Justice delayed is justice denied. Was Ahmaud Arbery killed for ‘jogging while black’?

When Ahmaud Arbery, a 25-year-old African American man, went out for a jog in Brunswick, Georgia, on February 23 he could not have known that doing so would lead to his death. His killing raises a host of troubling concerns in a country where jogging while black must be added to the outrageous list of hazards facing black men.

Arbery’s death has made headlines since the release of a gruesome video earlier this week showing a former police officer and his son confronting him — a confrontation that ended with Arbery being shot and killed.

After intense pressure from the community and outrage from civil rights activists across the country, the people allegedly responsible for Arbery’s death have only now been arrested. This delay is patently unacceptable, and raises multiple questions.

First, how did an unarmed black man, whose family said was out for an afternoon jog, end up being shot to death? Second, how did George E. Barnhill, one of the district attorneys previously assigned to the case from the neighboring city of Waycross, dare to claim just one day after the shooting that he believed the father and son’s stated attempt to make a citizen’s arrest was “perfectly legal” — in the same memo that he also used to recuse himself from the case? Third, since when does a prosecutor take the word of the suspects in a case in making the ultimate decision as to whether they committed a crime? And finally, how fair and appropriate is it for a prosecutor to apply the “citizen’s arrest” and “stand your ground” laws so liberally in an effort to forego prosecution?

While there is an ongoing investigation, the facts known so far about the conduct of 34-year-old Travis McMichael, and his father, Gregory McMichael, 64, are beyond troubling. According to the police report, Gregory McMichael, a former Glynn County Police officer, told police that they were pursuing Arbery because they thought he was a suspect in a recent string of break-ins in the community.

In fact, only one incident in the neighborhood had been reported to police before the shooting took place: that of a 9 mm weapon being stolen from an unlocked truck at the McMichaels’ home on January 1.

But on February 23, someone in Satilla Shores called 911 to say “a black male running down the street” — Arbery — might be responsible for a rash of burglaries.

The disturbing 36-second video of the McMichaels’ confrontation with Arbery shows Gregory McMichael in the bed of a pickup truck stopped on a residential street, and Travis McMichael standing near the driver’s side door with a shotgun.

Arbery is seen running toward the truck, and then veering to the right to go around it. Once at the pickup’s front end, Arbery darts to the left, toward Travis McMichael. They appear to struggle in front of the truck, although much of the view is blocked by the truck, and then are seen grappling beside the truck and off camera, before they come back into view as the sound of three gunshots are heard. Arbery then crumples to the ground.

As an initial matter, a citizen’s arrest cannot be made unless a crime is committed in the presence of the citizen trying to make the arrest or unless the citizen has “immediate knowledge” of a crime.

It’s possible the McMichaels thought they had such knowledge. They may have been alerted by the owner of a home under construction in the neighborhood, who told CNN he had video showing a person he says appeared to be Arbery in the home on February 23, just before the fatal confrontation.

In a letter from Barnhill to Capt. Tom Jump of the Glynn County Police on February 24, the district attorney notes that “. . . it appears Travis McMichael, Greg McMichael, and Bryan William were following, in ‘hot’ pursuit, of a burglary suspect with solid first hand 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.

But this assessment by Barnhill is flawed. Evidence has yet to surface suggesting that Arbery was involved in any burglary at all. Therefore, how could the McMichaels possess “first hand probable cause” of a crime that does not appear to have occurred? Even more troubling, however, is the fact that a prosecutor would render a legal opinion after recusing himself. This is especially true when the recusal is predicated upon the perceived bias involving a potential conflict of interest. Apparently, Barnhill’s son and the elder McMichael previously worked in a neighboring Prosecutors office.

If the homeowner was correct that Arbery was inside the home, which at that point was in the framing stage, it would constitute the crime of trespass. Nonetheless, there would still be a question as to the legitimacy of the citizen’s arrest. If the McMichaels saw Arbery committing this trespass, they could possibly establish they had ‘immediate knowledge’ that he did so.

