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BAD SHOOT: Georgia homicide of Ahmaud Arbery sure looks like murder, not self-defense

May 11, 2020

More and more people across America are staking out positions on the Ahmaud Arbery homicide in Georgia.  Many folks are allowing their personal biases to enter into their personal take on what happened.  And then there are politicians and pundits who are exploiting the case to advance their pet causes.

Leaving out the racial angle and dispassionately looking at the evidence relating to his death, Mr. Arbery’s death sure looks more like murder, not self-defense.

I offer this analysis to give readers some valuable insight should they ever find themselves in similar circumstances…  and so they don’t end up on the wrong side of the law using deadly force over property.

What we know.

Initially, someone released a video of what appears to be Mr. Arbery running behind a pickup truck occupied by two men with guns (reportedly Gregory McMichael and his son Travis). 

Here is the unedited version from LiveLeak.

The Arbery family has now hired one of the Trayvon Martin team to represent the young man’s estate.  And while there may be a claim made that those two white guys hunted down Mr. Arbery for racial reasons, those are speculative and beyond the scope of this piece evaluating if the use of deadly force against the young black man was justified.

That video alone looks a whole lot like a couple of men in a pickup truck hunting down and killing a man jogging down a road.  

And now, a second video has surfaced showing what appears to be Mr. Arbery burglarizing a construction site. 

And some people believe that burglary video justifies those two men pointing guns at Mr. Arbery. 

Not so much.

Here’s an example of someone who doesn’t know as much as they think they do about the law of self-defense.

Even if Mr. Arbery was burglarizing a construction site and stealing valuable tools, that’s not justification for using deadly force to stop him.  Period. 

Nor can someone legitimately and legally use deadly force to affect a “arrest” over a property crime.  

While some states like Illinois (and apparently Georgia) have a provision allowing the use of deadly force to prevent commission of a forcible felony (and burglary is a forcible felony), the US Supreme Court has ruled that you can’t use deadly force against a suspect for a property crime (burglary).

In fact, the case in question, Tennessee v. Garner, has very similar circumstances to this case.  Only in this case, the people shooting an alleged fleeing felon (burglar) weren’t even cops!

Tennessee v. Garner, 471 U.S. 1 (1985)
Tennessee v. Garner
No. 83-1035
Argued October 30, 1984
Decided March 27, 1985*
471 U.S. 1

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Syllabus

A Tennessee statute provides that, if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, “the officer may use all the necessary means to effect the arrest.” Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner’s son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being “reasonably sure” the suspect was unarmed and thinking that he was 17 or 18 years old, and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his son’s constitutional rights. The District Court held that the statute and the officer’s actions were constitutional. The Court of Appeals reversed.

Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22.

[2]

(a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect’s rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.

(b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.

(c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect — young, slight, and unarmed — posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.

Some also said that Mr. Arbery had a hammer while “jogging.”

Doesn’t matter here.

A reasonable and prudent person would not chase after someone with a hammer.  And someone either in the bed of a pickup or in the passenger compartment would have a hard time claiming they feared for their safety from a hammer wielding kid when they could have simply driven away (or even idled away) from their alleged attacker.

One big question mark is why Mr. Arbery was jogging towards the pickup truck in the video.  If he was in fear for his life, or trying to escape those men, why wouldn’t he be running with a lot more vigor AWAY from the truck and the roadway?  After all, a truck can’t drive through trees.  That sure seems to bolster the case that the pickup truck’s occupants ambushed the young man rather than pursued him.  

Sure, the two armed men may have believed (and even with good cause) that Mr. Arbery had burglarized a work site.  They may have even thought he stole some items.  Even more, they might have known about the deceased’s previous criminal history. 

None of that gave them the right to even threaten deadly force against Mr. Arbery.  Much less shoot him dead.

Sure, some will say that Mr. Arbery was trying to disarm one of his killers and his killer shot to protect himself.  Yes, Mr. Arbery probably was trying to disarm his attacker.  But the man he was trying to disarm was committing a felony against the young black man.  As a supposed good guy, you don’t get to claim the mantle of self-defense when you’re committing a felony.

