Jurisprudence

Georgia Can Honor Ahmaud Arbery by Repealing Its Horrible Citizen’s Arrest Statute

Ahmaud's family members wearing a #IRunWIthMaud shirt and mask.
Jasmine Arbery, sister of Ahmaud Arbery, and Wanda Cooper-Jones, Ahmaud’s mother, comfort each other while people gather to honor Ahmaud at Sidney Lanier Park on May 9 in Brunswick, Georgia. Sean Rayford/Getty Images

As the details of Ahmaud Arbery’s murder and the initial refusal of local authorities to prosecute his killers have come further to light this month, my thoughts have been turning more and more to my grandmother.

As a child of the Great Depression and the granddaughter of enslaved people, Wanda Crow was born into a family that survived the worst of America. My grandmother’s stories of my family’s survival in the midst of tribulation—including one dating back the late 1800s, describing how my grandfather’s uncle was nearly lynched by the KKK—resonate even more whenever another modern American horror story like that of Arbery’s death is made public.

And though my great-uncle narrowly escaped, my grandmother still holds a recollection of stories of how her mother witnessed those who didn’t—throngs of mangled black bodies, hung by the dozen from oak trees in Arkansas.

These public, celebratory mutilations, which often targeted farmers and landowners, weren’t simple executions. They were warnings—threats of violent torture for any black person who sought equality, or worse, political power. These crimes also revealed the perpetrators’ deep fear of their black neighbors—a uniquely American fear that reduces innocent black people to criminals, so unworthy of life that their death is fit for a stage.

With the emergence of video footage of Arbery’s killing this month, his murder has been correctly recast as a “modern lynching.” As with similar tragedies of the recent past, it should force Americans to reckon with their country’s dark past and the broken legal systems that allow such injustices to continue. In Arbery’s case, his killers claimed the protection of a citizen’s arrest statute that, if used as prosecutors originally envisioned, would be tantamount to allowing legalized lynching, and must be repealed.

As a reminder, here are some of the key details of the 25-year-old Arbery’s death.

On Feb. 23, Arbery made his way down an ashen stretch of the Satilla Shores neighborhood—a quiet suburb near downtown Brunswick, Georgia—during a routine afternoon run. On his route, he ran past a former Glynn County police officer and detective, Gregory McMichael, 64, and his son Travis, 34. The two men, who later claimed that they suspected that Arbery was involved in a recent string of break-ins in their neighborhood, proceeded to grab their guns, jump in their white pickup truck, and trail the former high school athlete for more than four minutes.

According to one officer’s interview with Gregory, which became the sole basis of the incident’s initial police report, the McMichaels attempted a “citizen’s arrest,” which led to a vicious tussle as Arbery “violently attacked” the father-and-son pair and “started fighting over the shotgun, at which point Travis fired a shot and then a second later there was a second shot.” On this basis, prosecutors declined to try the case and the McMichaels appeared to go scot free. Then, earlier this month, video of Arbery’s death was made public. As in other recent similar incidents, such as the deaths of Eric Garner and Stephon Clark at the hands of police, the footage subverted the killers’ claims in graphic detail.

That footage shows Arbery running around the perimeter of the McMichaels’ vehicle, then grappling with Travis as his father, Gregory, stands in the truck bed with a handgun. Then, Travis is seen firing off three shotgun shells—two of which strike Arbery in the chest.* Just two days after the video emerged, and thousands flooded social media with demands for the McMichaels’ arrest, the two men were charged with murder and aggravated assault. It took nearly two full months, though, for Arbery’s killers to face arrest after they cited the “citizen’s arrest” statute.

In addition to the initial resistance of the district attorney to hear the pleas of Arbery’s family, the case involved a revolving door of prosecutors—two of whom had previous ties with the McMichaels that led to consecutive recusals—as well as conflicting accounts about the potential involvement in the McMichaels’ pursuit of the man who filmed the video.

Such concerns have led activists across the state, like Georgia NAACP President James Woodall, to call for an investigation of the initial inquiry. Woodall told me that the local NAACP has also called for the immediate resignation of Brunswick district attorney Jackie Johnson for not issuing an arrest warrant following Arbery’s death, a revision to the state’s use of force statute (the training for which Gregory was penalized for skipping when he was previously on the job), and a complete repeal of the citizen’s arrest statute in Georgia. As the local NAACP has sought justice for Arbery, it has taken particular aim at fighting citizen’s arrest. As Woodall described it, the law has a deep history going back to the era of slavery and was “originally used to help white slave owners to catch and return enslaved people attempting to escape North.”

It’s no accident that such a law was used to try to justify Arbery’s killing. “We have two decades of research to show that state laws which protect individuals for aggressively protecting their property, like the citizen’s arrest laws, are often used as cover for an increase in racially-biased violence,” New School professor Maya Wiley told me. Wiley, who served as the chair of the New York Civilian Complaint Review Board following Garner’s death, pointed out that white people are also less safe as a result of laws that encourage vigilantism, which have proved to increase homicide rates and emergency room visits across racial groups. The rendering of Arbery’s death as a lynching—as described by a range of local and national leaders from the mayor of Atlanta to Democratic presidential hopeful Joe Biden—makes sense, Wiley notes, because the killing follows a familiar formula that includes the presumption of guilt placed on an innocent black victim by the killers.

That presumption of guilt, which was given official credence thanks to the citizen’s arrest statute, extended to the views of local authorities as well. In a letter to the police, George E. Barnhill—the second prosecutor on Arbery’s case who has since recused himself because his son had previously worked with Gregory McMichael—cited Arbery’s engagement with law enforcement as a teenager to “help explain his apparent aggressive nature and his possible thought pattern to attack an armed man.”

The depiction of blameless black men like Arbery as aggressors and criminals isn’t just reinforced in popular culture; it’s demonstrated in research, including a recent series of studies by the American Psychological Association, which showed that people have a “tendency to perceive black men as larger and more threatening than similarly sized white men.” And for black men and boys, such damning racial casting begins at a terrifyingly early age. (One need only look at the death of 12-year-old Tamir Rice to see this fact.) A separate study from the APA found that black boys as young as 10 years old were “more likely to be mistaken as older, be perceived as guilty and face police violence if accused of a crime.”

This presumption of guilt—with its continued use to justify laws like Georgia’s citizen’s arrest statute—is the same that contributed to countless lynchings throughout American history. Today, that inescapable comparison is why Arbery’s death has left black people afraid to jog, or why Jordan Davis’ death has made us afraid to play music loudly, or why Stephon Clark’s death has made us afraid to carry cellphones, and more recently, why the death of Breonna Taylor, who was shot eight times in March as Louisville, Kentucky, police raided the wrong home in the middle of the night, has even made us afraid to go to bed at night.

As long as black lives are threatened by such violence, there is no way for laws like Georgia’s citizen’s arrest statute to remain on the books without being used to justify that violence. If we learn anything from Arbery’s killing, it’s that repealing such laws is the best possible way to prevent deaths like his in the future—and better protect people from the dangers of living while black in America.

Correction, May 21, 2020: This post originally misidentified Ahmaud Arbery’s shooter as Gregory McMichaels rather than Travis.