The cases follow a pattern: First, the accused say, they tried to make a “citizen’s arrest.” Then they fired in self-defense.
A woman in Georgia faces murder charges after authorities said she followed a hit-and-run suspect, ordered him out of a truck and fatally shot him. A believer in the extremist ideology of QAnon set out to arrest a member of the “Deep State” and then killed him, spooked by a “furtive” hand gesture, a defense attorney said.
Now, three white men on trial for the death of Ahmaud Arbery are accused of racial profiling in what they call a citizen’s arrest gone wrong.
“We are in a period of vigilante justice. … And frankly, when you have vigilante justice, what it ends up being is vigilante injustice,” said Ira Robbins, an American University law professor, who has argued that laws allowing private citizens to detain each other — present in every state in some form — have been long overlooked and ripe for abuse.
Georgia overhauled its citizen’s arrest statute after leaked video of 25-year-old Arbery’s death triggered comparisons to a lynching. The law had been enacted during the Civil War and was criticized for helping to legitimize decades of racist vigilante violence.
But no other state has scrapped its citizen’s arrest law since then, and a simultaneous push in Georgia to remove “stand-your-ground” — which allows people to fight an aggressor even if they can safely back away — fizzled, just like other campaigns that have played out around the country.
The lack of action underscores the challenges in turning national outrage over high-profile killings into legislative change. Advocates blame partisan divides on an issue that supporters often tie to Second Amendment rights.
“With Joe Biden in the White House, gun-grabbers here in Georgia are working overtime to attack our gun rights at the state level, too,” warns a webpage gathering contact info and donations for the group Georgia Gun Owners. It claims that a repeal of stand-your-ground would empower criminals and “Antifa thugs.”
Criticized as a relic of times when fewer people could rely on rapid police response, citizen’s arrest dates to medieval England but was codified in Georgia in 1863. Stand-your-ground laws have proliferated to most states since 2005, when Florida passed legislation explicitly expanding “no duty to retreat.” Traditionally, people had legal blessing to ignore the possibility of retreat only in narrow settings, such as their home.
“These are shoot-first policies that bring with them all the bias, all of the fear of the shooter,” said Nick Suplina, managing director for law and policy at the nonprofit Everytown for Gun Safety.
In Arbery’s case, the accused argue they were within their rights to drive after a man they suspected of break-ins. Georgia’s citizen’s arrest law at the time called for either “immediate knowledge” of a crime or “reasonable and probable grounds of suspicion” of someone fleeing a felony offense.
Surveillance footage showed Arbery entering an under-construction house shortly before the shooting on Feb. 23, 2020, and a few times previously. But authorities found no stolen items on his body, and a lawyer for the property owner suggested Arbery may have been drinking from a water source.
Arbery’s supporters have said he was a frequent jogger; the defense argues that Arbery was committing burglary and “canvassing” for valuables.
Greg McMichael, his son Travis McMichael and their neighbor William “Roddie” Bryan have pleaded not guilty to charges including murder, aggravated assault and false imprisonment, as well as federal hate crime charges for which they will be tried next year.
Arbery’s case led Georgia lawmakers to significantly narrow who can perform a citizen’s arrest, focusing on business owners and security officers. Democratic state Rep. Josh McLaurin argues that Georgia’s growing diversity helped push Republicans overwhelmingly toward reform: “The pressures created by these stories are forcing them to be responsive,” he said.
“We knew that action was needed to ensure an antiquated, Civil-War era statute could not be used to justify rogue vigilantism in the Peach State,” Republican Georgia Gov. Brian Kemp said this May.
Arbery’s death brought attention to another case of alleged vigilante abuse in Georgia: the still-pending murder charges against Hannah Payne, accused of chasing and killing a Black man, Kenneth Herring, in 2019.
Authorities said Payne ignored instructions from 911 dispatchers not to chase Herring after he left the scene of a hit-and-run, in which Payne was a witness. A detective testified that Payne eventually blocked Herring’s car, ordered him out with a swear word and then threatened, “I’m going to shoot you,” according to local news station 11Alive.
