Ahmaud Arbery and the Laws of God and Man

Stalking, assaulting, and killing Ahmaud Arbery was unjustified whether we look at Georgia state law or biblical standards. Justice for him will involve holding Gregory and Travis McMichael accountable for their deeds. What follows is a brief look at both the biblical standards and Georgia state law standards applicable to this case.

Since there is already so much information available about the case, I will not rehearse all the various points of view here. The basic facts are that a 25 year old Georgian black man, Ahmaud Arbery, was shot to death by two white men allegedly attempting to make a citizens arrest, which is legal under certain circumstances in Georgia. You can watch the video here, and subsequent evidence videos here and here. (You can also hear some brief 911 calls here. They will be important in establishing that the callers did not seem to witnesse Arbery doing anything actually illegal, let alone felonious.)

As depressing as the incident itself is, it is even more depressing to learn that the local prosecutors declined to press charges and were going to let the shooter’s narrative slide—that this was a legitimate case of citizens arrest in which the arrester had to defend himself from an attacking criminal. But then the video was released, two months later, and the viral outrage was so fierce that the Georgia Bureau Investigators intervened and arrested the two shooters on charges of aggravated assault and felony murder.

Some have tried to defend the shooter’s narrative, for whatever reasons, and others have suggested that the subsequent videos coming out provide “more facts” that were not previously taken into account and will weaken the GBI’s case. It is important to know that GBI had in fact reviewed all of the subsequent video already before it decided to press its charges.

Important Biblical Laws

The biblical standard is clear. People do have a right to self-defense and the defense of life for others being attacked. We also have a right to use up-to-deadly force for an intruder breaking into a home where his actions are a potential threat to life. We do not, however, have the right to use deadly force against even a clear thief if we can discern his actions and he is not a threat to life.

These principles are almost universally gleaned from the case laws of Exodus 22:

“If a thief is found breaking in and is struck so that he dies, there shall be no bloodguilt for him, but if the sun has risen on him, there shall be bloodguilt for him” (Ex. 22:2–3).

The latter phrase “if the sun has risen on him” is understood to mean that if his actions are clearly visible and he is not threatening your life. Under such circumstances, a private individual does not have a right to assault him or try to arrest him with deadly force. In this, the Bible is making clear that deadly force can only be used by a private individual to protect life, not to recover property even from a known thief. Even a thief’s right to life trumps the value of your property, which can after all be restored in other ways later.

State laws in most states are consistent with this principle. If someone breaks into your home at night, you have the right to use up to deadly force as necessary against them. If, however, you come down the stairs and catch them, for example, walking out the front door with your flatscreen TV, you cannot shoot them to prevent the loss of the property. Even threatening to do so could result in charges. (I am necessarily generalizing here. Check your own state’s laws for details applicable to you.)

When we look at the case of Ahmaud Arbery, we have nothing anywhere close to this standard in play. In his case, there was no breaking and entering at all, and there was no property taken. It cannot be said that he was thief, felony or misdemeanor. Under biblical law, trying to stop him at gunpoint is a criminal act of its own. His reaction in jumping to fight when confronted by a man with a shotgun, even if it could be said to be unwise, was nevertheless not an attack but a defensive reaction to an illegal aggravated assault and attempted false arrest. Even if Ahmaud Arbery had stolen something, there is no biblical law that allows a private citizen to pursue him and threaten him with arrest at gunpoint. But again, the case is even more egregious because he did not steal anything.

State Laws

These points lead us from the biblical standard to the Georgia state standards, which seem to be a little hairier. Even here, however, there is no justification for what happened. Several people, including the initial prosecutor who tried to clear the McMichaels (the shooter and son), have argued that the McMichaels were justified according to the Georgia citizen arrest law and because when confronted with such a lawful citizen arrest, Arbery attacked them first, triggering Gregory McMichael’s right to stand his ground in self-defense.