Under this scenario, however, there would still be two significant legal hurdles associated with stopping Arbery. First, simple trespass is a misdemeanor under Georgia law. This is important because as it relates to a potentially fleeing suspect, the law only allows for a citizen’s arrest in the event that a person has committed a felony, and is “escaping or attempting to escape.” But here, there appears to be no such felony. Second, there’s no indication that Arbery was running in an effort to “escape or attempt to escape.” His family says he jogged nearly every day in the area. Perhaps he was simply continuing on his way, and resuming his jog, after stopping to look at the construction site. That makes a monumental difference.

Nonetheless, in the absence of a thorough investigation, Barnhill still exonerates the McMichaels in his letter. In the same letter, he waxes poetic about being a “criminal prosecutor for some 36 years.” It would seem then, that someone with this pedigree would know better. It would also seem that Barnhill would be aware that courts have resoundingly rejected the notion that unreasonable force may be used when engaging in citizen’s arrests.

To place this in its proper context, the Georgia Supreme Court has repeatedly made clear that “only force that is reasonable under the circumstances may be used to restrain the individual arrested.” Therefore, whenever the court finds that the force used is not warranted by the specific facts presented, a citizen’s arrest will not be afforded legitimacy.

To argue that the McMichaels should have even brandished their weapons in the first place is questionable.

According to the narrative conveyed by Gregory McMichael, he and his son were innocent parties attempting to effect a peaceful citizen’s arrest when Travis came under attack by Arbery.

It’s unclear what happened in the initial interaction between Arbery and Travis, but when the men come out from in front of the truck, they are both grappling with the shotgun. It appears to show that Arbery was trying to avoid being shot.

Barnhill also backflipped and somersaulted in an effort to clear the McMichaels by saying that Travis McMichael opened fire in self-defense. In doing so, he invokes the “stand your ground law” to suggest that the shooting was justified. Variations of this law, which has been enacted in 34 states, allows a person who is in immediate fear of death or serious physical injury to stand their ground, without having any obligation to retreat.

But there are multiple problems with Barnhill’s analysis. First, under Georgia law, the McMichaels would need to establish that they reasonably believe that force was necessary to protect themselves against another person’s “imminent use of unlawful force.”

It’s quite difficult, however, to make the argument that such force would be reasonable (even if they believed, as they claim, that Arbery was armed). The force used must be proportionate to the threat posed. Pointing a weapon and firing it at an unarmed person attempting to avoid being shot seems pretty disproportionate to me. And to those who suggest that Arbery was engaged in a violent struggle over the weapon, thereby justifying his being shot, I would note the possible problem with that view. Under the law, the shooter cannot be the person who provoked the use of force, and then seek to benefit from the law’s protection.

Now, the McMichaels have been been arrested and charged with murder and aggravated assault, according to the Georgia Bureau of Investigation.

Even though Gregory McMichael was not seen firing a shot, under the law, he would be viewed as an active participant, making him equally responsible for Arbery’s death. Evidence that he aided and abetted his son by arming himself, following Arbery, hunting him down, stopping him and making efforts to detain him is damning in this regard.

While those assessing the facts in this case may have different opinions, and may also come to different conclusions, it’s very hard to argue with a straight face that the McMichaels had a reasonably held belief that force was necessary. As such, there should have been, in my opinion, probable cause on its face to have made an arrest the day this happened. Why this didn’t happen is perplexing indeed.

Fortunately, Barnhill recused himself from the case as a result of a conflict of interest. This stemmed from Greg McMichael’s previously working in the Waycross prosecutor’s office with Barnhill’s son.

As a result, the Georgia Bureau of Investigation (GBI) became involved, and another prosecutor took over. Following the GBI investigation, the McMichaels were arrested and charged. Next, the prosecution will begin. Ultimately, it will be left to a jury to decide guilt or innocence.

The standard for an arrest is not whether you’re definitely guilty, but rather whether there’s probable cause to believe that a crime has occurred. From the evidence we know about, it appears that there should have been enough for probable cause to be established immediately. Why it took so long to make the arrests and pursue justice really shakes one’s faith in our system.

Jogging in broad daylight while black should not amount to a death sentence. And the failure of the justice system to address this obvious fact immediately is a crime in and of itself.