How Lawyers in the Arbery Murder Trial Will Try to Cite Citizen’s Arrest Law

A lawyer for Travis McMichael is the first on the defense side to to argue that when Ahmaud Arbery was killed, his client was trying to make a citizen’s arrest permitted under state law.,

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The defense cites a citizen’s arrest law that has been largely repealed.

Two defense attorneys, Robert Rubin and Franklin Hogue, during jury selection in the murder trial of Gregory McMichael, Travis McMichael and William Bryan.
Two defense attorneys, Robert Rubin and Franklin Hogue, during jury selection in the murder trial of Gregory McMichael, Travis McMichael and William Bryan.Credit…Octavio Jones/Reuters
  • Nov. 5, 2021Updated 2:27 p.m. ET

Robert Rubin, a lawyer for Travis McMichael, became the first defense lawyer for any of the three men accused of murdering Ahmaud Arbery to argue that his client was trying to make a citizen’s arrest permitted under state law.

Mr. Rubin cited the law in his opening statement in the murder trial of Mr. McMichael; his father, Gregory McMichael; and their neighbor, William Bryan.

The law in question had existed in Georgia since 1863 and was partly repealed after Mr. Arbery was killed. It allowed residents to arrest each other if they had reasonable suspicion that someone had committed a felony and the police were not present.

All of the defense teams for the three defendants are expected to invoke the law. The defendants have said they thought Mr. Arbery was guilty of burglaries in the area when they chased him. No evidence has been produced to show that to be true.

The jury will have to consider if the men reasonably suspected that Mr. Arbery had committed a felony.

These kinds of laws exist in many states, but they are not uniform. Similar to “stand your ground” and “castle doctrine” laws that allow people to use force to protect themselves or their homes, citizen’s arrest laws have come to national attention over the years. Critics argue that they enable people to act out of pre-existing biases and help foment environments where extrajudicial killings happen.

“This is based on racism,” said Ira P. Robbins, a law professor at American University who wrote an academic paper on the issue. “You look at the Georgia law, for example. This is a law that was used for white people to help catch escaping slaves. There is a close connection between citizen’s arrest laws in the South and lynchings.”

Among the criticisms of these kinds of laws is the belief that ordinary citizens are not well-versed in the complexities of the law when they take things into their own hands. “It’s scary because it allows for vigilante injustice,” Mr. Robbins said.

Georgia lawmakers partly dismantled the citizen’s arrest law last spring in response to Mr. Arbery’s killing, repealing the portion of the law that allowed a private person to arrest someone if that person witnessed — or was told about — a crime, or if someone suspected of committing a felony was trying to escape. The legislation carved out some exceptions for business owners, who can detain people on “reasonable grounds” if they are suspected of shoplifting or other thefts. Other exceptions apply to licensed private detectives and security guards.

Gov. Brian Kemp, a Republican, called the former statute “an antiquated law that is ripe for abuse.”

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