After Action Analysis: Arbery Shoplifting Video: May 20, 2020

Hey folks,

Today’s show looks at another Ahmaud Arbery video, released in the last 24 hours or so, of Arbery apparently getting arrested in a parking lot for purportedly attempting to shoplift a 65″ TV. You got that right, sixty-five inches. Go big or go home, I guess.

The video itself isn’t all that interesting from a use-of-force perspective, and the same can largely be said about the prior day’s video of Arbery having a confrontational encounter with a pair of law enforcement officers in a park. (Interestingly, he’s wearing the same down jacket with fur-lined hood in both videos.)

The videos have, however, induced several people to ask whether such videos can be at all relevant to the trial(s) of Greg and Travis McMichael, both charged with felony murder predicted on aggravated assault (or, in the case of Greg, aiding and abetting aggravated assault) in this case. After all, it’s not Ahmaud Arbery who will be on trial in those cases, it will be the McMichaels.

There are, however, some exceptions to the general policy of excluding character evidence, and at least three of these exceptions may prove a viable path for the defense to get evidence of Arbery’s character.

One of those exceptions is a function of whether the state introduces character evidence of its own.

A second has to do with character evidence that was known to the McMichaels at the time of their encounter with Arbery.

A third has to do with whether the prosecution attacks the McMichael’s (anticipated) claim of self-defense on the element of Innocence.

We touch on all that in considerable plain-English detail, share the shoplifting video itself with you, and a whole lot more in this roughly one hour plain-English exposition on the law, so enjoy the show!

And remember: You can find ALL our Ahmaud Arbery coverage here (so bookmark it!): http://lawofselfdefense.com/arbery

TRANSCRIPT OF THE SHOW:

Welcome, everybody. Welcome to the Law of Self Defense After Action Analysis show. Come on in, come on in. And as always, you could please leave a comment with your city and state. That would be very helpful. And if you could also, of course, please hit that share Arrow at the top of the comments, click that thumbs like up. Help me to fool the Facebook algorithm into spreading this Facebook Live more broadly. That’s those instructions, of course, are only for those of you watching this show live. So come on in for our after action analysis show.

For those who may not be aware if it’s your first time here, I am attorney Andrew Branca. Thank you so much for that applause always greatly appreciated

And this is our After Action Analysis Show that we do every Tuesday at 2 p.m. Eastern time here as a Facebook Live. And then we have the replay available for our Law of Self Defense Members over at the http://lawofselfdefense.com/blog.

So for those of you who may be knew how we do our Facebook content folks is, we do Facebook Live shows several times a week, and for approximately one day we leave that show up on Facebook and replay form. But the next show we do becomes the current Facebook show, and we delete all the others. You’ll find new content multiple times a week, but only the most recent show.

The exception to that is when we’re covering a case of particular public interest, as we are in the last couple of weeks with the Ahmaud Arbery case, and we tend to leave those posts up for a broader period of time to facilitate people properly understanding how the law and the facts apply to those cases. So we have a lot of amount Arbery stuff up on my Facebook page right now for you to enjoy. I

If you’d like to see everything we’ve done on a Ahmaud Arbery, you could just point your browser to http://lawofselfdefense.com/arbery, and you’ll find everything we’ve written involving this case so far. And of course, this is the case of Amman Arbery being shot and killed in Georgia. It’s the black man shot for the crime of jogging, the case of the defendants being two white gentlemen, the McMichaels, who have been charged with felony murder predicated on aggravated assault and have been arrested, are being held without bail. The process is now in the pre-grand jury step of things. So the prosecutor has said they will present their case to the grand jury, at which point I expect they will get an indictment and things will proceed to trial.

Well, today’s every After Action Analysis Show is a bit different. Usually what we do is we take a use of force event caught on video, and we do a plain English legal analysis of that use of force event using our five elements of self defense framework.

For those of you who may not know self defense law consists of up to five elements. The good news is there’s only five. There’s not 50. There’s not 500. There’s only five. I’ll post those up here. We don’t try to keep this information secret. There it is those air, the five elements of self defense, innocence, imminence, proportionality, avoidance and reasonableness.

And folks, if you don’t understand these, if they’re unfamiliar to you, I do encourage you to please download the free infographic we make available on these five elements. It doesn’t cost a penny, folks. Provides a brief description of these five elements. If you don’t understand these five elements, you cannot understand self-defense law.

So I urge you, please. If you do nothing else, download this free PDF infographic on the five elements of self defense you can get that has shown here to screen on at http://lawofselfdefense.com/elements.

And folks, we do tend to throw a lot of URLs at you, but they’re really all the same syntax. It’s always http://lawofselfdefense.com/  and then wherever we’d like you to go.

In this case, it http://lawofselfdefense.com/elements. You really only need to remember the part after the slash, and it’s usually only one word for those of you who may be taking notes about where to go after the show.

So today we are here to talk about a video of Ahmaud Arbery, again we’re covering that case here. This is a new video that was released in just the last 24 hours.

So this is an odd After Action Analysis Show, because this is not really a use of force video. Normally, what we’re covering is a use of force event, and we do our legal analysis supplying those five elements.

This is just a video of Ahmaud Arbery getting caught up in an apparent shoplifting and being arrested by the police. There’s no real use of force here other than the officer’s normal force in making the arrest of Arbery.

But this video was just released and is in the news, of course, the Ahmaud Arbery case generally in the news. So I do want to share this video with you, so you know where to find it. And again today’s show, like all the others, will be added to our aggregated list of all our shows that you can find it. http://lawofselfdefense.com/arbery

If you’d like to send people to where they can find the shoplifting video, you’ll be able to send them just that URL. And they’ll find this show as well as every other show that we’ve done.

