Ahmaud Arbery: Felony Murder Based on Attempted False Imprisonment: May 22, 2020

Hey folks,

The man who filmed the attack by Ahmaud Arbery on Travis McMichael, William “Roddy” Bryan, has been charged by the Georgia Bureau of Investigation (GBI) with felony murder predicated on criminal attempted false imprisonment, according to various news reports.

If that sounds like a mouthful of a charge, that’s because it appears to have been tortuously constructed. Indeed, I cannot find any record in Georgia legal history, searched via LEXIS, of any case involving a charge of attempted false imprisonment, much less a case of felony murder predicated on attempted false imprisonment.


That said, attempted false imprisonment is found in the legal records of other states, including California, Missouri, Wyoming, and others, so it’s not like it’s an entirely fabricated charge—but I can find no record of it being previously used in Georgia. Also, it’s unclear to me to what extent felony false imprisonment is an appropriate predicate crime for felony murder, again I find no record of this being done in Georgia before, but it is at least discussed in the appellate records of other states.  I’ll come back to this point in a few moments.

One interpretation of this back-bending, apparent first-in-Georgia-legal-history, effort to charge Bryan with felony murder predicted on attempted false imprisonment is that the authorities have simply chosen to completely bend the knee to the outrage mob orchestrated by Benjamin Crump, Al Sharpton R. Lee Merritt, et al., and there demands to arrest and charge with murder everyone having anything whatever to do with Arbery’s death.

One might also consider the expansion of these felony murder charges to Bryan on this basis to be a kind of Public Service Announcement to Georgia residents generally, to the effect of:

“We don’t care what Georgia citizens arrest statute (§17-4-60) may permit, if you pursue a black suspect and that suspect dies in the course of that pursuit, even if as a result of his own conduct, and no matter what your claimed legal justification or the legal merits, we will charge you with murder and put you at risk of spending the rest of your life in prison, in the worst case, and certainly compel you to expend vast sums of money and reputation in order to avoid conviction, in the best case.”

As always, of course, we seek to base our legal analysis on actual law, so let’s take a look at the relevant laws applicable to this felony murder charge against Bryan.

First let’s consider Georgia’s false imprisonment law, §16-5-41, which reads in relevant part:

(a) A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.

(b) A person convicted of the offense of false imprisonment shall be punished by imprisonment for not less than one nor more than ten years.

Of course, there was no actual false imprisonment in this case, so Bryan is instead charged with a criminal attempt at false imprisonment.  Georgia’s criminal attempt law, §16-4-1, reads in its entirety:

A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.

In terms of the possible sentence for attempted false imprisonment, it is set at no more than one-half of the possible sentence for an actual false imprisonment, which works out to a maximum of 5 years on the attempt charge, per §16-4-6. Penalties for criminal attempt.

That said, the attempted false imprisonment is being used as the predicate for felony murder, and the penalty for felony murder, per §16-5-1, is punishable by life in prison, life in prison without possibility of parole, or even execution.

It’s also worth asking what evidentiary basis exists for this charge of attempted false imprisonment, meaning that Bryan intentionally attempted to arrest, confine or detain Ahmaud Arbery without legal justification.

In the initial police report generated after Arbery’s death (embedded below) Greg McMichaels is said to have told the officer that “[Bryan] attempted to block [Arbery] which was unsuccessful.”  That is, of course, not actually evidence of an intent on Bryan’s part to block Arbery, but merely evidence of McMichaels interpretation of Bryan’s intent.

In any case, “blocking” would seem to be a different matter than “arresting,” “confining,” or “detaining” someone, particularly in the open area in which Arbery was running.

Further, it must also be noted that false imprisonment, or more accurately in this case attempted false imprisonment, occurs only when the arrest, confinement, or detention is without legal authority—but that legal authority might well be provided by §17-4-60. Grounds for arrest, which provides in its entirety that:

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.

I haven’t time today to thoroughly review the actual evidence available on Bryan’s conduct that would support either the charge of attempted false imprisonment, on the one hand, or the justification of citizens arrest, on the other, but I expect folks in the comments will jump in to link such evidence as exists, which I’ll review over the weekend for further analysis.

It’s also unclear if the law of attempt is appropriate under the facts of this case.  Attempt is a well-established area of the law, and generally has two elements:  one is an intent to commit an unlawful act, and the other is an overt act in furtherance of that underlying unlawful act.

