After Action Analysis: May 6, 2020

Hey folks,

Today’s After Action Analysis focused on the video released today of the shooting death of Ahmaud Arbery in Georgia by two men who claim they were seeking to make a citizens arrest on the reasonable belief that Arbery had just committed or attempted a felony.

I mention several statutes and cases in today’s show, and promised to provide links to those, and you can find those below the video.

And with that out of the way, enjoy the show!

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Georgia Statutes & Case Law Links

Here are those statute and case law links I promised:

Georgia’s citizens arrest statute:
§17-4-60 Grounds for arrest

Georgia’s felony burglary statute
§16-7-1. Burglary

Georgia case law qualifying home under construction for felony burglary:
Smith v. State, 226 Ga. App. 9 (GA Ct. App. 1997)

Georgia case law qualifying tool shed for felony burglary:
Mezick v. State, 291 Ga. App. 257 (GA Ct. App. 2008)

Recap

So, a quick recap of all our plugs before we wrap up:

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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
Law of Self Defense CONSULT Program

37 thoughts on “After Action Analysis: May 6, 2020”

  1. This one leaves me horribly confused. Use of deadly defensive force for mere property in GA? No. Use of deadly defensive force to prevent a felony? Again, no unless the felony is such to cause death or grave bodily harm. BUT if I reasonably feel that someone has committed a felony and is running away, it is OK to do what normally would be considered assault with a deadly weapo?. Makes me want to throw up my hands and say Nope, the law is too treacherous, not worth the risk. My only hope is that if I follow ” Is is worth it?”, then I can lessen my legal danger.

    1. The father and son will make the argument that Arbery’s attempt to seize one of their guns meant they had good reason to fear he would shoot them.

      It wasn’t a matter of defending property with deadly force. Suppose someone tries to snatch property from you but you refuse to let go. The thief produces a deadly weapon, to make you stop resisting, so you shoot him. At that point, you are protecting your life and health, not your property.

      Anyone contemplating a citizen’s arrest should be aware that he lacks a critical advantage enjoyed by a police officer who has properly identified himself. It’s a crime by itself to resist arrest by an officer even if you are innocent of the crime for which you are arrested. I question whether that applies to a private citizen trying to make an arrest. Had Arbery successfully seized the shotgun and killed the father and son, he would have had a strong case for self defense even if he had committed the burglary for which they tried to stop him.

      1. I thought, according to Andrew, if Arbery committed a felony, all resulting deaths after the fact would be considered felony deaths. Like the example where you flee and if a cop kills someone, the perp would be charged with that death. He would lose the right of innocence. Or is there something else I may be missing?

      2. “Had Arbery successfully seized the shotgun and killed the father and son, he would have had a strong case for self defense even if he had committed the burglary for which they tried to stop him.” I think it is worth noting right here that a jury can find the defendant was justified in using deadly force in self defense and then turn right around and convict the very same defendant of felony murder for the very same homicide that they just found was justified. Self defense is not a defense to a felony murder charge. This is an interesting clearly established and well settled proposition of law that I haven’t seen much talk about on these self defense forums, and something people should be more aware of.

        1. Attorney Andrew Branca

          Well, you don’t usually defend against a felony murder charge, per se (absent very technical legal issues).

          The felony murder charge is predicated on some underlying felony. You defend against the underlying felony.

          In the case of the McMichaels the felony murder charges is predicated on an alleged offense of aggravated assault (in the case of Travis McMichael) and aiding and abetting aggravated assault (in the case of Greg McMichaels). It is that aggravated assault charge they will be defending against. If they win that, the felony murder goes away because there’s no longer an underlying felony.

          And self-defense certainly IS a legal defense to a charge of aggravated assault, as is a claim of justification under citizens arrest law.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          1. :The felony murder charge is predicated on some underlying felony.”

            I was talking about Arbery claiming self defense for a felony murder charge. His predicate felony would be burglary and self defense would not be a defense to burglary, therefore Arbery would not be allowed to claim self defense if charged with the felony murder of Travis McMichael.

