Ahmaud Arbery: Legal Analysis: Use of Force: May 13, 2020

Ahmaud Arbery: Legal Analysis: Use of Force: May 13, 2020:

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

Georgia’s justification statute (including use of force in making lawful arrest):
§16-3-20. Justification

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

Georgia’s aggravated assault statute:
§16-5-21. Aggravated assault

Georgia’s simple assault statute:
§ 16-5-20. Simple assault

Georgia’s open carry statute:
§ 16-11-126. Having or carrying handguns, long guns, or other weapons; license requirement; exceptions for homes, motor vehicles, private property, and other locations and conditions

Home under construction qualifies for felony burglary purposes.
Smith v. State, 226 Ga. App. 9 (GA Ct. App. 1997)

Assault requires an unlawful act.
Woodruff v. Woodruff, 22 Ga. 237 (GA Sup. Ct. 1857)

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

10 thoughts on “Ahmaud Arbery: Legal Analysis: Use of Force: May 13, 2020”

  1. StercusEnFuego

    Would you say that the combination of facts and relevant law in this case is more complicated than usual? It sure seems so to me. If we consider us viewers and commenters as the jury, it seems that if you (an experienced defense attorney) are having a time of it to convince us of the defense’s case, then the McMichaels’ attorney is going to have their job cut out for them to convince the trial jurors. The multiple layers of law seems pretty complicated to me. Add to it the confusion over citizens arrest law, and I’m curious if you think this case is a more complicated one than others you’ve experienced.

    1. Attorney Andrew Branca

      The cause of the complexity is solely the tsunami of disinformation and misinformation being injected into the case.

      The law and facts of the case itself are pretty straightforward.

      Would a reasonable person observing Arbery’s conduct–halting his progress along the street in front of the home under construction, looking around for witnesses, entering the home, staying inside a few minutes, then fleeing from the scene at speed–have had a suspicion that Arbery unlawfully (a certainty) entered the property with the intent to steal (inferred from conduct, as intent is always inferred from circumstantial evidence)?

      If there was a reasonable suspicion of felony burglary, then the McMichaels were privileged under GA law to make a citizens arrest of the fleeing Arbery.

      If privileged to make an arrest of a fleeing felon, they are necessarily privileged to pursue and stop that fleeing felon in order to make the arrest.

      When Arbery then attacked Travis McMichael and fought him for his shotgun, it was Arbery committing an unlawful act of deadly force aggression, and the McMichaels who were conducting themselves lawfully.

      Arbery’s death, as unfortunate as it may be, is then simply the lawful outcome of attacking an armed man who is acting lawfully, fighting him for his weapon, and getting lawfully shot and killed in the process.

      See, it’s not all that complicated, if one sticks to the actual evidence and cites the actual relevant law.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC
      Law of Self Defense CONSULT Program

      1. You’re full of BS and obvious racial bias/black hatred. I myself have gone into sites under construction to view what the build will be like in my quickly gentrifying area. He did not flee the scene, he merely continued on jogging after viewing the site. Funny how white people can enter a site, do the same as he did and not be considered acting in a suspicious manner. You are over reaching and suffer from a bad case of excuse-ittis (a bad disease you can die from because you have an excuse for everything) to allow your fellow racist off the hook for murder. