Arbery Murder Trial: Are Citizens Arrests Legal?

One of the key arguments on behalf of the men accused of murdering Ahmaud Arbery is that they were trying to make a citizen’s arrest permitted under a Civil War-era Georgia law.

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The Arbery murder defendants say they were attempting to make a citizen’s arrest. Is that legal?

Nov. 22, 2021, 10:36 a.m. ET

Nov. 22, 2021, 10:36 a.m. ET

The defense attorney Robert G. Rubin, left, with Franklin Hogue, another defense attorney, cited Georgia’s citizen’s arrest law in his opening statement to the jury. Credit…Octavio Jones/Reuters

One of the key arguments on behalf of the men accused of murdering Ahmaud Arbery is that they were trying to make a citizen’s arrest permitted under a Civil War-era Georgia law — a statute that was later largely dismantled by state legislators in response to this case.

Lawyers for the defendants — Travis McMichael; his father, Gregory McMichael; and their neighbor William Bryan — have argued that the men suspected Mr. Arbery of a series of break-ins in the Satilla Shores neighborhood outside of Brunswick, Ga. When the men saw Mr. Arbery running through the neighborhood on a Sunday afternoon in February 2020, their lawyers have argued, their goal was to stop him.

Robert G. Rubin, representing Travis McMichael, cited the citizen’s arrest law in his opening statement, focusing on property crimes, which he said had left the neighborhood “on edge.” He said that Mr. Arbery had been spotted four times via security cameras in a half-built house and that Mr. McMichael had confronted a man emerging from that house on the fourth occasion and felt threatened when the man appeared to reach toward his waist, as if for a weapon.

It was the same house from which Mr. Arbery was seen running on the day he was fatally shot, Mr. Rubin said, giving Mr. McMichael probable cause to assume that a burglary had occurred — and reason to suspect that Mr. Arbery might be armed — thus giving Mr. McMichael the right to make a citizen’s arrest.

The law in question had existed in Georgia since 1863. It allowed residents to arrest each other if they had reasonable suspicion that someone had committed a felony and the police were not present.

In this case, the jury will have to consider whether the men reasonably suspected that Mr. Arbery had committed a felony.

These kinds of laws, similar to “stand your ground” and “castle doctrine” laws that allow people to use force to protect themselves or their homes, exist in man states but are not uniform. Critics argue that they enable people to act out of pre-existing biases and help foment environments that can lead to extrajudicial killings.

“This is based on racism,” said Ira P. Robbins, a law professor at American University who wrote a paper on the issue. “You look at the Georgia law, for example. This is a law that was used for white people to help catch escaping slaves. There is a close connection between citizen’s arrest laws in the South and lynchings.”

Another criticism of these kinds of laws is that ordinary citizens are not well-versed in the complexities of the law when they take matters into their own hands. “It’s scary because it allows for vigilante injustice,” Mr. Robbins said.

Georgia lawmakers dismantled the citizen’s arrest law last spring in response to Mr. Arbery’s killing, repealing the portion that allowed a private person to arrest someone if that person witnessed — or was told about — a crime, or if someone suspected of committing a felony was trying to escape. The legislation carved out some exceptions for business owners, who can detain people on “reasonable grounds” if they are suspected of shoplifting or other thefts. Other exceptions apply to licensed private detectives and security guards.

Gov. Brian Kemp, a Republican, called the former statute “an antiquated law that is ripe for abuse.”

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