An example would be some who breaks a car window in order to steal property inside the vehicle, who gets frightened away before the theft can be consummated.   He had the intent to commit the crime of theft, and the breaking of the car window was an overt act in furtherance of that underlying crime of theft, so we have attempted theft.

That said, it is normally the case that the overt act be something that is itself unlawful.  I’ve done a quick search for examples of criminal attempts in which the overt act was itself lawful, and I’m difficulty finding any.  If it is required that the overt act necessary for attempt be itself unlawful, Bryan’s following (normally not unlawful) or “blocking” (if true, but also normally not unlawful) of Ahmed would need to have been done for unlawful purpose in order for the attempt charge to stick.

Finally, it’s also unclear if the doctrine of felony murder is properly applied to an underlying felony of attempted false imprisonment.  Although not stated in the felony murder statute, and I haven’t had time to do a thorough review on this issue of Georgia case law, the doctrine of felony murder typically requires that the underlying felony have a reasonably foreseeable danger to life.  That is, not just any felony will do.

To illustrate this point, under Georgia §16-9-20. Deposit account fraud the passing of a bad check in excess of $1,500 is a felony.  If that check is passed to a recipient who has a fatal anaphylactic shock reaction the ink used in printing the shock, we technically meet the literal conditions of Georgia’s felony murder statutory language under §16-5-1:  “(c) A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.”

Such a death would not typically be considered to be a reasonably foreseeable risk of passing a bad check, however, and thus the felony passing of a bad check would not typically be an appropriate underlying crime for a felony murder charge.

It is, of course, much easier to imagine an attempt at an arrest requiring the use of physical force, and for that physical force to escalate to a deadly force level, and for death to occur as a result—but it’s not at all as clearly foreseeable as a death that occurs in the course of, say, an armed robbery.  This is particular the case if the person seeking to make the arrest is accompanying men he knows to be armed.  It is unclear to me whether Bryan was aware that the McMichaels were armed during his pursuit and filming of Arbery, however.

In any case, that’s all I have on this matter for the moment, so until next time, 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
Platinum Protection Program

P.S. Here’s that initial police report immediately following Arbery’s death:

23 thoughts on “Ahmaud Arbery: Felony Murder Based on Attempted False Imprisonment: May 22, 2020”

  1. Pingback: PINNED: Ahmaud Arbery Files – Law of Self Defense

  2. It would seem that there couldn’t be a charge of false imprisonment without the use of force or the threat of force, and from that it would seem to follow that there could not be a charge of attempted false imprisonment absent force or the threat of force or at least an attempt to use force.

    Are there any other force-requiring crimes where an attempt can be charged in the absence of any attempt to use force? Someone might be guilty of attempted murder if they pull a trigger on somebody and the round fails to fire. They TRIED to use force.

    Fraud can be an equivalent of force: trick someone into killing himself by walking off a disguised precipice or trick him into shooting himself with what he thinks is an unloaded gun, but there is no fraud in the Arbery-McMichael case.

    In the absence of any attempt to use of force it would seem that a simple defense is available. Can’t the McMichaels’ and Roddy Bryan simply explain that they had no intent to use force to detain Arbery but were only trying to maintain surveillance of him until police arrive, both by asking him stop and by continuing to place themselves where they could continue to ask him to stop, with no intent at any point to physically restrain him?

    This does seem to be what they were doing. Unless they issued verbal threats to use force then their actual non-forceful actions would seem to constitute a preponderance of evidence in favor of any claim they make that they did not intend to use force, providing much more than a reasonable doubt against the proposition that they WERE intending to use force.

    That makes the charge a miscarriage of justice. Of course politicized prosecutors don’t care about that. They just want to pull that miscarriage off, probably by trying to muddy the distinction between what it might be reasonable for Arbery to have perceived about the neighborhood men’s intentions and the evidence about their actual intentions.

    It might have been reasonable for Arbery to interpret that the men intended to use force against him. I would challenge that. I think they had already demonstrated, by not using force against him in the first two encounters, that they were not intending on attacking him or using force against him. But jurors certainly could be sympathetic to the idea that Arbery thought he was about to get shot.