  2. StercusEnFuego

    I completely agree with Edward’s comment in the video (0:50:04) giving the perspective of the person being approached. I was actually finishing writing this when I heard it.

    This is why citizens arrest statutes are absurd and incredibly dangerous. They essentially allow armed people wearing street clothes and driving unmarked vehicles to approach someone and make known their intent to detain them. WTF? What would you do in that scenario? Honestly, if you approach me with a gun and attempt to detain me and I don’t have any way of knowing you’re a cop, it seems eminently reasonable for me to presume that you intend to use deadly force on me.

    We don’t do ourselves any favors when we do things like this. It’s events like this that give the anti-2A crowd more ammunition to keep trying to take our guns away because it makes us look like vigilantes.

    Call 911, take pictures and video, and be a good witness.

    1. Attorney Andrew Branca

      Unfortunately, citizens arrest law in the US is almost entirely very old law, meaning it could probably be well-served by a complete overhaul.

      In GA, for example, most of the decisive citizens arrest case law is from the early 1900s, and the “recent” citizens arrest case law is mostly from the 1970s.

      That said, the current law is what the current law is, and that’s what these two men are entitled to be judged by. If the legislature wanted different laws on citizens arrest, or even to prohibit citizens arrest entirely, that was within their authority. They didn’t. Indeed, most states haven’t. So here we are.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

  3. Andrew you were certainly right about this case blowing up. Since watching the After Action show I have seen the video on the national news and several facebook post s and the local news here in NC. I hope that what the two defendants say happened is the truth , but I feel like they are going to have a rough road to prove it. It almost looks like they had someone follow them to record the action.

      1. Attorney Andrew Branca

        I’m sure you’re aware that the news is little more than propaganda.

        Anybody watching the news would have believed George Zimmerman was outrageously guilty of murdering Trayvon Martin for the crime of wearing a hoodie.

        Anybody watching the news would have believed that Michael Brown was on his knees, hands in the air in surrender, shouting “Don’t shoot,” when he was viciously murdered by a racist police officer.

        Anybody watching the news would have believed the Covington kids racially assaulted that poor Native American drummer.

        I could go on, but hopefully you have the point–none of those narratives were anything close to the truth. So why were you lied to? Cui bono?

        And why would you believe that the same people–Al Sharpton, Benjamin Crump, the media–aren’t lying to you in precisely the same way and for precisely the same reasons again in this case?

        Believe the news if you like, but you do so at your own peril.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

        1. Thanks for the reply and I totally agree with your analysis,but I still have a problem believing that some one just happened to be following the victim with a cellphone camera if they didn’t know that something was going to happen. I don’t believe the RGIC lawyers have anything in mind but stirring up trouble and probably getting a big check. I really enjoy your content.

  4. Bill Barrister

    What could he possibly have stolen? He running in shorts. What could he have stuffed in his pockets to justify their reasonable belief he committed a felony? These gentlemen are going down. They were guilty of aggravated assault at a minimum. Hope you don’t have to consult on this case in court. Up hill road if jury picked from lower socioeconomic neighbor; they still violated his Civil Rights – Federal Case. Long road ahead for these 2 vigilantes.

    1. Attorney Andrew Branca

      Burglary doesn’t require that anything was actually stolen, only that there was an intent to steal, which can be inferred from the circumstances, so whether or not he was in possession of stolen property is irrelevant to the underlying felony robbery.
      That fact also addresses the rest of the issues you raise.
      –Andrew
      Attorney Andrew F. Branca
      Law of Self Defense LLC

  5. An arrest was made:
    https://www.wsj.com/articles/video-sparks-calls-for-arrests-in-shooting-of-black-man-in-georgia-11588880193?mod=djemalertNEWS

    “Two white men have been arrested and charged with murder and aggravated assault in the fatal shooting of Ahmaud Arbery, a 25-year-old black man, in southern Georgia.

