Arbery case exemplifies abuse of 'stand your ground,' but the damage is broad and systemic

"The only advantage for the McMichaels is they are alive to tell their version of the story."
Image: A white and orange cross with an "A" on it stands stuck in the ground along highway 17 at the entrance of the Satilla Shores neighbourhood where Ahmaud Arbery, an unarmed young black man, was shot after being chased by a white former law enforcemen
A cross with an "A" on it at the entrance of the Satilla Shores neighborhood where Ahmaud Arbery, an unarmed young black man, was shot after being chased by a white former law enforcement officer and his son, in Brunswick, Ga., on May 8. Dustin Chambers / Reuters file

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By Janell Ross

Brunswick is one of those southern Georgia towns with two faces.

It's a majority black, coastal city of about 16,000, about 1.5 hours south of Savannah where true stories about the negotiated start of integration are, for some, a point of pride. But it's also a place where the Ku Klux Klan bragged just last year on local radio about its efforts to infiltrate law enforcement.

So, a few weeks after Ahmaud Arbery, 25, a black man, was shot and killed Feb. 23 by two armed white men in an overwhelmingly white, riverfront Brunswick neighborhood, rumors with very different points of emphasis were rampant. But, when about 50 of Brunswick's leaders — businessmen and clergy, nonprofit officers and elected officials, some black and some white — gathered in its wake, the law and just how it should be interpreted dominated the conversation. The law of self-defense occupied the first 40 to 45 minutes of the conversation, said the Rev. John Perry, one of the men at that meeting and the president of the Brunswick NAACP.

"I felt as if we were kind of stuck talking about the law," he said. "The letter of the law. And that was not sitting right with me."

Gregory McMichael, left, and his son Travis McMichael.Glynn County Detention Center via AP

Self-defense — one of the legal options open to the men charged with murder in connection with Arbery's killing — can feel like a common-sense standard, discernible by Americans who believe they know the law and how it functions. But, the Arbery case and the way it has been handled, experts say, is an example of the way that concepts such as danger and fear, even who is the aggressor and who has a right to self-defense, are often manipulated or blurred in real life by race. In fact, what happened on that Brunswick street was not totally unheard of, but part of a documented 21st century pattern.

"One of the many tragedies here is that we've known for sometime, something like this was possible, even probable,” said Robert Patillo, a lawyer and the executive director of the Rainbow PUSH Coalition's Peachtree Street Project in Georgia.

In 2013, Patillo led a group that unsuccessfully tried to alter or eliminate Georgia's "stand your ground" policy in court after the 2012 death of Trayvon Martin in neighboring Florida. The policies vary from state to state but, where they exist, tend to expand the zone in which people have no duty to retreat from threats or danger to include areas outside their homes. And, in the moments after the Arbery shooting, Gregory McMichael, 64, and his son Travis, 34, who chased him, gave statements to police in line with the reasoning of the state's "stand your ground" law.

"Let's say Arbery was a 19-year-old cheerleader named Lily White, running down the street," Patillo said. "Two or three black men hopped in a pickup truck and the chase ended when they shot Lilly White down on tape. I ask you, who among us believes seriously we would be having a conversation, any kind of debate, about whether they should be charged, will be tried or convicted?"

The U.S. Department of Justice confirmed that it has opened an inquiry into Arbery's death and how the case was handled. Lawyers working for the Arbery family said the inquiry will explore possible criminal and civil violations, including civil rights violations.

On May 7, more than 10 weeks after Arbery's death, the Georgia Bureau of Investigation arrested the McMichaels, charging both men with murder and aggravated assault. And last week, the same agency arrested a third man, William "Roddie" Bryan, 50, charging him with felony murder and criminal attempt to commit false imprisonment in connection with Arbery's killing. Bryan, who has denied any wrongdoing, taped portions of the chase and the fatal confrontation and made those images public.

But on the day of the shooting, Glynn County police sent all three men home.

A huge disparity

When white Americans who live in a "stand your ground" state make self-defense claims in situations involving a black person's death, 36 percent are ruled justifiable homicides, Robert Spitzer, a professor of political science at the State University of New York, Cortland, said. When the situation is reversed and black Americans make self-defense claims in cases involving dead white people in these same states, just 3 percent see those deaths ruled justifiable homicides. That's the pattern in more than a decade of data.

"That's the reality," said Spitzer, whose research focuses on gun policy and politics and who wrote the book "Guns Across America: Reconciling Gun Rules and Rights." "It's not just how it looks.

It doesn't look good, and like the situation in Georgia, it certainly doesn't smell right. But that's what the data actually say."

The huge disparity in outcomes indicates a high correlation between race and the ability to make successful self-defense claims, he said.

A U.S. Commission on Civil Rights analysis released in April, eight years and one administration after it began, reached a different conclusion about racial disparities in who is able to make penalty-free "stand your ground" claims. The study amounted to such an outlier that several commissioners attached lengthy statements pointing out just how different the commission's findings were from multiple, peer reviewed studies on the subject.

In other words, the Trump administration's Civil Rights Commission reached a set of conclusions about self-defense cases involving "stand your ground" claims that just about every other researcher in the field has not.

The victim becomes the defendant

In late March, the Brunswick NAACP's Perry also joined a small group that met with police and Glynn County's prosecutor, Jackie Johnson. Johnson was the first prosecutor assigned the case who, by the time of the meeting, had recused herself because Gregory McMichael had worked in her office as an investigator. (A senior prosecutor in the Cobb County District Attorney's Office, which is now handling the case, also worked with Gregory McMichael on a different case in 2016).