So how is this the basis for an After Action Analysis Show, if there’s no real use event for us to analyze. Well, these Arbery videos collectively, this one as well, raise an interesting question.

And the question is, could any of these videos be relevant be admissible in the trial of the McMichaels, the two men who were involved in pursuing and ultimately shooting Ahmaud our brain, causing his death, charged now with felony murder?

This video is of Arbery’s shoplifting event. Yesterday we looked at a different video where Ahmaud Arbery had been confronted by a police officer in a park known to be a haven for drug dealing, and the cop wanted to question him about his presence in the park. And it was a confrontational interaction, one I wouldn’t characterize it as a violent interaction, although the one officer did ultimately feel compelled to deployed his Taser, click click, click it in stun mode, although they didn’t actually dart or stun Ahmaud Arbery. This is sometimes done in an effort to compel compliance: Comply or we will be Tasering you.

There was that limit of force involved in that park video. And the most current video, the only force really is the force of the police officer making the shoplifting arrest?

Does this have anything to do with the McMichael’s? Because, remember, it’s not Ahmaud Arbery who is going to trial. It’s Greg McMichael, the father, and Travis McMichael, the son who actually was holding struggling over the shotgun, his shotgun, after he’d been attacked by Ahmaud Arbery when the shotgun discharged three times, Ultimately causing Ahmaud Arbery’s death there on trial for felony murder.

Given that it’s them on trial for felony murder, do these videos of Ahmaud Arbery’s confrontation with the police in the park, this video of him shoplifting or being arrested for shoplifting, is there any reason they would be relevant or admissible in a trial of the MK Michael’s?

And the answer is, Well, maybe possibly there is a path by which these videos of Ahmaud Arbery who, let’s face it, he’s presenting in these videos as something other than an avid recreational jogger. These are confrontational interactions with police, arguably the shoplifting one involves an outright crime.

There are paths by which these videos could potentially be introduced in front of a jury. So that’s really what I want to talk about today. How could this kind of evidence be introduced in front of a jury in a case involving two defendants who are not Ahmaud Arbery, right? So that’s what will be our discussion

Before I jump into that. I do like to mention our sponsor for our Law of Self Defense Shows, that is CCW safe. They are providers of legal service memberships, what many people mistakenly call self defense insurance. In effect, they promise to pay their members’ legal fees if their members are involved in the use of force event.

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Maybe you have that kind of money stuffed in the mattress. Good for you. But if you don’t, it might be helpful to have a financial backer who could make sure you have the resources you need to be effective in that legal battle. We’d all like to think we live in a society where how much money you have doesn’t determine the degree of justice you get, but we don’t live in that society. A legal battle is like any other battle in. The more resource is you could bring to the battle, the better off you are. And of course, the prosecution in the case in which you’re being tried has, for all practical purposes, unlimited resource is on. There’s a huge difference between, say, a $300,000 legal defense and a $30,000 legal defense. They’re not comparable.

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So what I’d like to do is show all of you the shoplifting video. I’ll show it now so we can get that done. And then I’ll talk about the kind of legal processes that can be pursued to try to get this kind of evidence into the courtroom. If you’re the McMichael’s defense and you’d like to show this stuff to the jury, the arguments you might try or attempt or make in order to get this kind of videos really of character evidence into the courtroom.

So I’m here to show it with you today. I did listen to the entirety of the video. I didn’t hear any profanity that needed to be bleeped out, but I do not have a sensitive ear for those things, and there is some close captioning in the video. So if you’re sensitive to profanity or you’re in an environment where other people are, in which case you should probably be working and not listening to me, but whatever glad you’re here. But if profanity could potentially be a problem, you might want to mute your sound while this shoplifting video is playing s so that you don’t run into difficulties and then, of course, bring the volume back up once the video is done on because there is sound on the video, I won’t be speaking at the same time. That doesn’t work well from a technology perspective.

So here’s a still frame. That is Ahmaud Arbery on the right there. He’s in the company of three other young black men. They all appear to be minors 15 to 17 years of age. He’s 20 s, so he’s clearly the leader of this group. He’s interestingly enough wearing the same jacket he was wearing in the video we saw of him yesterday in the park having a confrontational encounter with police. So when the video starts, you’ll know who is to be identified.

All right with that out of the way, let’s go ahead and run the video again. If profanity could potentially be a problem, I don’t believe there’s any in the video. But if you want to play it safe, now would be the time to mute your sound. Here we go.

Okay, folks. So that was the shoplifting video. They’re not much too it, really? As I cautioned.

So the question for discussion today is how might the McMichael’s try to get these kinds of videos introduced into evidence at the trial so that the jury can see Ahmaud Arbery being arrested for apparent shoplifting, Ahmaud Arbery having that confrontation with the officer in the park.

And by the way, folks, I would just like to note again. I’ve been cautioning all of you from the very beginning that what tends to happen in these kinds of politically energized cases is that the worst narrative for the defendants is almost invariably the narrative that’s explosively released at the start of the propaganda campaign behind these cases.

In this case, that propaganda narrative is Ahmaud Arbery was a black man killed by white supremacists for the crime of jogging. That’s the narrative that launched this, the coverage of this case, the exposure of this case to the public.

Almost invariably, in these cases, however, as more and more evidence emerges, that evidence only tilts the narrative in one direction, the narrative becomes more favorable for the defense.