And in fact, if you had a hand in escalating the conflict (such as flipping someone the bird in a road rage incident), you may have lost your ability to claim self-defense if the situation escalates and you use deadly force.  Or in this case, ambushing an unarmed man jogging down the road by pulling guns on him and holding him against his will.

In fact, the first video of the shooting seems to show just that.  These two men can’t claim that the unarmed Mr. Arbery satisfied the “ability, opportunity and jeopardy” three-part test for the justifiable use of deadly force.

  • Ability:  a man jogging vs. men in a pickup truck?  Not so much.
  • Opportunity:  an unarmed man on foot vs. men in a vehicle?  No.
  • Jeopardy:  Would a reasonable and prudent person believe that Mr. Arbery posed a threat of death or great bodily injury to the men in the truck.  No.

Again, even if Mr. Arbery had a hammer, he would pose a threat of great bodily injury to the two men only if they pulled beside him and allowed him a free swing at them with their windows down.

The bottom line:  You are virtually NEVER justified in using deadly force to defend property (or to make a “citizen’s arrest” for the same).  DON’T DO IT.

And if you escalate a confrontation over the theft of property into a deadly force incident, you may in fact jeopardize your mantle of innocence required to justifiably use deadly force against another individual.

These two men will likely face trial.  And absent some pretty profound physical evidence not yet made public, they’ll probably face a conviction in the homicide of Mr. Arbery, officially making his death a murder.

Then the Arbery family attorneys will move on the civil action to take any assets his attackers owned…  Houses, boats, land, business interests, vehicles, tools and anything else they can attach a judgement against. 

All because these two yahoos thought it okay to chase down and then murder a man they thought *might* have stolen something from a construction site.  In other words, justice will be served and rightfully so.

20 Responses to BAD SHOOT: Georgia homicide of Ahmaud Arbery sure looks like murder, not self-defense

  1. Joseph Dirt on May 11, 2020 at 8:34 pm

    I think you may be wrong here. You are falling into the same trap that EVERYONE is in assuming that the facts as they are being presented represent the WHOLE truth.

    From a grainy 10 second video clip you have determined that a gun was pointed at the “jogger”. I’ve watched the video repeatedly and can see no indication that the gun was ever pointed at him until he started fighting to disarm the person with the gun. In fact there is significant evidence in the video to indicate the gun was not pointed at him until the 3rd and final shot. The first shot showed no sign of having hit the jogger, the second shot can be seen to impact at the edge of the road. Only in the frame at the last shot is the shotgun pointed at the jogger and the effects of that shot are nearly immediate and noticeable.

    Last time I checked, it is not a crime to have a firearm on your person in public in Georgia. Open carry of long guns is legal. Without proof of the weapon being pointed at an individual, which is missing from this video before the last shot, there is no justification for the jogger to have attacked the shooter. In fact it could be argued that the only potential murder that is chargeable under the law would be the felony murder of the jogger by the jogger himself.

    If during the commission of a felony, in this case aggravated battery by the jogger, a person who also happens to be the jogger was killed. Had there been someone completely uninvolved in this standing in the yard who was struck by a shot, the jogger could be charged with that person’s death under felony murder statutes.

    I’m not saying that these guys did nothing wrong, clearly they did plenty wrong, but it is not up to me to judge whether what they did constituted murder.

    It will be interesting to see how this all falls out during the trial and then afterwards either watching parts of Georgia burn or the jogger being seen as a martyr who died because of rampant racism and the guys who were in the truck spending a long time in prison depending on the final verdict.

    • jboch on May 12, 2020 at 11:27 am

      Joe:

      “I’ve watched the video repeatedly and can see no indication that the gun was ever pointed at him until he started fighting to disarm the person with the gun.”

      Those good old boys were brandishing their guns pretty aggressively. That’s a felony.

      “Without proof of the weapon being pointed at an individual, which is missing from this video before the last shot, there is no justification for the jogger to have attacked the shooter.”

      Brandishing doesn’t require you to point the gun at the person. And why would anyone attack two armed men in a truck that moments before they were jogging towards?

      You’re twisting yourself into a pretzel to justify the unjustifiable.

      “The first shot showed no sign of having hit the jogger,”

      So that makes it justified? Nope.