    The Georgia Bureau of Investigation took Gregory McMichael, 64, and his son, Travis McMichael, 34, into custody Thursday evening, according to a statement from the statewide law enforcement agency. The arrests came after a video showing the two men’s Feb. 23 encounter with Mr. Arbery circulated on social media and sparked a national outcry.”

  6. Georgia resident here: I don’t understand. I get that the citizens arrest is lawful under Georgia law. I also know that it’s legal open carry a firearm inside of yourself vehicle because it’s an extension of your property, but in the video Aubrey runs toward the truck and one of the shooters is standing outside of the truck with a firearm. Is that not brandishing? Is that not a threat? He’s no longer in his property so this shouldn’t be protected, right?

    Aubrey runs around the passenger side of the vehicle and the camera goes off to the side. When it comes back up Aubrey and the shooter are both in front of the truck. I assume that guy went around the front to meet him, but I also realize that’s an assumption. For these reasons, since one of the key components of self defense is needing to be able to prove your believe your life is at risk, would 2 armed men trying to chase you down and stop you not fill that requirement? It looks to me like, and with my current understanding, Aubrey would have been in his rights to attack the guy on the ground because he believed his life was at risk. Unfortunately it was.

    1. Attorney Andrew Branca

      What controls the lawfulness of the McMichaels use of force is not Arbery’s state of mind–so it doesn’t matter what he might have been thinking–but the McMichaels state of mind. It’s theoretically quite possible for both the McMichaels and Arbery to have been justified in using defensive force, in which case either could use force against the other and be legally justified.

      Applied to the facts of this case, however, that theory of justification tends to hold up much more strongly for the McMichaels, however, who appear to have been in the course of making a lawful arrest of a reasonably suspected fleeing felony burglar, than it does for Arbery, who would be fully aware that he’d just been engaged in conduct consistent with felony burglary.

      And, no, merely holding a gun in ones hands for lawful purposes–in this case, self-protection from a reasonably suspected felony burglar, whom you know to have been previously convicted of unlawful gun possession–is not automatically unlawful brandishing. In fact, it’s not unlawful at all.

      –Andrew
      Attorney Andrew F. Branca
      Law of Self Defense LLC

      1. StercusEnFuego

        I have no reason to doubt your legal analysis. However, I don’t think this statement, is valid:

        “Applied to the facts of this case, however, that theory of justification tends to hold up much more strongly for the McMichaels… than it does for Arbery, who would be fully aware that he’d just been engaged in conduct consistent with felony burglary.”

        That last part assumes Arbery is actually guilty when the facts of the case as presented don’t seem to indicate guilt one way or another. We don’t know yet that this wasn’t a case of mistaken identity or misperception on the part of the McMichaels. Maybe he was burglarizing. Then again, maybe he was he had some other non-felonious reason for being on the property (e.g., chasing after a lost pet). I don’t know if we know either way at this point.

        Unless I’m missing something, unless evidence is brought forth shedding more light on Arbery’s actions, it seems to rely exclusively on the McMichaels’ statements without other supporting evidence. That said, given Georgia law, it may be that a fair and impartial jury could have reasonable doubt of their guilt.

        I do tend to agree more with your first statement: “It’s theoretically quite possible for both the McMichaels and Arbery to have been justified in using defensive force”

        Even if the McMichaels are found to be justified in their use of force and were acting in accordance with the law, Georgia and other states would be wise to get rid of these stupid, antiquated citizens arrest statutes. They’re just asking for trouble.

        1. Attorney Andrew Branca

          “That last part assumes Arbery is actually guilty …”

          Whether Arbery is ACTUALLY guilty of felony burglary is irrelevant to the legal analysis of the McMichaels conduct. In order for their effort to make a citizens arrest of Arbery it is only necessary that they have a reasonable SUSPICION that he is in flight from a felony burglary–it is not required that they be absolutely certain that he committed felony burglary, nor that he in fact committed felony burglary. Reasonable suspicion that a suspect is in flight from a felony is all that is required to make a citizens arrest under GA citizens arrest law.