The case is, as evidence emerges, could theoretically shift favorably to either narrative, the narrative of guilt or the narrative of innocence. But when a case lacks merit, actual legal and evidentiary merit when it’s based on propaganda, as more evidence comes out, that evidence tends to lead us further towards the truth, and the truth tends to be inconsistent with the propaganda narrative. Or you wouldn’t need a propaganda narrative. You could just rely on the truth.

And we’re seeing that in this case, as more and more evidence drips out, it’s almost invariably, so far as I can tell it is invariably, evidence that is at least not inconsistent with the McMichael’s narrative of innocence and in many cases is favorable, maybe only modestly favorable but favorable, towards their narrative of innocence, not the other way around.

Now could there be evidence that emerges that would be damaging to their narrative innocence? Sure, if, hypothetically speaking, they were stupid enough to post racist things on the Internet, and that got discovered as it certainly would, and got disclosed. That would be evidence that would be disfavorable to the narrative of innocence.

But so far as evidence continues to drip, drip, drip out on this case, it’s all been either favorable or neutral to the McMichaels.

So the question is, how might these kinds of videos of our very get in front of a jury?

But before I do that, I see a couple of questions in the comments here about our memberships. As I mentioned at the start, our Facebook live shows only stay on Facebook normally for about a day. The next show we do deletes the prior show so you’re only seeing the most recent show on Facebook.

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Okay, so let’s talk about how to get these videos into evidence, because from a normal objective perspective, it should be a relevant to the lawfulness or unlawfulness of the McMichael’s conduct. Whether Ahmaud Arbery got into a confrontation with a cop in a park in some unrelated event, or whether he was arrested for shoplifting in some unrelated event, those events should not be relevant.

And normally, character evidence, meaning evidence that goes to a person’s character or propensity for conduct, is not admissible in court. The courts don’t like character evidence because you’re supposed to be judged. If you’re a defendant, you’re supposed to be judged based on the criminal charges against you and the actual evidence that’s produced in court about those particular charges. In that event, you’re not supposed to be judged because some people say you have a bad character or you did something bad in some unrelated instance.

So normally, character evidence is not admissible. Both character evidence about the defendant as well as character evidence about anybody else in this case about Ahmaud Arbery.

But there are exceptions to that general prohibition on character evidence. There are at least three ways that the McMichael’s defense counsel, might try to get these videos into evidence three legal paths that could open the door to doing that. So let’s talk about those three.

Path 1: To Counter Evidence of Good Character

The first way they might try to get these videos in as character evidence about Ahmaud Arbery is if Ahmaud’s character becomes an issue of dispute in the trial. And how could that happen? Well, it could happen, for example, if the prosecution makes claims that Ahmaud Arbery has a good character, if they claim he has a good character of the prosecution makes that claim he’s a nice boy, never harmed anybody, all the kind of stuff.

Well, if they make claims about good character, then the defense becomes privileged to introduce evidence about bad character, if such evidence exists, to impeach the claim or challenge the claim of good character.

So how might that happen? Well, it could happen if, for example, they put Ahmaud Arbery’s mother on the witness stand. “Tell us about what a good boy your son is.”  “So he was a lovely son. He was very attentive. He was very caring”

In fact, I’ve already seen quotes to that effect from news sources, from Ahmaud’s mother in statements she’s made to the press being reported in the media.

So if she makes those kinds of statements on the witness stand testifying as to her son’s good character, that opens up the door for the defense to introduce evidence of bad character, a possibility of introducing bad character evidence that would not otherwise be admissible but for the mother having opened up the door to that bad evidence by first testifying about good evidence.

And of course, the prosecution, by the way, is aware of this. So obviously, the prosecution knows if they put a witness on the witness stand or they themselves talk in court about Ahmaud Arbery’s good character, they better be prepared for the defense to demand and the judge to allow that bad character evidence about Arbery be allowed in.

And that bad character evidence could be things like his confrontational interaction with that police officer in the park, the video we saw yesterday, and things like this shoplifting video.

And by the way, folks, I would not recommend having the expectation that these were the only two videos we will find of Ahmaud Arbery that are not favorable. Obviously, I’m speculating on that point, but we live in a world of video, body cam video, cell phone video, especially, it seems with Ahmaud, Arbery body cam video on the part of officers, and it wouldn’t surprise me at all if more video came out in a kind of drip, drip, drip.

And if someone reminds me before I close on the legal paths to get this stuff into court, this character evidence into court, there are also strategic reasons for getting this video out into the public. His lawyers would want to be leaking this information, assuming it’s them, but it would be favorable to them to have this information come out prior to the trial as well, which is frankly, why we’re seeing it come out right now. Just a video at a time, right? Not all of them simultaneously drip, drip, drip of this kind of negative character evidence about amount.

All right, so the first way they might get into court a trial of the Mc Michaels is if Ahmaud Arbery’s character becomes an issue in the case. That would typically happen because somebody on the prosecution side of things made statements about his good character that allows the defense to bring in evidence about his bad character. If such evidence exists, that’s one path.

Path 2: Knowledge Possessed by the Defender at the Time

The second path in which this kind of evidence or evidence about Ahmaud Arbors character becomes relevant and admissible in the case is if the McMichael’s themselves had knowledge of that evidence at the time of their confrontation with Arbery.

We know, or at least it’s been reported, that the father, Greg McMichael, was involved in the investigation of our beret for a gun crime where he purportedly brought a gun into school property. By the way, is part of that event Arbery fled the school to escape capture by the authorities and then they course pursued him.

One of those law enforcement officers actually managed to fall and break his wrist or suffer some other relatively serious injury, which obviously aggravates the whole narrative around the gun charge issue.