      • Bobby Souflet on May 17, 2020 at 12:49 pm

        BULLSHIT! Greg clearly has his weapon at his side while on the 911 call. BTW dumb ass he was NOT jogging! This is a bit one sided but it is the NYT. https://www.nytimes.com/video/us/100000007142853/ahmaud-arbery-video-911-georgia.html?smid=pl-share
        Fake news painted a false picture. Just like “Hands Up, Don’t shoot!” Just like a picture of Trayvon at about 12 and george at about 300 lbs. They paint false pictures. RACE baiting. The dictionary says brandishing is waving. The fact that you said “Good Old Boy’s” shows racism on your part. Pointing the gun would be aggravated assault. Greg does not point until the second shot. Does he have a right to raise his weapon if he thinks Ahmaud MIGHT get the shotgun?
        Ahmaud is running and evading arrest. The first shot may have hit him. But Ahmaud has already started his attack. He decided to attack as he started his zig zag down the street. The first officer on the scene heard the shots. Did Ahmaud hear his sires from 400 yards away? Is that what prompted him to fight? Three options, stop, flight or fight.
        Buying into the fake news of a jogger was your first mistake. Making decisions on little evidence shows a clear lack of understanding the event.

  2. Phil on May 12, 2020 at 4:53 am

    Thank goodness John Boch doesn’t possess a law degree; otherwise, this article would skew even further to the left. Once again, Boch has dealt out the facts like an inebriated poker player during a sneezing fit! LMAO

    • jboch on May 12, 2020 at 11:24 am

      THank you for the ad hominem attack. If you can’t win on the facts, resort to name calling.

      • Phil on May 12, 2020 at 11:44 am

        Missed again John! There is an old saying in law: “If you have the law, you bang the law. If you have the facts, then bang the facts. If you have neither law, nor fact, then bang the table!” P.S
        “ad hominem” literally means “to the person”. Stay in your own area of expertise; that being fiction & humor. Thanks again for the laugh.

      • Bobby Souflet on May 17, 2020 at 1:01 pm

        But you ARE very clueless. First he was NOT jogging. You ASSUMED that the mother was being honest. I can beat you with facts all day. You should have GATHERED facts first instead of titling it “Bad Shoot” Hell by that date I knew 200 times more than you.
        “why Mr. Arbery was jogging towards”-Running FROM the car behind him who joined that chase 3 minutes earlier
        “a lot more vigor AWAY from the truck” Well he was caught at the house and the first 911 caller YELLED at him…He hauled ass down the street. You try sprinting 200+ yards and then run for 4 minutes. You might look like a jogger too.
        “Much less shoot him dead.” Darn, shot while struggling for the gun.
        No need to add more…I’ll just say DUMBASS
        The NYT did a video. They are very one sided. Two words watch-learn
        https://www.nytimes.com/video/us/100000007142853/ahmaud-arbery-video-911-georgia.html?smid=pl-share
        Now go back in and try again. This time be objective and fair instead of biased and racist

  3. SpicyPanda on May 12, 2020 at 1:59 pm

    Wow, John. I never knew we had so many legal experts amongst the GSL family.

    • jboch on May 12, 2020 at 2:27 pm

      All we can do is lead them to water. We can’t make them drink.

      • Bobby Souflet on May 17, 2020 at 1:04 pm

        Well if you suck on their ass they might! Keep sucking John, you will get something.

    • Phil on May 12, 2020 at 6:18 pm

      John Boch is your A#1 Legal Eagle. Follow John and all will be well! LMAO

  4. Me on May 12, 2020 at 5:50 pm

    Me. This is all very disturbing and I don’t know any kid that hasn’t take a look inside a construction site myself included.

  5. Michael Strasser on May 13, 2020 at 5:36 am

    What a garbage post. It is perfectly legal to openly carry a long gun in public in the state of Georgia. Carrying a weapon does not constitute brandishing. The McMichaels at no point brandished the shotgun in the video of the shooting, and the weapon was only pointed at Arbery after he assaulted Mr. McMichael. In any rational reading of the situation, McMichael had a right to defend himself once he was assaulted by Mr. Arbery. That is why prosecutors considered this an open-and-shut case before the racial activists involved themselves in it. Just because the video is “shocking” or otherwise emotionally triggering to you does not mean that this wasn’t a completely justifiable homicide.