    The reasonableness of that perception by Arbery bears no relation to the reasonable doubt standard for guilt applied to the question of whether the McMichaels actually did intend to use force against Arbery, a proposition for which there is very little evidence, but I wouldn’t put it past prosecutors to try to confuse the jury on this matter.

    “If the glove does not fit you must acquit,” when everyone who grew up with winter knows full well that a soaked leather glove that is allowed to dry will absolutely NOT fit.

    I can see it now: “If it was reasonable for Auhmad Arbery to cast aside doubt then you must too. They put him in that situation and must be held responsible for it!”

    Would I make a good demagogue or what?

  3. IMHO the cop’s report of what McMichael’s said to him about Roddy’s unsuccessful intention to block Arbery, is inadmissible hearsay. The Cop HEARD McM SAY something, which McM did not swear to nor sign. Moreover, how would McM know what Roddy was trying to do unless there were a conspiracy in advance, for which there seems no evidence. So far as I know, Roddy did not park his truck sideways across both lanes or get out of the truck. Neither have I heard that he had a gun. Neither is there any evidence that he spoke to Arbery of which I have heard. To slap somebody in jail this way without bail to me smacks of a lynching. Roddy’s lawyer indicated he is petitioning for a speedy trial & may wave the Grand Jury, which is a big goof IMHO, as the GJ of white Glynn County may vote NO BILL. (This takes only 5 votes out of 16.) Chatham County (Savannah) has about 40 percent black, & Savannah itself is one of the largest majority black cities in the USA, hanging jury territory. I don’t think they can change-venue on Grand Jury in GA. I don’t know if the judge (who majored in Environmental Studies) has to hold the trial in Glynn County or can just get a jury from Savannah (without formal change of venue). The Judge apparently is up for election in 2022 in Chatham County. A solid black vote could put him out of office. BTW, videos have now appeared on YT showing a NO TRESPASSING SIGN on Mr. English’s home, & it is confirmed that English reported theft from his property. 3 Videos by Channel Summerlin Monroe, along with his written comments are very educative on Mr. English & his vacant house. https://www.youtube.com/watch?v=ii9WE_vT1WQ

    1. The police report says that the officer who prepared it had his bodycam on. I can’t see why anything Greg McMichael said about what he saw William “Roddie” Bryan do would be hearsay. As to whether there was a “conspiracy”, that is something I wouldn’t assume did not exist merely because the police report is silent on the subject, any more than I would assume GM did not see the trespass because the report omitted to say so.

      Yes, Larry English lied on the Chris Cuomo show when he answered a question about what he had reported on previous occasions saying that the cameras had alerted him to trespassers https://www.youtube.com/watch?v=KBw6C6SHalE&t=265 when in fact he reported thefts. I guess he’s more scared than neighborly.

      In FLA Corey could indict by way of an information, skipping the Grand Jury. Not in GA?

      Do we have an address for Arbery?

      1. You say “I can’t see why anything Greg McMichael said about what he saw William “Roddie” Bryan do would be hearsay.” IT IS HEARSAY, unless Greg McM testifies to what Roddy was trying to do. Greg McM did not testify at all. Testimony by Greg would not be hearsay (made under oath). And so far as we know, Greg had no basis for knowing what Roddy was TRYING to do. All we have is what a cop says that he said (hearsay). If Greg had signed a statement, that would not be hearsay. What the cop report is is what the cop is saying, & he is saying what he heard somebody say. The cop is not a witness to what Roddy did. Now what Greg says about himself, is admissible hearsay, like a confession about oneself.

  4. The Roddy Video: At first I thought it made highly probably from that video that Arbery suddenly turned left & attacked a stationary Travis. But on a closer look, I now see that at one point Travis is about 1 yard to left of his truck, but later we see him slightly in front of the left side of the truck, indicating that at some point he moved from left to right. The actual frame that shows him in front of left side (of truck) appears to me to be a shot of him taking a step backward (to left), stretching one foot back so that he appears to lean to the right, his head appearing beside the rear view mirror. The camera gets off target a while & the truck blocks the view quite a bit. So it seems debatable as to when Travis moved to right. If he moved with a gun in his hand towards Arbery, that seems bad for him. Did Arbery see him moving right as he got in front of the truck, so then Arbery thought he had to take that gun before he got shot in the back? Or did Travis move right before Arbery got in front of the truck on the right & then did Travis stop? Then did Arbery see him & charge a stationary Travis? The only actual movement I see by Travis is moving back & away from Arbery (to left), though we must infer that at some point he did move to the right.