          Fleeing from an unlawful entry onto private property is sufficient for such a SUSPICION. Especially if the pursuers know the suspect to be a convicted felon as Greg McMichaels knew of Arbery.

          If the citizens arrest is lawful, it follows that the stop is also lawful, as an essential component of lawfully arresting a reasonably suspected fleeing felon.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          1. StercusEnFuego

            That makes sense, Andrew. Thanks for the clarification.

            Man this citizens arrest stuff is nasty. Giving untrained civilians (the former police officer in this case notwithstanding) the legal right to apprehend dangerous criminals is insane. Maybe it was necessary in some long gone era but I think their time is way past due.

            I hope these two get a fair trial despite the full frontal assault of leftist ideologues trying to railroad them, but I also hope this case causes these laws to be reexamined.

  7. Interesting contradiction in GA (and almost every State nationwide) law, without a Certificate of Occupancy (COO) you can’t legally dwell in your “dwelling,” even if it is fully completed. If you do so, you are committing a crime. So it can be a defensible “dwelling,” even if actually dwelling in it would get you fined and/or arrested. The Law is an intriguing thing.

    http://atlanta.elaws.us/code/coor_ptiii_apxa_chi_sects104_sec104.8

    (a) New buildings. No building hereafter erected shall be occupied or used, in whole or in part, until a Certificate of Occupancy shall have been issued by the Director and posted on the premises certifying that such building conforms to the provisions of this Code and other laws and ordinances affecting the construction, maintenance, alteration, repairs and use of buildings and facilities.

    1. Attorney Andrew Branca

      Its mistaken to think that because a word has one meaning in one legal context that it keeps that same meaning in other legal contexts.

      “Curtilage” for example has a very different scope for search & seizure law purposes than it does for use-of-force law purposes. Some word, same general meaning, but very different application in those two different contexts.

      Similarly, “dwelling” can easily have a different meaning for “occupancy” purposes than it does for “burglary” purposes (or, for that matter, for “use-of-force law” purposes). Same word, same general meaning, but very different application in those two different contexts.

      That’s because the public policy goals of each context are, of course, completely different.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

  8. Dillon Alexander

    One thing I’m confused on: It appears in the video as though the man with the shotgun was out of his vehicle with the gun in hand before Arbury made contact. How does this stand up in line with what you’re allowed to do in a citizens arrest? In a self defense case, having a weapon drawn without an imminent threat would make you the lose innocence, would it not? Is it different with this citizens arrest law, or am I wrong about the self defense law entirely?

    1. Attorney Andrew Branca

      McMichaels is allowed to be out of his vehicle, because he’s making a lawful citizens arrest, which necessarily includes making a stop of the suspect to be arrested, especially if they are in flight.

      McMichaels is allowed to have a firearm in his hands, because Georgia is an open carry state.

      There’s a difference between holding a gun in your hands and threatening someone with it. Most of us have been to gun ranges and know this to be true–just because someone is holding a gun doesn’t mean they are threatening you with it, even if they are speaking to you at the time.

      If you have evidence of either McMichaels actually pointing or explicitly threatening Arbery with a gun prior to the point at which Arbery charges and attacks them, please share it with me.

      For those of you from states with a gun culture very different than that of Georgia, it’s worth keeping in mind that what might qualify as an assault on an implicit basis in your state (“he was holding a gun, and that scared me”) very well does not even come close to doing so in Georgia.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

  9. I think it is a shame that both McMichael’s did not invest in your Level 1 course. If they had listened to Chapter 32 “Was it worth it?” they might have followed a different course of action. Looks like you now have a perfect case study for that chapter, even if they are not convicted their lives will be changed forever.