But because Greg Mc Michaels was part of that investigation, he would be aware of the fact that Ahmaud Arbery had gun crime issues in this past, had been known to be in unlawful possession of a firearm.

Because McMichael possessed that knowledge prior to his confrontation in this event with Ahmaud Arbery, that knowledge could well influence his reasonable perception of events and reasonable decisions in acting in self-defense. Perhaps the reason he brought guns along in pursuing Ahmaud Arbery, criminal trespass into the house and their construction. Because he possesses that knowledge. That might be why he brought guns with him because he had reason to know that amount Arbery had a history of being unlawfully armed with firearms.

Is it possible that McMichael also knew that Arbery had this shoplifting issue? Perhaps, we don’t know. But if they did possess the knowledge, whatever knowledge they possessed could play a role in the reasonableness of their perceptions, their decisions, their actions with respect to the confrontation that ultimately resulted in Ahmaud Arbery’s death.

This could also apply, of course, to Travis McMichael. Now we don’t know what Travis McMichael new have you recognized Arbery from some other event. It’s speculation is rarely useful, except in this instance, to point out that whatever it is that Travis McMichael would be able to demonstrate he knew about Arbery at the time of this confrontation, well, again, what he knew in his hand at the time would be admissible because it goes to his state of mind goes to his reasonable, the reasonableness of his perceptions, his decisions, his actions in that confrontation.

But what if they didn’t know right? What if there’s evidence they’d like to introduce, and none of the 1st 2 paths have been triggered? So the prosecution did not open the door to bad character evidence by talking about Arbery’s good character. And this is evidence that the MK Michael’s cannot demonstrate, might even concede they were not aware of at the time they encountered Arbery they only learned about it later. Can that kind of evidence wasn’t the door wasn’t open by the prosecution. You did not possess the knowledge at the time of the computation. Can you get that evidence in? And the answer would normally be not that kind of character evidence.

Path 3: If Element of Innocence Is In Dispute

But there is a unique exception in self-defense cases use of force cases. And that’s the third path the defense might pursue in trying to get character evidence. Whether it’s these videos or other character evidence about amount Arbery into the trial, even though even though the prosecution didn’t open the door and the McMichaels didn’t have this knowledge at the time of the confrontation. And that exception occurs where, in court where the defense has raised the legal defense of self-defense.

By the way we should mention that it’s not certain that the McMichael’s will claim self defense. In this case, it’s quite possible they might argue that the discharge of the shotgun was unintentional because of the struggle between a very sizable and muscular. Arbery and Travis McMichael. The fighting over the shotgun could be what resulted in the discharge of the gun, and in which case the discharge was accidental, not intentional, and in which case they would then raise the legal defense of accident, not the legal defense of self defense. So we don’t know how that’s going to play out. And if they raise the legal defense of accident, this third path of giving character evidence in is probably not available to them.

But if they raise the legal defense of self-defense meaning, Hey, the discharge of the shocking was not an accident, Travis McMichael says. I discharged that shock and intentionally because I was being subject to a deadly force attack, and therefore I was privileged to use deadly force in self-defense.

So if he raises the legal defense of self-defense while, as we’ve already discussed earlier in the show, there are five elements up to five elements of a claim of self-defense. Every one of those is required, or at least they are cumulative.

Sometimes an element is waived in one of the elements here is certainly waved under Georgia law, as it is in many states, and a legal element is waived, it’s no longer legally required. But whichever the elements are not waived are the required elements. Whether that’s five or four or three and each of the required elements is cumulative, so obviously of elements required it’s required.

And so it becomes a target of attack for the prosecution, because what the prosecution has to do to overcome a legal defense of self-defense is disprove self-defense beyond a reasonable doubt. They do that by disproving any one of the required elements of self-defense beyond a reasonable doubt. And so they had these five elements that are potential targets now in Georgia.

Well, just four, because Georgia is a stand your ground state the element of avoidance is off the table for practical purposes because there is no legal duty to retreat. So a failure to retreat cannot be the reason for losing self-defense under Georgia law. So here in this case we’re only looking really at four of these five elements as potential targets for a prosecution, innocents, imminence, proportionality and reasonableness and to just briefly frame those out in terms of innocents.

The question would be, who was the initial aggressor in the confrontation? If it was the McMichael’s, they lose innocence, they’ve lost self-defense

In terms of imminence, the question would be well., was Travis McMichael defending against a threat that was immediately about to occur or actually in progress? If that’s not true, then he loses the element of eminence, he loses self-defense.

In terms of proportionality, the question would be, well, Travis McMichael used deadly defensive force. Was he facing a deadly force threat that would be required for that response to be proportional? If he loses proportionality, he loses self-defense.

And in terms of reasonableness work, it’s goes to the objective and subjective reasonable perceptions of that threat against him. In other words, if he had imagined that Arbery was attacking him, that might be an unreasonable basis for a use of defensive force. If you lose reasonableness, you lose self-defense.

Now, frankly, of those four elements, imminence, proportionality and reasonableness are pretty much locked in for the defense Arbery did charge McMichael. There was an imminent threat. At that point, the threat was actually happening, the fight over the shotgun. If someone’s fighting you for your weapon, that is a deadly force threat, folks. They’re attempting to arm themselves with deadly force. At the same time, they’re trying to strip you of your ability to defend yourself, a deadly force that’s a deadly force attack all day long. That means the conditions of proportionality in terms of reasonableness.