    1. It’s of no import that Travis moved from the driver’s door to in front of the left headlight. And with Arbery charging at him he is entitled to prepare to defend himself, from either direction, provided he had not forfeited his right to self defense. There is no question that they wanted Arbery to stick around for questioning by the police, a perfectly legal reason to demand he stop.

  5. I find I was probably mistaken above on the NO TRESPASSING SIGN, as the YouTube channel master told me that the photo of Mr. English’ house with the No Trespassing sign was a recent photo (probably ~May, 2020, not back when Arbery was visiting that house). So I still don’t know for sure if there was a NT sign when Arbery was visiting.

      1. I have done a lot of listening & reading. Mr. English did say that a guy was trespassing. BUT, I have been unable (though I have done a lot of looking) to find evidence that English had a sign (except for May), neither have I found any proof that English SAID he had a sign. I searched Google intitle:arbery intitle:”no trespassing,” & got no results. So if you have proof of a NO TRESPASSING sign, please post it.

  6. Correct me if I am wrong, but it seems to me that a trial jury could not be shown an unredacted copy of the Police Report, which was based on Gregory McMichael’s statements to a policeman. IMHO the things McM says about Roddy & about Travis are hearsay & inadmissible; thus if the cop reports that McM said his son Travis shot Arbery, that would not be admissible. What McM says about himself, is admissible hearsay, like a confession. Otherwise, the state could use the cop statement vs the theory that Arbery fired the shotgun by pulling on it when Travis’ finger was on the trigger (Bump Stock firing). I suppose the defense could put on an expert demonstration of Bump Stock firing (made famous by Stephen Paddock).

      1. I can’t see that Body cam makes a difference. What Greg McMichaels said is hearsay unless it is under oath & signed by McMichaels, with the exception of a confession about himself. For the Bodycam did not record Roddy doing anything during the pursuit. If it had recorded the pursuit, it would not be hearsay. I would like to hear from an attorney on this. Cop heard McM SAY something; Bodycam hears McM say something (hearsay). An actual witness to Roddy is somebody who saw Roddy do something or heard Roddy say something.

  7. Let’s not make this over-complicated. This is all about getting Bryan to throw the McMichaels under the bus. Do the math. The evidence against Bryan looks weak. But as Andrew said, you have a 10% chance of being convicted regardless of the evidence, perhaps more than that because of the racially charged nature of the case. Your life is going to be in the hands of 12 not-so-randomly selected knuckleheads. A prosecutor says, hey, I can remove that 10% chance that you will live in a cage the rest of your life, maybe even come away from this without spending every penny you and your family possess or can borrow, just testify against your buddies, the McMichaels, about what they said and did. It’s also nothing unusual: a routine strategy of prosecutors over-charging on the crime to instill fear and elicit cooperation.

    1. That assumes he ever had a conversation with the McMichaels, which is not in evidence. And if the McMichaels did nothing illegal then what has Roddie to give up?

    2. I wonder if by charging all 3 the prosecution leaves itself without a witness to the alleged crime of doing some crime that led to the confrontation at the pickup truck.

  8. The only case I have been able to locate in the entire country where felony murder has been coupled with attempted false imprisonment is the unpublished case People v. Nguyen (Cal. Ct. App., Nov. 14, 2002, No. C028892) 2002 WL 31521536.

  9. I suspect that, until any of us see the whole dash-cam video; we are guessing quite a bit here. My understanding is the video of this is about 4 minutes long total. How much has anyone seen in the public domain? What does the audio portion have during that 4 minutes? Talk about out-of-context. A few seconds out of the entirety of the video. Let’s not rush to judgement.

  10. StercusEnFuego

    I recall reading or hearing (can’t remember where) that Mr. Bryan said he regretted taking the video of the incident. If he did say that, I have no doubt the prosecution will use that as “consciousness of guilt” or “spontaneous confession” (however legally specious) or some other evidence against him either in a trial or to strong arm him into a plea or confession. That said, this seems like an almost frivolous charge.

    1. I think that the Roddy case would make many people reluctant to take a video of a crime (shoot the messenger). However, for me the video that Roddy took helps me to think that Arbery attacked Travis when he did not have to.

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