High-profile killings of unarmed Black people spark calls for reform
The seeds that inflamed America’s intense national debate over race and criminal justice were planted months before George Floyd was killed by police on a Minneapolis street in late May.
The buildup to the country’s summer of civil unrest began in a quiet subdivision just outside of Brunswick, Georgia, where an unarmed Black man out jogging was shot and killed on Feb. 23 by two armed white men.
When Glynn County Police arrived at the scene, a father and son claimed 25-year-old Ahmaud Arbery had been involved in a burglary of a home under construction. Gregory McMichael told police his son Travis fatally shot Arbery after he “began to violently attack Travis.” The McMichaels and a third man who recorded the shooting, William “Roddie” Bryan Jr., were allowed to go home without an arrest.
Arbery’s mother and local activists refused to accept the police and prosecutor’s narrative and insisted on an independent investigation. But the coronavirus and general apathy over another Black man’s death meant little to no attention was paid to the case. No charges were brought until graphic video of the killing surfaced months later.
The cellphone video showed Arbery jogging through the southeast Georgia neighborhood with the McMichaels and Bryan in pursuit. Moments later, after a struggle over the shotgun with Travis McMichael, Arbery was shot and killed.
More than two months after Arbery’s death, the Georgia Bureau of Investigation took over the case, and within days they had arrested the McMichaels on charges of murder and aggravated assault. Bryan was later charged with felony murder.
In May, the U.S. Department of Justice has since confirmed that it is investigating Arbery’s death as a possible hate crime.
And in June, a Georgia grand jury indicted the three men on murder charges, including malice and felony murder. Travis McMichael’s lawyer said his client intended to plead not guilty. None of the three men had entered a plea at press time.
“I believe from day one, once police saw that video, that there was enough probable cause to arrest them,” says civil rights attorney Ben Crump, who represents Arbery’s mother. “They did not have to let [the McMichaels] go home and sleep in their own beds every night for 10 weeks. We know people in the minority communities are arrested for far less probable cause.” Crump believes the intention of local law enforcement was to “kick the can down the road” and “sweep [the case] under the rug.”
Ultimately, that didn’t happen.
A wave of protests
George Floyd’s death catalyzed mass protests against police brutality across the country and the world, leading to fresh calls for sweeping reform. Renewed attention has been given to the case of Breonna Taylor, an unarmed Black woman in Kentucky who was shot and killed by police in her own home.
In each instance, deadly force was used against a person of color who wasn’t able to fight back.
In Taylor’s case, police broke into her apartment on a no-knock search warrant as part of an investigation of two men they believed were selling drugs, even though those men were already in custody.
Taylor’s boyfriend, Kenneth Walker, believing there was a break-in, fired once. Police returned fire wildly, killing Taylor in a hail of bullets. Her family has filed a wrongful death lawsuit, but no charges have been filed in the case at press time.
In June, one officer involved in the shooting was fired, and the Louisville city council voted unanimously to outlaw no-knock warrants and require officers to wear body cameras. In the same month, Sen. Rand Paul (R-Ky.) introduced federal legislation to ban no-knock warrants.
The killings of Taylor, Arbery and Floyd have remained at the forefront of civil rights protests and have also brought additional scrutiny on laws that go beyond traditional self-defense, ranging from qualified immunity of police officers to “stand your ground” and citizen’s arrest laws.
“Some might ask, ‘Why didn’t the man with the shotgun back up and retreat?’ Under the ‘stand your ground’ law, a person who is under attack is entitled to stand his ground and respond to a threat of grievous bodily harm with lethal force,” says Ronald Carlson, a law professor at the University of Georgia who has closely followed the Arbery case.
“That is going to be contested by the prosecution by saying, ‘Well, the defendants in this case, the McMichaels, set up this scenario, and a person who is the aggressor—we say the McMichaels are the aggressor—cannot invoke self-defense as a defense because they started this whole thing.’”
American self-defense law dates back centuries to English common law and the so-called castle doctrine.
The idea behind the castle doctrine was rather simple: A threatened individual may be able to use lethal force to defend himself or herself within the confines of his or her home.
Race was interwoven into the castle doctrine in the early days of the United States, when only white men could own property and created the legal means to protect it. Native Americans who wanted to defend their homes from colonization and African Americans under attack from lynch mobs did not have the same legal right. This narrative played out in Taylor’s case when Walker was arrested and charged with attempted murder and assault on a police officer for grabbing his gun to defend his home. Those charges have since been dropped.
During and long after the Civil War, castle doctrine and self-defense laws were used to violently safeguard the homes and possessions of white men, argues Caroline Light, the author of Stand Your Ground: A History of America’s Love Affair with Lethal Self-Defense.
“The laws take for granted this appeal to reasonableness, and that’s the problem here,” says Light, senior lecturer on studies of women, gender and sexuality at Harvard University. “What counts as reasonable in legal practice is historically embedded in racial inequality and violence.”
In 2005, Florida became the first state to enact a “stand your ground” law, making a crucial change to self-defense as it had been understood for most of American history: Citizens who feel threatened were no longer required to try to defuse a situation first or retreat before having the right to use deadly force.