Now we’re not talking about whether or not you think their decision to pursue in question Arbery was a reasonable thing for a person to do. We’re limiting reasonableness here to the use of force decision making. Did McMichael just imagine that Arbery was attacking him? Well, clearly, that’s not the case. Clearly, an actual attack occurred, and clearly Travis subjectively believed that he was under attack. And objectively we can see it in the video. There’s no question that the attack occurred. You might think there was good reasons for it. That’s a different question. But there’s in terms of the reasonable perception of being subject to a physical attack by Arbery. There’s no question that that’s locked in.

So if avoidance is off the table and imminence, proportionality and reasonableness are pretty much locked in for the defense, the element that’s left, the only element that’s left really for attack by the prosecution is that element of innocence.

Who was the initial aggressor? Was it the McMichaels who were the original aggressors? Did they unlawfully threaten or use force against Arbery first, or was it Arbery who was the first physical aggressor in that confrontation?

Now, from what we see in the video, it seems incontestable to me that it was Arbery in the context of that video who is the initial physical aggressor. The McMichael’s in that video do not appear to threaten or use force against Arbery until our Arbery launched his own attack, initiating the physical aspect of the confrontation.

At least I can’t see in the video that Michael’s pointing their guns at our brave, for example. I simply don’t see it. Maybe if they made verbal threats involving the weapons, that would certainly qualify as an act of aggression. But there’s no evidence of those verbal threats. Certainly I can’t hear any in the in the video.

And of course, we don’t see what happened before the video, and we could only operate on the evidence before us. And the evidence before us is the video, so based on the video, I would suggest that it’s pretty clear again solely within the context of the video that it was our berry who was the initial physical aggressor in that confrontation.

Nevertheless, this is the only target the prosecution has for reasons we just discussed is this question of this element of innocents, this question of who was the physical aggressor. So the prosecution may try to argue that the act of following while being armed was sufficiently provocative, that it should strip the McMichaels of the element of innocents and therefore stripped them of self-defense.

That’s essentially what the prosecution is arguing in the charges, right? Remember that they are Berries are sorry. The McMichaels are not charged with murder. They’re charged with felony murder predicated on aggravated assault, which doesn’t even require a use of force. It requires a threatening of force, putting the other party in fear of being harmed with deadly force harm, which is effectively the definition of aggravated assault.

So that’s what the prosecution is arguing in the charges that an aggravated assault putting of barbarian fear occurred and that should strip the McMichael’s of innocents and therefore stripped them a self defense. So I haven’t seen evidence of that, but this wouldn’t be the first case I’ve seen where charges were brought in the absence of actual supporting evidence even brought all the way to trial in the absence of actual supporting evidence

Many of you will be familiar with the Freddie Gray trials in Baltimore, where six police officers were tried for crimes as serious as murder over the death of Freddie Gray, the in-custody death of Freddie Gray, even though there was zero evidence—zero, none, Zip, Nada–evidence that any of those officers, any of them, had used unlawful force on Freddie Gray.

Marilyn Mosby, the state’s attorney in Baltimore brought them to trial anyway and lost every case until ultimately, she had to dismiss the charges against them. And they were also cleared, by the way, administratively by their departments.

So this happens. People get brought to trial, especially in politically energized cases, even in the absence of evidence to support the criminal charges against them. That’s one of the ways that the system can use the process itself as the punishment for disfavored defendants, which is certainly the McMichael’s experience here.

So if to come back to this element of innocents of innocence is all that’s on the table, then that’s what the prosecution is going to have to attack, and if they attack the element of innocence, that triggers the third method for getting character evidence about Arbery into the trial.

Because even if even if the McMichaels didn’t possess that evidence of character at the time that they were in that fight with Arbery, even if the prosecution didn’t open up the door to bad character evidence by introducing good character evidence, if the prosecution attacks the element of innocence that opens the door to character evidence about Arbery.

But only in the context, obviously of self-defense. Because innocence is an element of self defense, and the reason for that is if you’re attacking the element of innocents, what you’re in effect saying is it wasn’t the victim of the use of force who was the initial aggressor, that it wasn’t Arbery who was the initial aggressor, tt was the McMichaels who were the initial aggressors.

So you’re making the question of who was the initial aggressor n issue of dispute in the court. And if you do that as the prosecution, well, then you effectively open the door to the defense to say well, this character evidence is relevant to the jury determining whether it was, in fact, more likely that the victim or the defendants were the initial aggressors in that use of force.

So then the defense can introduce evidence say there’s evidence of violent acts by the victim, and there’s none. There’s no similar evidence about violent acts by the defendants. Well, the defense could say, Hey, the prosecution is claiming that my client was the initial aggressor I’m allowed to introduce is evidence that it’s the other guy who has the violent, the propensity for violence, that not my client And that evidence for propensity of violence, therefore, is directly relevant to this issue raised by the prosecution of which party was the more likely to have been the initial aggressor in the fight.

Now that door only gets opened if the prosecution attacks innocence. And of course, a prosecutor knows that, too. So any of the other elements could theoretically be a point of attack for the prosecution. The prosecution might theoretically argue not that a defendant was the initial aggressor, but that he used excessive force, for example, attacked the element of proportionality. If the prosecutor attacks proportionality, well, then there’s no basis for bringing in character evidence about the other party to suggest they were the initial aggressor. Because the initial aggressor is not in dispute, the prosecution’s not attacking the element of innocence.

But once they do attack that element of innocences, once it becomes an issue in dispute on who was the initial aggressor, then that potentially opens up the door to character evidence about the victim if the victim had some kind of propensity for violence.

Now, having said that, when I look at these two particular videos that have been released in the last couple of days, the video with the police officer in the park who’s concerned about potential drug dealing and questions Arbery about his presence there, and now the shoplifting video, frankly, I don’t see evidence in those videos that would be helpful to a jury in determining who might have been the initial aggressor in this confrontation.