Payne’s lawyer, Matt Tucker, says his client was performing a citizen’s arrest and then was forced to protect herself. He blamed authorities for encouraging Payne to help them — for instance, by asking her to get the departing vehicle’s tag number — and said that Payne only pulled out a gun after Herring drove toward her, hitting her car. Tucker also argues it was Herring who discharged the weapon during a struggle.
Stand-your-ground policies, which have been championed by the National Rifle Association, drew national criticism in 2012 when George Zimmerman, a Hispanic neighborhood watch captain in Florida, followed and killed Trayvon Martin. Denounced by some as a vigilante who racially profiled an unarmed Black teen in a hoodie, Zimmerman was acquitted after arguing that he shot in self-defense when Martin attacked him.
Georgia law says that someone who is not the “aggressor” need not try to back away before using potentially deadly force if they “reasonably believe” that force is necessary to prevent death, injury or a forcible felony. Georgia judges have long taken that position in the state, said University of Georgia law professor Ronald Carlson, but lawmakers codified it in 2006 as more states followed suit.
Attorneys for Travis McMichael argue that their client shot Arbery in self-defense after Arbery ran toward him and struggled for control of McMichael’s shotgun — and that McMichael was justified because he feared for his life and also had no obligation to back away.
Prosecutors, on the other hand, say Arbery was the one with a right to self-defense, and some argue that stand-your-ground laws can protect people like Arbery by empowering them to confront someone threatening them.
“I believe Mr. Arbery was being pursued, and he ran until he couldn’t run anymore,” a state investigator testified last year. “And it was: turn his back to a man with a shotgun, or fight with his bare hands against a man with a shotgun, and he chose to fight.”
A recent analysis of more than two dozen studies suggests that stand-your-ground laws do not appear to decrease violent crime, as some advocates claim, and may in fact increase it. Researchers found that firearm killings in Florida jumped significantly — as much as 45% among adolescents — after stand-your-ground took effect, stoking fears the policy was emboldening people and escalating fights. Opponents of the policy emphasize that states without stand-your-ground still protect a right to self-defense.
“Despite all the research to show that this is a terrible idea, we haven’t seen it influence policy much. And I think that kind of reinforces that these are special-interest groups that are pushing a ball,” said Greg Jackson, executive director of the nonprofit Community Justice Action Fund, which stepped up its work on stand-your-ground after Arbery’s case.
“It’s an uphill battle,” echoed LaTayla Billingslea, a 17-year-old in Georgia who joined the anti-gun violence group Students Demand Action after her cousin, Jasmine McAfee, was fatally shot in 2016. The defendant, Charles Aikens, was acquitted of murder and other charges after mounting a stand-your-ground defense.
Proponents of stand-your-ground argue that people should have the same self-defense rights no matter where they are.
“It gives me the ability to make a decision I think is best immediately, rather than put some legal standard in front of me that I have to make when I’m in fear for my life,” said Rob Sexton, legislative affairs director for the Buckeye Firearms Association, which lobbied for a stand-your-ground expansion enacted this spring in Ohio. Arkansas approved a similar law in March.
Republican lawmakers have been under immense pressure from gun groups, said Michael Weinman, director of governmental affairs for the Fraternal Order of Police in Ohio, which vigorously opposed the new law and called it dangerous.
He said he worries about stand-your-ground even more as legislators move ahead with another bill that would allow most citizens to carry concealed firearms without training or a background check.
Activists’ quest to change citizen’s arrest laws seem to many like an easier fight than stand-your-ground. “There’s no lobby for the citizen’s arrest law,” said Suplina from Everytown. “Or not much.”
Yet bills to reform citizen’s arrest statutes beyond Georgia have not come to fruition. With Arbery’s case back in the news, The Post and Courier editorial board lamented last week that attempts to modify South Carolina’s law — “which makes the old Georgia law look like a model of restraint” — never made it out of committee.
South Carolina allows citizen’s arrests “in the nighttime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken.”
Legislators there got further on an effort to join Georgia as one of the last states to pass a hate crimes law in the wake of Arbery’s killing. But that faltered this year, too.
South Carolina House Minority Leader Todd Rutherford, a criminal defense lawyer and former prosecutor, shares concerns about the citizen’s arrest law but said it simply has not been a priority.
“The headlines change, and interest changes,” said Rutherford, a Democrat, “and things just don’t get brought up.”