Georgia’s citizen’s arrest law — passed in 1863, the same year Lincoln signed the Emancipation Proclamation — might meet its demise in the General Assembly’s next session.
“It’s a hot button bill right now,” said Rep. Carl Gilliard, D-Garden City, the lead sponsor of a measure that would repeal the law.
Committee hearings continue for the bill, which has bipartisan support, and Gilliard intends for it to be one of the first bills pre-filed for the next session.
The citizen’s arrest law has been cited as a defense by three white men who chased down a Black jogger outside Brunswick, Ga., last February, a confrontation that ended with Ahmaud Arbery’s death.
George Barnhill, a prosecutor who handled the Arbery case, told Brunswick police the day after Arbery was gunned down that the men should not be charged because they did nothing wrong as they were making a citizen’s arrest.
The 25-year-old’s death might have been swept under the rug if his mother, Wander Cooper-Jones, a former Burke County resident, hadn’t continued to press authorities about the shooting.
After a third prosecutor was assigned to the case and the Georgia Bureau of Investigation was brought in, Travis McMichael; his father, Gregory McMichael; and William Bryan Jr. were charged with murder. Bryan told investigators that after Travis McMichael shot Arbery twice with a shotgun, he cursed the dying man and called him a racial slur.
“If a group of Black men in a pickup truck chased down a 16-year-old white kid in West Lake, there would be riots,” said Pete Theodocion, a veteran criminal defense attorney in the Augusta area.
The citizen’s arrest law was passed in 1863 to give white men in Georgia the ability to arrest runaway slaves, and “there really is no place for it now,” Theodocion said.
“It’s an antiquated law, that’s the first thing,” said Keith Johnson, another attorney whose practice includes criminal defense law. The law was passed long before 911 became the way for residents to call for help.
It’s a bad law because it can be so easily misinterpreted and abused, Johnson said.
“It’s a horrible statute. You’re asking for trouble,” he said.
There’s a reason law enforcement officers undergo training and certification, Theodocion and Johnson said.
The McMichaels said they suspected Arbery had been stealing in their neighborhood, although no thefts had been reported to the police in the weeks prior to the killing. Later, it was learned a Black man had entered a construction site in the neighborhood. On Feb. 23, the McMichaels saw Arbery running down the road and grabbed guns and chased after him. Bryan joined the chase, at one point allegedly striking Arbery with his truck.
The citizen’s arrest law refers to someone seen committing a felony. But at most, if Arbery had gone onto the construction site, it was trespassing, a misdemeanor, Johnson said.
If a resident sees or suspects someone has committed a crime, he should call 911 or at most follow from a distance, District Attorney Natalie Paine said. Grabbing a gun and chasing someone down is asking for trouble, she said.
“I can’t see any positives,” she said.
There’s a reason police are trained and certified, given civil protection from lawsuits and use bodycams, Paine said.
“If someone’s running away from a dead body with a machete or gun in his hand, that’s something else,” Paine said, but added that there’s still no reason to play cop. “You get a tag number. You don’t hold someone at gunpoint.”
What happened to Arbery seems similar to what happened to 17-year-old Trayvon Martin when he was visiting his father in Sanford, Fla. The evening of Feb. 26, 2012, neighborhood watch captain George Zimmerman started following him, even after a 911 dispatcher told him to stop. He shot and killed Martin. Zimmerman was acquitted in 2013.
The big difference between Zimmerman and the men charged with murder in Arbery’s death is video, Johnson pointed out. Bryan’s attorney released the cellphone video Bryan recorded in the moments before Arbery was killed.
Zimmerman claimed Martin attacked him and that he shot in self-defense. Arbery was obviously just trying to get away from the armed McMichaels, Johnson said.
The answer is not just ending the citizen’s arrest law, said attorney Tayna Jeffords, whose practice includes criminal defense and civil right litigation.
“We need to change the perception of people,” she said.
Through history and media, people see Black people, especially Black men, as criminal, Jeffords said.
For society to change means getting to know people who are different, to learn everyone is the same inside, Jeffords said.
“It starts in the home,” she said.
She believes a good starting point in helping people better understand each other is through taking an implicit bias test, Jeffords said.
The bill to abolish the law is getting a lot of support, said Gilliard, whose brother was killed by someone taking the law into his own hands. It has the support of at least one representative from Brunswick. A letter is going out to all the mayors in Georgia asking for a proclamation supporting the bill, Gilliard said.
Sen. Harold Jones, D-Augusta, said he believes the Senate will be interested in the bill and that support, as with most legislation, depends on what the bill contains. He is concerned that store owners need to have the ability to hold shoplifters. The important language is hold, not arrest, Jones said.
Jones, who is a lawyer and former Richmond County State Court solicitor, said case law in Georgia says deadly force cannot be used during a citizen’s arrest. For the prosecutor initially assigned to Arbery’s case to claim that justification is a travesty, Jones said.
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