  10. Bill Barrister

    I have followed your analysis of this event. I have a problem with some missing facts. How, if ever, did the McMichaels get notified that the victim was burglarizing a home? Is it illegal to stop and check out new construction in any neighbor in GA? I have done this in FL and not been shot! Is there any requirement to post signs warning citizens that they can not look or be on a construction site under penalty of arrest for burglary or trespass? Were there any such signs as I did not see them in the multiple videos of this incident? What are the facts supporting the McMichaels notification that justified a citizens arrest? It is a red herring and misdirection to list statutes on burglary of a shed/structure instead of mere trespass. Jogging is not a crime. I would be scared for my life if I was confronted by gun totting strangers while walking for exercise even tho I am white. He was black and had to know bad things happen to blacks just for being black. I agree he should not have tried to take the gun but if he thought he was going to be shot, then some defense is better than none. We do not live in the post Civil War days anymore that such actions by non-law-enforcement can be tolerated. This is Am., the land of the FREE; not Russia or Iran or even China where your freedoms are curtailed. Ther can be no justification for the actions of the McMichaels!

    1. Attorney Andrew Branca

      “How, if ever, did the McMichaels get notified that the victim was burglarizing a home? ”

      I don’t understand why this is a relevant question. What difference does it make HOW they got notified, so long as they possessed the information necessary for reasonable suspicion?

      There are really only two scenarios here on this point.

      1. They possessed the knowledge necessary for reasonable suspicion through totally normal means–e.g., because they were only across the street from the underlying felony someone shouted it to them, or they received a call, or they observed the crime personally, or whatever, there’s an unlimited number of ways they could have reasonably possessed the necessary knowledge) and it’s that reasonable suspicion that triggered the attempt at citizens arrest.

      OR

      2. The McMichaels pursued Arbery with NO knowledge of the underlying felony–because they just wanted to murder a black guy for jogging?–and then JUST GOT LUCKY that Arbery (now on video unlawfully inside the home) had in fact committed an apparent felony burglary moments earlier across the street from their location. Talk about a lucky break!

      You’re free to go with scenario #2, but I don’t believe anybody is that lucky, when there are perfectly normal circumstances that could have provided them with the information necessary to establish a reasonable suspicion that Arbery was fleeing a suspected felony burglary from across the street.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

    2. Attorney Andrew Branca

      “Is it illegal to stop and check out new construction in any neighbor in GA?”

      It is illegal to unlawfully enter private property. Certainly Arbery knew the property was both private and not his own, so his entry was unlawful. There need be no signs posted, anymore than most of us put no trespassing signs on our front doors.

      Arbery was not shot for jogging, he was shot for violently attacking a lawfully armed man and attempting to seize his firearm.

      Arbery was not subject to arrest for jogging, he was subject to arrest for creating a reasonable suspicion that he was in flight from a felony burglary.

      You are free to disagree with the public policy benefits of Georgia law, but as you note this is America, and we are judged by the law as it exists, not as people might have preferred it to exist. If you want a different legal outcome, get the law changed.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

      1. “Arbery was not shot for jogging, he was shot for violently attacking a lawfully armed man and attempting to seize his firearm.”
        Has Travis McMichael made a statement admitting that he intentionally shot Arbery in self defense, or has he made the fatal mistake of making a statement providing the prosecution with evidence that the shooting was unintentional?
        What is the degree of culpability for a common assault in Georgia? In my state, Missouri, it is negligence. Might not the prosecutor’s theory of the case be that everything Travis did was lawful right up until the point where he unintentionally shot Arbery, and that the accidental shooting was a simple assault that resulted from Travis’s negligent conduct in carrying a chambered and cocked firearm, with the safety off and his finger on the trigger. And wouldn’t such simple assault, being committed with a firearm, be the predicate offense for the aggravated assault? I mean, I have to think the prosecutor knows the law in Georgia and has some kind of theory supported by evidence. Hate to think the state would arrest two law abiding citizens just to appease a lynch mob and stop the imminent riots.

        1. Attorney Andrew Branca

          “I mean, I have to think the prosecutor knows the law in Georgia and has some kind of theory supported by evidence.”

          Have you forgotten the Zimmerman trial?

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          1. I didn’t mean to imply he had a good theory, just that he must have a theory and the defense needs to figure out what it is before trial and be ready to address it.

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