    Furthermore, citizens are legally allowed to defend their property with lethal force in many states. The fact that you don’t know the law doesn’t mean it doesn’t exist.

    • jboch on May 14, 2020 at 11:04 am

      So stopping your truck in front of a jogger and confronting him while “open carrying” a long gun in your hands is lawful behavior?

      Good luck trotting that one out. We’ll see how the McMichael’s do with that.

      And an armed man doesn’t get to resort to deadly force against an unarmed individual just because of a simple assault. There better be aggravating factors there.

      • Fred on May 16, 2020 at 12:15 pm

        There’s no way a jury is going to let these jokers off. For one simple reason: It was clear these guys were trying to stop him. Which essentially means they were trying to effect an arrest. While we cannot see the gun brandished, it goes off so quickly it almost certainly was. Your three-part test definitively shows this was a murder. These guys were executing vigilante justice on a man they may have rightfully believed committed burglary.

      • Bobby Souflet on May 17, 2020 at 1:08 pm

        Who says he was jogging? Nice picture fake news paints again. BTW he was RUNNING! Running slow after a long sprint and 4 minutes of running. Nearly gassed out and a last ditch effort so he attacks.

  6. Chuck Pine on May 13, 2020 at 7:10 am

    Remember Trayvon Martin, George Zimmerman case. The news media only shows what they want you to see to support their narrative. I will not make a judgment until all the facts are presented.

  7. Bobby Souflet on May 17, 2020 at 12:22 pm

    Before you typed up your bullshit you should have gotten some answers.
    Jogging or running. The video from 219 clearly shows Ahmaud walking along the street. Pausing in the driveway as he checks to see if anyone is watching, then he hurried inside. While inside the 911 caller gets to the corner. He likely called the McMichael’s first. After about 4 minutes he comes outside, ducks back in the comes out again. The 911 caller yells. Ahmaud then HAULS ASS down the street. The camera shows the McMichael’s get in top follow. Forget JOGGING! That is the bullshit the mother told the news. They chase him up and down those streets for 4 minutes. They pass him and stop, Travis gets out. His father had been in the truck earlier and when they cut him off he got out. He hopped in the back of the truck. He was running, not jogging. If you sprinted 200 yards and then ran for 4 minutes you would look like a jogger. RUNNING from a crime scene. Evading arrest. Feb 11 call, Travis says he thought he might be armed. 2013 Ahmaud was arrested with a .380 auto in his pocket. I too would carry a gun in that situation. For self defense. Ahmaud zigs and zags down the street, which way will I run. He decided to stop running away and instead to fight. Flight or fight. He lost the fight. Fred, get a clue. This is one sided but fairly accurate as to the videos and the police report.
    https://www.nytimes.com/video/us/100000007142853/ahmaud-arbery-video-911-georgia.html?smid=pl-share

  8. John Jamison on May 17, 2020 at 12:50 pm

    You say “brandishing”. The defense team will say OPEN CARRY. He’s not a “jogger”. Where is the evidence of that? At no time on video do we see him jogging. Stop repeating a false narrative.
    You and many others also fail to recognize that he ran toward McMichael purposely. Arbery is the one that engaged in the struggle. You all are going to look very silly when this goes to court. The McMichaels may get convicted of something but it won’t be murder.
    You people also apparently did no research outside of the videos. If you bothered to look up more facts you’d find out that there were a rash of break-ins in the area. Firearms and tools were stolen from vehicles including from the McMichaels.
    You’d also learn that Perez (neighbor who yelled at Arbery causing him to run) was asked by the owner to keep an eye on the property because of multiple videos showing a man resembling Arbery inside the house. Perez told cops it was Arbery on those videos.
    You’d also learn that Arbery was there 2 weeks prior, was confronted by Travis McMichael, reached into his waistband causing Travis to retreat, then the police were called.
    Stop acting like this criminal was an innocent jogger. He clearly was not.
    You people also don’t ask the obvious questions. Why are we only being shown 7 seconds of video inside the home with Arbery on it?
    Stop looking at race and start looking at a pattern of behavior.
    Arbery had a rap sheet = carrying a gun to a HS game, shoplifting, etc.

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