One point I didn’t emphasize enough in yesterday’s post was the timeline. The shooting didn’t happen last week. It happened in February.
Cops have had the video for months.
The district attorney’s already weighed charges against Greg and Travis McMichael and recommended giving them a pass — until the footage of the incident leaked.
Father and son would have walked free as birds if not for the existence of the video, with the full cooperation of local authorities in Georgia. (They’re still free and facing no charges as I write this.) Whether that’s because Greg McMichael is an ex-cop and former investigator and therefore chummy with the DA’s office or because he’s white and Arbery wasn’t, decide for yourself. It’s not either/or.
David French did a deeper dive into the case than I had time to do and flagged this letter from DA George Barnhill. Barnhill has since recused himself from the case but his reasoning suggests a deep bias within law enforcement about what happened here. First there’s this:
Nothing that happened between Arbery and the McMichaels remotely resembles “solid first hand probable cause.” I quoted the same statute that Barnhill quotes in my post yesterday: In Georgia, to make a lawful citizen’s arrest, a crime needs to be committed right in front of you or within your “immediate knowledge.” Not only did the McMichaels not personally witness Arbery committing a crime, literally no one did. Supposedly he resembled a man who was caught on surveillance video recently in the area doing … something, but the specifics of that are unclear. Even the 911 calls made shortly before the shooting, alerting police to Arbery’s presence in the area, couldn’t name any crime he’d committed.
“Arbery had been seen recently on surveillance video in the neighborhood, according to the first caller. Neither call specifies a crime Arbery might have committed.
There’s a guy in the house right now; it’s under construction,” the man told the dispatcher.
The man then gave her an address.
“And you said someone’s breaking into it right now?” the dispatcher asked.
“No,” the man replied, “it’s all open. It’s under construction … “
It went on:
“He’s running down the street,” the man said. The next sentence is garbled.
“That’s fine,” the dispatcher said. “I’ll get (police) out there. I just need to know what he was doing wrong. Was he just on the premises and not supposed to be?”
The next sentence is garbled. “And he’s been caught on camera a bunch at night. It’s kind of an ongoing thing. The man building the house has got heart issues. I think he’s not going to finish it.”
McMichael told cops after the shooting that there had been “several” break-ins in the neighborhood and that Arbery was the suspect caught on surveillance video, but of course he couldn’t know that for sure. And according to local media, as noted by French, there was only one burglary in the area recorded recently: That was the theft of Travis McMichael’s gun from his car on January 1, more than a month before Arbery was “identified” and shot. Another local man claimed he’d had fishing gear stolen but there’s no evidence that Arbery was involved.
So where was the “solid first hand probable cause” that supposedly justified hot pursuit under the citizen’s-arrest statute?
French dug around in Georgia case law and found that the part of the statute that authorizes an arrest based on information in the citizen’s “immediate knowledge” does *not* include knowledge about prior crimes that the suspect may have committed. It applies only to crimes that are in the process of being committed. I suspect Georgia lawmakers who wrote the law were thinking of a scenario in which, for example, you’re in line at the bank and the person in front of you pulls a gun on the teller and demands their money. If you find the nerve to tackle that perp and disarm him, obviously we don’t want to punish you for detaining him.
But hunting a man down in the street while brandishing weapons and demanding to question him? That’s not a citizen’s arrest. That’s called “false imprisonment.” Or, if you prefer, “attempted kidnapping.” Oh, speaking of which — French notes that Georgia case law also says that the citizen’s-arrest statute doesn’t entitle you to question a suspect you’ve arrested. Again, the law isn’t designed to let the average joe play pretend policeman, it’s designed to spare citizens from liability when they interrupt a crime that’s in progress and capture the bad guy.
And there was no crime in progress here, at least none committed by Arbery. Literally no one has been able to say what the alleged offense was.
But the DA’s letter gets worse:
I’m going to ask you to watch the video again here with two questions in mind: Who’s the aggressor? And who’s engaged in self-defense?
NEWS: Graphic video appears to show Ahmaud Arbery, 25 of GA., whose family says he was out for a run, confronted by 2 men who shot him dead saying they thought he was a burglar. A prosecutor wants a grand jury to decide whether the men should be charged. pic.twitter.com/kEYYJW7UlM
— David Begnaud (@DavidBegnaud) May 5, 2020
Arbery was being pursued, apparently by the car with the dashcam. As he approaches the McMichaels’ truck, Travis McMichael steps out out of the cab in front of him — brandishing a weapon. It’s hard to tell what Greg McMichael is doing in the bed of the truck, but given how soon after he fires at Arbery, he must have his weapon out too. Arbery looks like he’s about to swerve left to try to avoid the McMichaels, but once he sees Travis step out to confront him, he veers right to try to pass the truck on the passenger side. Everyone’s momentarily out of frame, but when the camera picks them back up, Travis and Arbery both appear to be in front of the truck. That’s when Arbery makes a move for Travis McMichael’s gun. It looks to me like Greg McMichael takes a shot at him from the bed but I can’t tell for sure.
Barnhill calls this an “attack” — by Arbery, on Travis McMichael.
If you were Arbery, what would you have done? One man chasing you from behind, two men with guns in front of you and demanding to speak with you. You try to run past them and one man steps in your way. You try to run around the other side to escape him and find him walking towards your position to try to confront you. You’re not going to outrun two vehicles; if these guys want to “speak” with you badly enough, they’re going to.
What would you have done?
In Barnhill’s account, Arbery’s the aggressor. Arbery grabbed McMichael’s gun unprovoked. “Arbery initiated the fight,” he has the balls to say at one point. These turds are engaged in a public kidnapping and Barnhill is ready to rule this lawful self-defense by the McMichaels because Arbery tried to defend himself by grabbing Travis McMichael’s gun. And then, for good measure, he blames Arbery’s “aggressive nature” on mental-health problems.
He doesn’t even blame the McMichaels for brandishing weapons. Georgia allows open carry, he notes in another part of his letter, which is true. But I’m pretty sure open carry doesn’t entitle you to use firearms to coerce someone in the course of executing your kidnapping plot.
One of the most disgraceful whitewashes by law enforcement we’ll ever see. I mean, I hope. I don’t want to see what’s worse than this.