A graphic video was released this week showing a black man, Ahmaud Arbery, being killed on a street in Georgia with a shotgun held by a white man, Travis McMichael.
Dating from February, the violent footage has stoked both sorrow and fury across the US – not least because, some three months later, neither of the white men shown has been arrested.
Mr McMichael and his father, Gregory, had pursued Arbery as he jogged down the street, supposedly because they thought him to be responsible for a series of burglaries in the area.
Bringing two guns with them, they stopped to try and talk to him, after which the altercation shown in the video began.
The shotgun was fired, and Arbery died of his wounds at the scene.
An attorney for Arbery’s mother gave a blunt assessment of what happened: “These men were vigilantes, they were a posse and they performed a modern lynching in the middle of the day.”
To add to its grim resonance, Arbery’s death came just three days before the anniversary of the killing of 17-year-old Trayvon Martin in Florida in 2012 by George Zimmerman, who first approached Martin in the street (against police instructions) and then shot him dead during the altercation that followed.
The release of the video has vaulted Arbery’s killing to national attention, and a district attorney in Georgia has now recommended a grand jury be convened to consider criminal charges. That, in turn, raises the question of what defense the McMichaels might use.
According to a police report describing the immediate aftermath of their altercation, Gregory McMichael told an officer he and his son decided to chase Arbery because they suspected him of being behind a series of break-ins.
The report says Mr McMichael “went to his bedroom and grabbed his .357 Magnum and Travis grabbed his shotgun because they ‘didn’ t know if the male was armed or not’. Michael stated ‘the other night’ they saw the same male and he stuck his hand down his pants which lead [sic] them to believe the male was armed.”
The elder Mr McMichael went on to describe what happened next: “McMichael stated the unidentified male began to violently attack Travis and the two men then started fighting over the shotgun at which point Travis fired a shot and then a second later there was a second shot.
“Michael stated the male fell face down on the pavement with his hand under his body.”
Should the McMichaels have to defend their actions in court, they may end up relying on what are known as “stand your ground” laws – essentially a claim to self-defense.
As in many other states, Georgia’s stand-your-ground law holds that killing another person or is justified provided the killer “reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.”
That means the McMichaels could, in theory, argue that the struggle with Arbery made Travis fearful for his life, thereby justifying his pulling the trigger.
In a letter seen by the New York Times, prosecutor George E Barnhill – who has recused himself from the case over a perceived conflict – argued the McMichaels were justified in chasing after Arbery under Georgia’s citizen arrest law, and that the self-defense law applies because of Arbery’s behavior.
“The angle of the shots and the video show this was from the beginning or almost immediately became – a fight over the shotgun. Given the fact Arbery initiated the fight, at the point Arbery grabbed the shotgun, under Georgia Law, McMichael was allowed to use deadly force to protect himself.”
To back up this conclusion, Mr Barnhill specifically cites the Georgia Code, which says “once confronted with a deadly force situation an individual is allowed to use deadly force to defend themselves or others”, and that “the use of force which is intended or likely to cause death or great bodily harm … is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony”.
Crucially, it also says: “A person properly and legally defending themselves is immune from prosecution”. On this basis, Mr Barnhill wrote that there is no probable cause to arrest those involved in Ahmad’s death.
Another lawyer commenting to the Times disagreed, saying since the McMichaels appeared to be the aggressors in the altercation, any argument of self-defense is not justified.
These disagreements could be a preview of what is to come.
The McMichaels have still not been arrested, much less charged – but if these laws are put to the test in a trial over Arbery’s death, the furious fight over who can use lethal force to defend themselves, and in what circumstances, could be reignited all over again.
Source: The IndependentMay 7, 2020