Versions of “stand your ground” had existed through case law in some states, but no single statute had been written to enshrine it.
An intense lobbying campaign by the National Rifle Association and the American Legislative Exchange Council, coupled with support from Republican legislators and the Republican governor at the time, Jeb Bush, brought “stand your ground” to Florida. That law would quickly become a model for similar measures across America, particularly in the South.
Florida’s “stand your ground” law states that a person who is in a dwelling or residence has no duty to retreat and can use deadly force if he or she “reasonably” believes that using such force is necessary to prevent death or bodily harm.
What makes the Florida law so far-reaching is the automatic presumption of reasonable fear, overriding previous self-defense laws that required proof that a person felt a reasonable enough level of fear to use deadly force.
“If you start a fight, you shouldn’t be able to rely on ‘stand your ground,’” says Walter Signorelli, a professor at the John Jay College of Criminal Justice and a retired New York City Police Department inspector.
Georgia’s “stand your ground law” came shortly after Florida’s, in 2006. Eventually, more than 30 states would have “stand your ground” laws in a variety of forms.
Carlson says a version of “stand your ground” had been embedded in Georgia case law for a century. But conservative Georgia legislators wanted to codify “stand your ground” in the event of a U.S. Supreme Court challenge.
“Stand your ground” would attract national notoriety in 2012 when George Zimmerman fatally shot Trayvon Martin, a Black 17-year-old high school student in Florida who was unarmed. Charged with second-degree murder, Zimmerman was eventually acquitted on grounds of self-defense.
“‘Stand your ground’ takes common sense out of the equation,” says Melba Pearson, the former deputy director of the American Civil Liberties Union of Florida and a current candidate for Miami-Dade State Attorney. “OK, a person looked at me funny, therefore I’m in fear—I’m gonna pull out my weapon and shoot them.”
Studies show “stand your ground” laws have escalated violence across the country, without evidence of crime deterrence. Compounding the problems is racial disparity data showing the odds a white-on-black homicide is found justifiable is 281% greater than with white-on-white homicide. Also, a defendant is twice as likely to be convicted in cases with white victims compared to cases with nonwhite victims.
What has also been lost in the discussion of the Arbery case is whether Arbery himself had a right to stand his ground. Police assumed he did not, which critics have used as evidence of the local police department’s racial bias.
“Imagine if we don’t know the races of the individuals. Imagine we only know they’re men and one man is unarmed running through the neighborhood. The other two are armed men in a pickup truck with another man in a pickup truck,” Light says. “If you really look at ‘stand your ground’ law and apply it sincerely, the person with the strongest, most persuasive right to stand his ground was Ahmaud Arbery. He was being accosted, he was being pursued, he was being threatened.”
Co-opting the law
What legal defense the McMichaels and Bryan take in the Arbery case remains to be seen. They may say they were implementing a citizen’s arrest under Georgia law. The current version of the law, however, allows a citizen’s arrest if a crime is committed in the presence of or is within the citizen’s “immediate knowledge.” If the crime is a felony and the offender is escaping, the citizen can stop someone with “reasonable and probable grounds of suspicion.” Georgia’s citizen’s rights law can be used only to prevent a violent felony. If that scenario occurs, a person who is attacked could then claim self-defense.
But the law also requires the “immediate knowledge” of the commission of a crime. In the Arbery case, no evidence has been presented of a crime being committed at all.
Waycross Judicial Circuit District Attorney George Barnhill, the second district attorney to recuse himself from the case after Arbery’s mother objected to his personal relationship with the McMichaels, claimed the evidence reviewed exonerated the McMichaels. In a highly criticized move, Barnhill wrote an extensive memo to his successor prosecutor insisting the three men were trying to stop and hold a criminal suspect and the shooting was self-defense.
Citizen’s arrest laws exist, in some form, in almost every state, and Georgia’s dates back to 1863. Supporters say there are instances where these laws have allowed individuals to detain people who are committing crimes, such as shoplifters and muggers, and hold them until the police arrive.
But in the wake of Arbery’s death, critics are now moving to try to get these laws repealed. Opponents say citizen’s arrest laws are a relic of the Wild West and premodern police departments, when residents were left to their own devices to enforce law and order.
Ira Robbins, a law professor at American University, argued in a recent paper that citizen’s arrest laws had run their course. “Placing such power in the hands of ordinary, untrained individuals creates the possibility that citizens will misuse or abuse the privilege,” Robbins wrote. “This risk is compounded by the disparate treatment of the citizen’s arrest doctrine in different jurisdictions and the ambiguities inherent in many of the doctrine’s key features.”
Democrats in Georgia are hoping to repeal the state’s version of the citizen’s arrest law. Both citizen’s arrest and “stand your ground” laws have endured for decades, especially in states once under Jim Crow. But activists say dismantling these laws is a priority to ensure justice for generations to come.
“No matter how daunting it gets, no matter how charged with punishment the scroll, we cannot give up the fight because if we give up the fight, it’s like we’re giving up on their future,” Crump says.
This article first appeared in the August-September issue of the ABA Journal under the headline “Deadly Force: High-profile killings of unarmed Black people spark calls for reform.”