These are not videos showing, Arbery attacking a police officer, for example, these are not videos of Arbery being arrested for attacking someone. So that facet of violence that would be relevant to determining who might be the initial aggressor appears to me to be lacking from these videos.

So even if the prosecution attacks the element of innocents, even if character evidence about a propensity of violence on the part of our very would theoretically be admissible because of that attack on the element of innocents, that doesn’t mean this particular evidence would be admissible.

Because the judge might decide that, well, it doesn’t touch on propensity for violence. So it’s a relevant anyway. If there is evidence that touches on propensity of violence, that evidence might be admissible for the reasons we just discussed. But arguably not this stopped in the park police confrontation and the, um, shoplifting video. Now a couple of other things factors to consider here.

And it’s important to understand, by the way, folks that the decision on whether or not this stuff is admissible is not binary.  It’s not a sharp line in the sand that’s either crossed or not. It’s a judgment call that’s going to be made by the trial judge. The trial judge is going to listen to the legal argument about whether, say, propensity for violence, character evidence should be admissible. That’s one side of the debate the legal side of the debate. And then the judge will look at the actual submitted evidence and determine whether or not it’s of a type that qualifies for admission. It’s evidence relevant to a propensity for violence, for example,

And when the trial judge makes that decision about whether or not the evidence is allowed in, it’s effectively final. So there is effectively no real appeal from an evidentiary decision like that, unless it’s so egregious that would qualify for an abuse of discretion. And the appellate courts don’t like to do that.

You know, the appellate courts don’t deal with these kinds of evidentiary decisions. They don’t see witnesses. For example, they don’t they don’t they get transcripts from the trial. They like to leave all the evidentially decisions to the trial court. That’s the trial court’s job. The appellate courts don’t want to do that job over again.

So once that trial judge makes that evidentially decision, you’re effectively locked into whatever they decided. Also helpful to know that that trial judges decision on that piece of evidence has no controlling effect on any other trial judge dealing with a similar piece of evidence under similar circumstances. It doesn’t even limit that judge if he wants to come to a different decision.

In a different case, on essentially the same facts and evidence you could make a different decision in that different case. It’s extremely subjective. So when you hear about a piece of evidence being admitted or not admitted in one trial, don’t assume that means that such evidence is simply not admissible or is admissible as a as a blanket statement of law. That’s not the case. It just means that particular judge in that particular case, hearing those particular arguments on that Thursday decided that it was either going to be admissible or not. It’s not controlling on anybody else, even that same judge on a different day in a different case.

So those are the three ways that this kind of character evidence, which is normally not permitted, can get in any way. The first way is if the prosecution opens the door to bad character evidence by introducing evidence of good character. If the prosecution introduces evidence of good character, the defense is privileged to introduce evidence of bad character. If they haven’t the other way the second way is if the McMichael’s possessed that knowledge at the time of the encounter because that could have influenced the reasonableness of their perceptions, their decisions or actions with respect to our bury the third way.

Even if the prosecution did not introduce evidence of good character and the Mike Michaels did not know of it at the time is it the prosecution attacks a claim self-defense on that element of innocents? Disputing who was the initial aggressor in the confrontation? If the prosecution argues that the defendant was the initial aggressor, therefore should lose the element of innocents, therefore should lose self-defense, Then the defense is privileged to introduce evidence that’s on the point of propensity of violence for the victim of that use of force, in this case, Ahmaud Arbery to challenge the prosecution’s argument that their client was more likely the initial aggressor by using this evidence to show that in fact it’s more likely the victim was the initial aggressor then the client.

So those are the three avenues for that.

Questions & Answers

Okay, folks. I’ve got a few more minutes I could spend, so let me scroll through the comments here. If you have questions about this you’d like to submit.

John Eric Paris asked, Does it make a difference of the individuals of the McMichaels had actual knowledge of the prior history. The answer is, Yep, it does matter. For reasons we already discussed, that would be the second way to get the information in front of the jury. If the McMichael’s possessed it, then it could have influenced the reasonableness of their perceptions, decisions and their actions.

Eric asks about our law self-defense memberships. Let me pop that up again. Real quick. Um, right now, folks were running a trial for a Silver Level membership for just 99 cents. Try it for two weeks. If within that two weeks you decide it’s not for you. Just let us know we’ll cancel your membership will refund 200% of your money. It’s a negative risk proposition if you decide to stay with us silver memberships only about 33 cents a day, folks, it’s not that costly. You can learn more about this fantastic offer at:  http://lawofselfdefense.com/silvertrial

What else do we have? Might the McMichaels have done themselves a favor if they brought along some less than lethal tools that seems they only brought guns and said the response to any action with the young man would have been a lethal response.

Well, as general policy, I think it’s a good idea to always make sure that you’ve you’re carrying a gun, folks and I do urge people who are so inclined, law abiding, mentally sound American citizens. If you want to make yourself hard to kill, having a gun at hand is a pretty good way to do that. I carry again for personal protection. I have my entire adult life. I’m a fan. It’s not for everybody, but for people for whom it is a viable option. Certainly, I think it’s a reasonable way to go.

But if you’re going to carry again folks, I also always urge people to make sure you carry some non-deadly means of self-defense. My personal preference is OC spray of you.

Look at the Department of Justice statistics, you’re five times more likely to be the victim of a non deadly force attack. Then you are to be the victim of a deadly force attack. And of all you have is a gun.

