Image via Twitter
Image via Twitter

Anger over the case had been building for weeks, but the incident only exploded onto the national spotlight on Tuesday when a graphic video of the attack surfaced and quickly went viral.

Editor’s Note: Gregory and Travis McMichael, the Georgia father and son who killed Ahmaud Arbery, were arrested on Thursday and charged with murder and aggravated assault, according to a press release from the Georgia Bureau of Investigation.

A Georgia prosecutor said on Tuesday that he recommended that a grand jury review the February killing of Ahmaud Arbery, a 25-year-old unarmed Black man who was pursued by two white men and gunned down in southern Georgia. 

Arbery was killed while on a run in the Satilla Shores neighborhood, just outside of Brunswick, in Glynn County. The incident occurred on Feb. 23, at about 1 p.m., and neither of the two men who killed Arbery have been arrested or charged. 

Anger over the case had been building for weeks, and civil rights activists, including Rev. Al Sharpton and the Georgia NAACP, called for an investigation. The incident, however, only exploded onto the national spotlight on Tuesday when a graphic video of the attack surfaced and quickly went viral. The video drew waves of outrage and prompted prosecutor Tom Durden of Georgia’s Atlantic Judicial Circuit to recommend the case be presented to a grand jury. 

“After careful review of the evidence, I am of the opinion that the case should be presented to the grand jury of Glynn County for consideration of criminal charges,” Durden wrote in a statement.

According to a police report obtained by the New York Times, one of the alleged perpetrators, Gregory McMichael, said that he saw Arbery running through his neighborhood and thought that he looked like the suspect in a string of nearby break-ins. McMichael, 64, told the police that he and his son, Travis McMichael, 34, grabbed their guns and pursued Arbery in their truck. What happens next is all on video. 

Arbery can be seen running along a two-lane residential road when he comes upon a white truck blocking his path. Travis McMichael is standing outside the open driver’s-side door, while Gregory McMichael is in the truck bed. Arbery runs around the truck to try to pass it and disappears out of sight for a moment. Muffled shouting is heard, Arbery then re-emerges and a gunshot rings out. Arbery can then be seen struggling with Travis McMichel outside the truck, who shoots Arbery twice more, including a final shot at point blank range. Arbery staggers away, before collapsing to the ground.

Arbery’s family and friends have said that he was an avid jogger and they do not believe he committed a crime before being chased. 

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“This is murder,” said S. Lee Merritt, a lawyer for Arbery’s family. “Mr. Arbery had not committed any crime and there was no reason for these men to believe they had the right to stop him with weapons or use deadly force in furtherance of their unlawful attempted stop.”

Others, including activists, lawyers, and candidates for elected office have gone even further than Merritt, calling the killing a “modern-day lynching.”

According to the police report, Gregory McMichael told officers he and his son first tried to stop Arbery by shouting, “Stop, stop, we want to talk to you!” 

“(Gregory) 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,” the report states.

The police report says Gregory McMichael turned Arbery onto his back to see if he was armed, but the report doesn’t say whether he had a weapon or not. The police report and other documents obtained by The Times do not indicate that Arbery was armed. 

The McMichaels’ “vigilante behavior” was condemned by Andrea Young, executive director of the ACLU of Georgia, who said it was “unacceptable in a civilized society.” 

In response to Tuesday’s backlash, Durden has also asked the Georgia Bureau of Investigation to investigate the case, but the Southern Poverty Law Center, an Alabama-based civil rights group, has called for the U.S. Justice Department to step in. Merritt has made the same demand.

“The Department of Justice must take over this case and bring all parties involved, including the officials that ratified these men’s behavior, up on federal hate crime charges,” he said in a Tuesday tweet.

Merritt also called for the suspects to be taken into custody until the men can be indicted before a grand jury, which won’t happen until at least June 13, as Georgia courts remain mostly closed because of the coronavirus. Georgia NAACP state president Rev. James Woodall echoed Merritt’s call for the McMichaels to be arrested.

“We will not rest until the murderers of Ahmaud Arbery are behind bars,” Woodall said in a statement Tuesday. “The fact that the McMichaels have yet to be arrested in this matter is evidence enough for what we all know to be true—justice for all is just not specific enough.”