Neither of these laws apply here. Let’s look at them in reverse order. Were McMichael or Arbery the initial aggressor in the confrontation? In other words, which one was attacked and which one thus had the right to stand their ground? If—and this is a huge if—McMichael was in the right to initiate a citizen arrest, then he could legally open carry a long gun in Georgia while doing so. Even if Arbery did not know this, when he jumped to protect himself from McMichael and his gun, he was defying a legal citizen arrest and thus would be considered the aggressor. The result would then be as the early prosecutor tried to argue. But if McMichael was not lawfully initiating a citizen arrest, then he was actually threatening someone with a deadly weapon (which is aggravated assault, a felony), and the homicide resulting from that would be considered a felony murder (a lower but still very serious level of murder charge in Georgia).

So, everything in this case depends on whether the citizens arrest claim is valid.

The citizen arrest law for Georgia reads:

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

It is clear that the first sentence of this statute does not apply. The McMichaels did not see Ahmaud commit any crime in their presence, and the phrase “immediate knowledge” is understood by court precedent to be synonymous with that, so it does not apply either.

The second sentence could, remotely, possibly apply if they had probable grounds that Ahmaud was actually committing a felony. “Probable” is a higher standard than “reasonable” suspicion, and generally requires some kind of sensory experience: sight, smell, actual physical evidence, smoking gun, etc.

At least one video commentator has suggested that by entering the house that was under construction, Arbery was committing first degree burglary, which is in fact a felony. The snag here, which the commentator mentions but does not really explore, is that first degree burglary requires the proof of “intent to commit a felony or theft.” Without cognizance of this intent, Arbery seems to be guilty of only trespass as worst, which is not a felony.

The fine line here is whether the defense will be able to prove that McMichael had probable grounds of suspicion that Arbery intended to commit felony burglary. I have no doubt the defense will put as much effort into this aspect of the case as any, for it is the lynchpin for them. Unless they can show they had probable grounds for a felony on Arbery’s part, then the whole citizens arrest statute is inapplicable and chasing Arbery down with a gun defaults back to aggravated assault and the result a felony murder. It seems to me to be their only hope to defeat the charges in light of the evidence that is public.

I think the media and lawyers feeding the media are well aware of this point. It is why the media has been stressing that there were actually no prior reports of actual burglaries since January. It is why they stress the 911 operator asking what the alleged trespasser actually was doing wrong. Travis McMichael on that call answered that the person had been caught on camera “a bunch of times” prior, but did not say there had been any property missing before or this time. These facts taken together will make it tough to argue probably grounds that felony burglaries were taking place, especially by the same guy. This is, ironically, especially true if he had been caught on video entering the house multiple times before but no thefts from that property had been reported before. The established pattern of behavior would mean they could reasonably believe that no burglary was occurring this time either, as always.

So, while a lot of people are stressing the citizen arrest law and the self-defense standard, I do not think they apply here. I think the McMichaels were acting outside of the bounds of the citizen arrest statute, and in doing so committed a false citizens arrest. Brandishing a gun in this scenario is an aggravated assault, and thus a felony. The resulting death during this felony may have been unplanned and even unintentional, but because committed during a felony, it is felony murder.

I will say, however, that it is still very possible, depending on prejudices, reactions, predispositions, personal understandings, and biases, that a jury could find they did act with probable grounds of suspicion and thus initiated a legitimate citizen arrest. While I think the law is against that view, juries can do very weird and shocking things, especially on behalf of those associated with police and the state. In the South, especially, racial issues are always in play, too. (On this score, I recommend you watch The Trials of Daryl Hunt, among others.)

My conclusion is that neither biblical law nor Georgia law justifies what the McMichaels did. If Arbery was guilty of trespassing, which as common as it is on construction sites, he may have been, they should have at most called the police and let it be.

I pray for justice for what to , by all standards, looks like the murder of Ahmaud Arbery, and for rest and peace and justice for his survivors.