And a lot of the cases I work on folks are this exact scenario. Normal, law abiding person never been in trouble with the law. A day in their lives has a concealed carry permit. They’re carrying the gun. They get frightened by somebody. They bring the gun out, they to change that other person’s behavior, which is what we do when we display a gun for self-defense, right? And the prosecutor looks, those facts decides that looks like aggravated assault to them now that clients looking at 10 to 20 years in prison, many tens of thousands of dollars in legal expenses even if they get the charges dismissed, they’ll incur that level of legal expenses.

And if they had the alternative of a non-deadly means of self-defense and deployed that instead they wouldn’t be facing any of this legal jeopardy. But they didn’t have that option. And if they didn’t have that option when well-intentioned people get scared and they have one defensive tool, what do you think they do? They go to that one defensive tool, they go to the gun and they get really jammed up.

Now, on the facts of this particular case, I don’t think OC spray would have been helpful because the McMichaels, as far as I can tell, did not raise a muzzle point a gun, threaten our very with force until our berry was already charging from just a few feet away. Uh, he’s a very large, very muscular person and gets his hands on the shock and very quickly. At that point, it’s a deadly force fight, folks.

So, I don’t really see an opportunity here for a deployment of non-deadly force. Once Arbery is charging and grabbing the shotgun that happens in a split second. Once he once Arbery turns the corner of that pickup truck. The fight is on. I don’t think OC spray would be a viable option for Travis McMichael. I suppose you could say that Greg McMichael, the father I could just have hosed both of them down with OC spray of Obviously, he would have been spraying his son, too, but who cares right? OC sucks, but it’s transient. Perhaps that would have been an option. B

ut those guys were moving around quite a lot fighting over the shotgun. And again his son is in a deadly force fight. So now what about before? Um, before Arbery’s attack, might they have pepper sprayed him? They followed them down the road, right? What if they pulled up next to him and just pepper sprayed him as he was running along the road. Well, what would be the legal justification for that? You know, there’s ambiguity here. They had suspicion about him, which is why they wanted to question him. But it’s not at all clear that they had absolute certainty that he had done something wrong. And in the absolute absence of absolute certainty, I would be disinclined to use any degree or threaten any degree of force against another person. Of course, I wouldn’t be chasing an amount Arbery dentistry in the first place, but that’s a separate matter.

Jack asks, Andrew, you mentioned one of the elements of self-defense is avoidance. How does that work depending on whether or not you’re in a standard round or duty to retreat. Yeah, the element of avoidance has to do with whether or not there’s a legal duty to retreat before you can use defensive force. There’s only a minority of states imposed that duty to retreat about 14 I say about because there’s one slow population state where the case laws kind of ambiguous. And and my gut feel is that a trial court in that state could go either way on the element of avoidance.

But it is a minority position in the U. S. The large majority of the U. S., about 36 states, is effectively stand your ground states. About half of them are stand your ground by statute, which is why the media always gets it wrong because they just look at statutes and count up how many states of a stand your ground statute. But the other half of the states are of those 36 states are stand your ground by long standing case law.

For example, California is a stand your ground state. I mean, if you look at the criminal jury instruction CALCRIM 505 for self-defense, the jury’s explicitly told that not only does this defendant not have a legal duty to retreat, he can pursue his attacker if necessary for safety. That’s a pretty robust standard ground law, but you’ll never find a California statute on standard round because they don’t have one. That law in the jury instruction reflects over 100 years of case law in California.

Also, even if you’re in a duty to retreat state most of them only apply the duty in the context of deadly force. But before you can use deadly force in self-defense, if you have an absolute safe avenue of retreat, you’re required to take it. Retreat to the wall before your privilege to use deadly defensive force so you can safely get away without having to use deadly defensive force. That’s what they want you to do in the stand your ground states, what they are effectively saying is …

And by the way, stand your ground is not some weird alternative way to claim self-defense. All it does is take away that one element of avoidance. All the other elements are still required.

So what stand your ground states are effectively saying is, Hey, if you’re the innocent victim, so you’re not, you have innocents of an imminent attack, so you have the element of eminence you use no more force than necessary. So you have proportionality, and you otherwise conduct yourself reasonably. We’re not going to put you in jail for the rest of your life because you purportedly failed to take advantage of a safe avenue of retreat under the threat of an actual life or death attack that just won’t do that.

The duty to retreat states are saying that even if all that’s true, you’re the innocent victim of an imminent deadly force attack and you conduct yourself reasonably, if we think you could have safely retreated, we reserve the right to put you in jail for the rest of your life. Despite all those other factors.

Michael asked, If I were the prosecution, would I introduce good character evidence to open the door for the opposite for the defense? Well, no, of course not. And I present the prosecutor in this case. She seems like a very capable female prosecutor. I’m sure she’ll do a great job from a prosecutor’s perspective, putting all the political stuff aside. Um, you don’t do that intentionally. Unless, of course, you think the other side has no bad character evidence. I mean, if there’s no bad character evidence, then you may well talk about the good character of your client. But of course, in this case, we know that there is bad character evidence. So you don’t want to open up that door.

But sometimes you can get surprised, too. I mean, sometimes you put a witness on the witness stand, and suddenly the witness starts talking about what a great character the victim had. That opens up the door then and it was outside of the prosecutor’s control.

Matt says, then he should have called the police. I feel like I’ve hit this point of 1,000 times. We need to not conflate the question of poor judgment by the McMichaels and criminal conduct by the McMichaels.

Poor judgment and criminal conduct are highly overlapping circles in a Venn diagram, but they’re not synonyms for each other. I think 99% of people would probably agree, the McMichael’s right now might probably, agree that their decision to pursue our berry was poor judgment, they’re certainly paying a high price for it.

