on, the McMichaels indicated a reliance on Stand Your Ground as a defense to any charges. Yet, there is no reasonable basis under the statute for such a claim."

Demonstrators protest the shooting death of Ahmaud Arbery at the Glynn County Courthouse on May 8, 2020 in Brunswick, Georgia. Gregory McMichael and Travis McMichael were arrested the previous night and charged with murder. (Getty Images)

The professor explained how stand-your-ground has a spotty history of individuals claiming its protection. She stated that hundreds of defendants across the country have sought protection in the states that have adopted the law.

"A large number of them have succeeded," she told us. "One notable claim came from George Zimmerman who successfully presented his case based on being attacked and using his weapon to defend himself and, in the process, killing Trayvon Martin."

George Zimmerman, 28, in February 2012, fatally shot Trayvon Martin, a 17-year-old African-American high school student, who was visiting his relatives at the time of the shooting. Zimmerman, who found Martin suspicious, got into a physical altercation with an unarmed Martin and shot him dead. He later claimed self-defense and was acquitted at trial.
 
"The idea that Stand Your Ground has strong roots. However, it has significant challenges as well. Its use has often reflected racial profiling on the part of the person defending him/herself," A. Seay explained. "The threat of death or bodily harm needs to be reasonable under the circumstances. Simply being afraid of someone who is different from yourself is not a reasonable explanation for use of force. Different jurisdictions interpret the law differently also."

Family of Ahmaud Arbery embrace at the Glynn County Courthouse during a protest of the shooting death of Arbery on May 8, 2020 in Brunswick, Georgia. Gregory McMichael and Travis McMichael were arrested the previous night and charged with murder. (Getty Images)

The professor said that considering the controversies surrounding the stand-your-ground laws, she foresees one of these cases making their way to the US Supreme Court on an equal protection basis or another constitutional question to determine at least some consistency of their application in the country.

More than 25 states in the US have stand-your-ground-laws or similar defense laws. Although all stand-your-law laws are essentially the same, some states may word or enforce them in a different manner than others. 

She also pointed out an additional controversy in Arbery's case, stating that citizen policing only stands under certain circumstances and has limitations, suggesting that the McMichaels reasoning of making a citizen's arrest was not viable.

"Although ordinary people do have the right to make a 'citizens arrest' under some circumstances when they see a felony being committed, that right is subject to limitations," the professor said. "The Georgia statute specifically requires that the incident was 'committed in the presence' of the person making the arrest or 'within his immediate knowledge.' If it was a felony and the perpetrator is escaping, the person doing the arresting must have 'reasonable and probable grounds of suspicion.'"

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