Tuesday marks the first anniversary of the death of Ahmaud Arbery, the 25-year-old jogger whose devastating last moments were captured on video by one of the accomplices in his killing. Travis and Greg McMichael—the two white men who pursued Arbery in their truck before shooting him in a Georgia suburb—are in custody awaiting trial for murder. The McMichaels claim they acted in self-defense while trying to make a citizen’s arrest. They insist—despite the video evidence and facts of the case—that Arbery was the aggressor in the confrontation that ended in his death.
Now their lawyers have made an extraordinary request. In preparation for what is likely to be a highly publicized trial, the McMichaels’ lawyers filed a motion in limine in December, asking to prevent the prosecution from referring to Arbery as the “victim” of this killing. According to the motion, such a “loaded word” would unfairly prejudice the jury against the defendants, undermining their right to due process by impugning their presumption of innocence. The motion argues that—by calling Ahmaud Arbery a victim—the prosecution would lead the jury to infer the guilt of the defendants, undermining their claim to have acted in self-defense, rather than with criminal intent. The McMichaels’ trial has been delayed by the COVID-19 pandemic, but once it moves forward, the judge will have to rule on their request. If granted, the motion would reinforce one of the most treacherous effects of the nation’s proliferating “stand your ground” laws: the retroactive role reversal of victim and perpetrator.
Filed before a trial by either defense or prosecution, a motion in limine—Latin for “at the threshold”—prevents the introduction of prejudicial statements or questions in the presence of the jury. In theory, in limine motions protect due process by excluding information that might sway the jury unfairly in the absence of supporting evidence. Grounded in efforts to promote fairness and to prevent bias against those accused of malfeasance, the motion in limine is vulnerable to abuse when its application is overly broad or when it’s used to inhibit the process of presenting facts to the jury. In a 1971 arson case, Iowa Justice Harvey Uhlenhopp cautioned against the “indiscriminate application of [the motion in limine] lest parties be prevented from even trying to prove their contentions.” For Uhlenhopp, in limine motions should be used sparingly and precisely, always accompanied by reasonable justification.
But the McMichaels’ lawyers are deploying an absurdly broad approach: If granted, their motion will not prevent prejudice but rather foment it—against Ahmaud Arbery, who died as a result of their clients’ lethal actions. In addition to trying to ban the prosecution’s use of the word victim, they have also demanded that only one photograph of Arbery from when he was alive be allowed in court, and that he be pictured alone rather than with friends and family. They request too that recordings of the McMichaels’ phone conversations and social media activity—which contain evidence of racial prejudice—not be allowed in the courtroom.
These motions are designed to conceal the fact that Arbery was the victim of this incident. Disallowing photographs with loved ones constitutes an attempt to undermine Arbery’s humanity while making him appear responsible for the encounter that resulted in his death. Given the defense’s appeal to the state’s “stand your ground” law—which allows citizens to defend themselves in public spaces without first trying to retreat—the in limine motion helps the defense depict Arbery as the perpetrator, instead of the victim, of a violent crime, while framing the McMichaels as law-abiding self-protectors.
Indeed, distorted conceptions of victimhood—of who gets to claim that their lethal actions were defensive rather than aggressive—are fundamental to the “stand your ground” laws’ vexing application and historical grounding. Since the first law’s passage in 2005, they have been shown to amplify existing legal biases, authorizing some forms of violence while criminalizing others. And although the laws are crafted to appear gender- and race-neutral, they generally empower certain armed civilians to assume the mantle of police authority in “defense” of public space. The laws’ hypocrisies abound. While conservative lawmakers promote them as vital to women’s self-defense from gender and sexual violence, those who invoke “stand your ground” after defending themselves against their largest statistical threat—their own male acquaintances and intimate partners—are often held criminally liable. Not only are the laws associated with increased homicide rates, they also exacerbate racial bias in the adjudication of homicides: A 2013 study by the Urban Institute found that, in “stand your ground” states, white homicides with Black decedents were more than three times more likely to be justified than those with white decedents. Anchored in our nation’s underacknowledged traditions of racial terror, “stand your ground” laws often immunize white killers from legal culpability when they claim they were “in fear for their life” after killing Black men or boys. The process of determining which homicides are considered justifiable, and which fears are thought of as “reasonable,” is inextricable from wider assumptions about Black criminality that frame Black men as “thugs” and perpetrators, even when they are the targets of racist violence.
Such was the case when Ahmaud Arbery went out for a run a year ago in broad daylight, only to be chased and killed by armed white men who claimed afterward that they were defending themselves and their neighborhood. Should the McMichaels’ lawyers succeed in banning the language of victimhood in their trial, it will establish a dangerous precedent in similar cases. Not only will we witness the continued use of lethal violence by armed white aggressors who claim the vindicating mantle of “self-defense,” but our process of adjudication will tilt even further in favor of their exoneration, the blame shifting further onto the shoulders of those they have killed. The state already carries the burden of proof in “stand your ground” cases—the prosecution must prove beyond a reasonable doubt that the McMichaels were not acting in self-defense when they pursued and killed Ahmaud Arbery—and these in limine motions will amplify the already tortured logic by which another victim of prejudicial violence must assume legal responsibility for his own demise.
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