That does not mean it was unlawful, and my interest is not in moralizing to people, but in talking about the actual law of self-defense, the actual use of force law?

James asked, what about provocation with respect to the element of innocents. So there is a legal doctrine in which you lose the element of innocents under circumstances of provocation. The most solid way for that to happen is if you provoke with intent.

So normally you lose innocence if you are the initial physical aggressor. Or, if you provoke with intent, but provoked with intent is not just acting in a provocative manner. It’s acting in a provocative manner, with the intent of triggering the other guy to be the initial aggressor so that you will have an excuse to use force against them.

So, it’s not just that the McMichaels are following Arbery around in their truck. Or even following Arbery with guns lawfully in their possession with guns. Is that enough to be perceived as provocative behavior that would lose them self-defense to lose self-defense? And this is applicable under Georgia law in particular, which is why I’m mentioning it.

One of the ways you can lose self-defense, you can lose the element of innocents under Georgia law, is if you provoke with intent. But the prosecutor needs to be able to prove that intent. And there’s no evidence to support that the McMichaels had the intent of inducing Arbery to be the initial aggressor so that they would have an excuse to use force against them.

Could that theoretically have been their motivation? I suppose so. But theory doesn’t help. Speculation doesn’t help. You need actual evidence.

Perceptions of the jury will matter. Well, sure, of course they are. The optics are bad. Well, the optics would have been better if they didn’t pursue him, right, but they did pursue him, so we’re dealing with the optics that we have to work with.

By the way, folks, in case anyone is uncertain about this, I say this almost every show. Um, I do not recommend that any of you go out and make a citizen’s arrest or engage in citizen’s arrest like conduct. I would not do that myself. I would not tell my friends and family to do that. I would not tell a client to do that.

I would not tell anybody to do that because the risks are certainly unreasonable, and especially in the current era of $0 bail, that bad guy that you managed to get caught might well be out on the street before you’re done talking to the police. Plus, now you’re facing all kinds of legal jeopardy, so I don’t think it’s a good idea to do this, and I would not encourage anyone to do this.

I teach full day classes on self-defense law, and we don’t talk about Citizen’s arrest at all, not because I don’t know about it because I don’t want you doing it. I think it’s a bad idea, but that doesn’t necessarily make it unlawful. If the conduct was within the bounds of that state’s laws.

Let’s see, would use the pepper spray be considered an assault when assault is putting someone else in fear? A battery is causing them some injuries, so if you spray someone with pepper spray, you’ve committed a battery. There are a couple of states that, for some reason reverse those terms, but this is how the concepts are taught in law school, so I’ll go with that.

If you spray someone with pepper spray, you’ve committed a battery, probably a simple battery, a non-deadly force , that you would now have to justify as self-defense. So you’d have to have a legal justification for having done that.

If you have the legal justification and the arguments compelling, perhaps it was perfectly lawful for you to speak pepper spray someone right? People get lawfully pepper sprayed all the time, but you do have to make our at least be prepared to raise that justification, defense and narrative in order for that use of pepper spray to be lawful.

A mere threat with pepper spray would be a simple assault if you don’t spray the person but threatened them, put them in fear of getting sprayed.

Appear says, you say you wouldn’t have followed him. Doesn’t it all boil down into that? No, it doesn’t boil them to that because there’s no law against following someone. There’s no law against saying asking someone to stop so you can ask him a question.

And I don’t believe in putting people in jail for the rest of their lives because there’s a generalized consensus that they acted unreasonably before we can put people in jail for the rest of their lives. They have to actually have broken the law following someone for lawful purposes wanted to ask them about their incontestable criminal trespass on the private property. We may think it’s unreasonable in a generalized sense, but that is not criminal conduct.

Let’s see, I guess that was Don Becker who raised that issue. Ah, yeah. So Pierre quotes me. My expert on the subject lawyer and breakfast is it never looks like self-defense when you go to the gunfight. But of course, that presumes that you’re going to fight. The McMichaels are saying they did not go to fight. They’re saying they went to ask Arbery about his conduct in committing that criminal trespass.

The fact that they were armed doesn’t mean they were going to fight. The fact that they were lawfully armed means they wanted to be prepared to defend themselves if things turned violent. And in fact, they were right. Correct. They were, in fact attacked by Arbery and needed that gun to save their lives.

Okay, folks.

Well, it’s been a full hour, so I am going to go ahead and wrap up as always. Thank you so much for joining me here today.

We do have three shows a week that we do on a regular schedule. The Tuesday show is our Cases of the Week Show. We talk about the most important use of force decisions over the last week that’s done live here on our Facebook page Tuesdays at 2 p.m. Eastern Time.

Today’s show was our After Action Analysis Show, although a slightly strange variation of it where we take a use of force event caught on video, and we do a plain English language analysis of that use of force event again. That’s on Wednesdays right here, 2 p.m. Eastern time.

Then we have our Thursday show, our News/Q&A Show, again LIVE at 2PM ET. It’s less structured, a kind of a looser show where we just talk about use of force events in the news and I’ll ask answer questions posed on a wide variety of subjects involving use of force law in this show.

Those shows are each only up for about 24 hours here on our Facebook page, then we take them down. But for our Law of Self Defense Members, they are available as replays on the Law of Self Defense Blog, and again, you can try out our silver level membership for just 99 cents folks, and if you don’t like it, I’ll give you twice your money back. So I think it would be prudent to at least take a look at http://lawofselfdefense.com/silvertrial.

And that is it for me today.

REMEMBER:

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict!

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC
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