In that meeting, Perry and others were told what interim police chief Jay Wiggins found when he took over the department in late February, days after the Arbery shooting. Wiggins' predecessor was arrested and is now under investigation in connection with a different matter. (State officials also stripped the department of its certification. And the Georgia attorney general is investigating both Glynn County's prosecutor and a second regional prosecutor who recused themselves from the Arbery case after declining to bring charges.)

Wiggins told them the case had not been properly handled, Perry said. For starters, the day of the shooting, police told Arbery's mother in no uncertain terms that her son had been killed while committing a break-in.

"That's insensitive but not a surprise," said John Roman, a senior fellow in the Economics, Justice and Society Group at the University of Chicago's NORC research center. Roman studies criminal justice and was also part of a seven-person American Bar Association commission which analyzed the real-world effects of "stand your ground" laws.

There are only two categories of justifiable homicide. One is deaths caused by law enforcement. The other is deaths caused by private citizens.

"But in order for the death to be deemed justifiable, the dead person has to have been in the process of committing a felony crime," Roman said. "So, when police at that scene or whoever made the decision not to make arrests and ruled this case a justifiable shooting back in February, they essentially made the victim the defendant."

A video made public by Gregory McMichael appears to show Arbery was shot and killed while running down a street after the father and son chased him in a truck, Bryan attempted to block his passage and Travis McMichael physically confronted Arbery. Arbery's family says he was out for a jog. The McMichaels say they suspected Arbery of a break-in and he attacked Travis McMichael when confronted.

Christopher Bruce, a political director at the American Civil Liberties Union of Georgia in Atlanta, has been gripped by an unnerving sensation when he drives 4.5 hours southeast to work on the issues in Glynn County. It feels that he's also traveling "back in time" when lynching was sometimes enabled by local police, he said. He's heard the same from people in Brunswick.

"Imagine hearing someone you knew went jogging and wound up dead and the two men who did it went home," Bruce said. "Imagine how terrifying that would be if you were a black person in Glynn County? In 2020, not 1920, law enforcement put people in this community through a lot, a lot of terror, a lot of pain before the GBI [Georgia Bureau of Investigation] arrested those men and something that looks and sounds like recognizable law began to apply."

The ACLU of Georgia plans to lobby Georgia lawmakers to change the state's "citizen's arrest" and self-defense use of force policies, to remove from office Glynn County’s prosecutor and one other involved in the case, and to create a civilian police complaints review board in Glynn County. Patillo is part of a group contemplating a new "stand your ground" challenge.

Two private citizens, loaded up

Georgia's "stand your ground" law passed in 2006 amid a wave of similar policies advanced by the National Rifle Association, the business lobbying group American Legislative Exchange Council, better known as ALEC, and conservative lawmakers who were members of one or both groups. Today, "stand your ground" laws exist in some form in 34 states. They eliminate the duty for individuals to attempt to retreat when faced with harm outside their home. A person cannot create a conflict or altercation, then make a clear self-defense claim. That's not the way the law is supposed to work.

Proponents insisted the laws would deter and reduce crime and eliminate the risk that those who rightfully defended themselves or others would face criminal penalties. But, in the years leading up to the surge of "stand your ground" policies, major crime was already in deep decline, Roman said. And there had been no rash of people prosecuted for defending themselves or others in an attack.

To Spitzer, the gun policy expert, the NRA's support for "stand your ground" has tapped into vigilante, cowboy fantasies in the general public which have pushed the portion of the population who own guns to buy more of them. And according to Patillo, the Georgia lawyer and civil rights activist, what "stand your ground" has done is make unclear for private citizens and investigators what constitutes a crime.

"It leaves the determination of who is the aggressor and who is the victim up to the subjective assessments of police and prosecutors listening to the story of the person left standing," Patillo said. "The problem with that is bias — implicit and overt — exists at every stage of the criminal justice system leaving open the real likelihood 'stand your ground' will be applied very differently to different people without so much as the benefit of a hearing in a court of law."

No state has moved to eliminate "stand your ground" since that 2006 policy wave. Instead, multiple studies have found that where such policies exist, homicides ruled justifiable growth, Roman said.

Roman's research and that of others have also found that the number of homicides deemed justifiable has climbed an average of 500 each year since the spread of such laws. And, decisions about whether a homicide was justifiable or an unlawful killing are increasingly being made by police and sometimes prosecutors at crime scenes or shortly thereafter. Cases never reach courtrooms with objective fact-finding procedures, he said.

"Based on what we can all see in that video, the only person with a legitimate self-defense claim in the situation was Ahmaud Arbery," Roman said. "The only advantage for the McMichaels is they are alive to tell their version of the story."

Or, as Patillo put it, "dead men tell no tales." What disrupted the pattern was the video of Arbery's death.

A different kind of justice

"What we have in Brunswick, is a situation where two private citizen individuals, loaded up, armed, in a truck and instigated a fight on film," Patillo said.

The McMichaels remain in jail and have not yet had a court appearance at which they could enter a formal plea. Calls to their lawyers were not returned. But, their lawyers have said publicly that the case is more complex than it may seem and their clients did not commit a racist murder. A lawyer representing Bryan said his client is an innocent witness and did not coordinate or communicate with the McMichaels the day of the shooting, the Atlanta Journal-Constitution reported late Thursday.

Perry, the Brunswick area preacher and NAACP leader, said widespread denial about the racial realities of self-defense claims is part of what compelled him to stand in that meeting of Brunswick community leaders and speak.

"Right now, every single person in our community needs to be reassured that we as leaders were not comfortable with what looked like a black man's execution in the street, few questions asked," Perry, who is the pastor of the Mt. Sinai Missionary Baptist Church, said. He asked the room a question. "Were we comfortable with that? In my opinion, the law only has value if it actually applies to us all."