In his statement Tuesday, Durden admitted the coronavirus-related delay could trigger more public outcry over the case, but promised to present it to a grand jury as soon as he could. “I have no control over the suspensions due to the pandemic,” Durden said in the statement. “However, I do intend to present the case to the next available grand jury in Glynn County.”

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Durden is the third prosecutor to be assigned to the case after the first two recused themselves because of professional connections to Gregory McMichael, who had spent years working as an investigator in the Brunswick district attorney’s office. Prior to that, he also served as an officer in the Glynn County Police Department for seven years.

Jackie Johnson, the district attorney for the Brunswick Judicial Circuit, was initially assigned the case but excused herself because of her ties to Gregory McMichael. The second prosecutor, George E. Barnhill of the Waycross Judicial District, also recused himself from the case because his son worked in Brunswick district attorney’s office with Gregory McMichael. 

Before he was removed from the case however, Barnhill determined that there was insufficient probable cause to arrest Arbery’s pursuers, arguing that they had acted legally under the state’s citizen arrest and self-defense statutes, according to documents obtained by The New York Times.

In the letter addressed to the Glynn County Police Department, Barnhill wrote that the McMichaels were legally carrying their guns under Georgia’s open carry law—which allows any person to openly carry a handgun or shotgun if the person has a “weapons carry” license—and said they were within their rights to chase down what he described as a “burglary suspect.” Barnhill cited a state law that states: “A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.”

Barnhill also said that if Arbery attacked Travis McMichael, as the suspects claimed, McMichael was “allowed to use deadly force to protect himself” under Georgia law.

Georgia’s self-defense laws, also known as stand-your-ground laws, are considered some of the broadest in the country. These laws say that anyone who is being threatened by another person’s use of force has no duty to retreat or back down and can legally use force against their attacker. In many states, these laws are only applicable in certain areas, such as your home or vehicle, but Georgia’s law makes no distinction regarding location, so long as the person believes that force is necessary to defend themselves. 

“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force,” the law reads

But there are limitations. In order to use force, a person must believe “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.”

The McMichaels have claimed they were acting lawfully, but Michael J. Moore, an Atlanta lawyer who formerly served as a U.S. attorney in Georgia, told the New York Times that the McMichaels appeared to be the aggressors in the confrontation, and such aggressors were not justified in using force under Georgia’s self-defense laws. 

“The law does not allow a group of people to form an armed posse and chase down an unarmed person who they believe might have possibly been the perpetrator of a past crime,” Moore wrote to the Times in an email.

He also reviewed Barnhill’s letter, as well as the initial police report, at the request of The Times, and called Barnhill’s opinion “flawed.”

Stand your ground laws have been the subject of increasing controversy since the 2012 murder of 17-year-old Travyon Martin by George Zimmerman. Zimmerman claimed to be acting in self-defense under Florida’s stand your ground law and was later acquitted on all charges. 

The ACLU says stand your ground laws “encourage vigilante justice and exacerbate racial disparities in the criminal justice system,” and gun safety group Giffords says they “encourage the escalation of violence in everyday conflicts.” Studies have borne out the danger of these laws. In Florida, which was the first state to implement a stand your ground statute, the law was associated with a 32% increase in firearm homicide rates and a 24% increase in overall homicide rates, according to one report. Despite the furor surrounding these laws, 25 other states have since enacted such laws

Georgia’s citizen’s arrest law, which the suspects also invoked, is similarly controversial. The law states: “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.”

These laws, which originated in Europe centuries ago, are now viewed as dangerous relics that can lead to reckless cases of vigilante justice. Ira P. Robbins, a professor of law and justice at American University, issued a 45-page report on citizen’s arrest laws in 2016, ultimately calling for them to be abolished. 

“It is a doctrine whose time should have passed many decades—or centuries—ago,” Robbins wrote. “In the age of smartphones and other hi-tech devices, private citizens can easily gather photographic and video evidence of a crime without subjecting themselves or the suspect to the risks associated with a citizen’s arrest.

The collective danger of Georgia’s open carry, citizen’s arrest, and stand your ground laws was pointed out by activist Brittany Cunningham on Tuesday. 

“Among the sickest parts of the #AhmaudArbery murder is how much GA law allows things like this to go down,” Cunningham said in a tweet. “Open carry. Citizen’s arrest. Stand your ground laws. We are hard pressed to get a different *legal* outcome here. We must try, but we also got plenty of laws to change.”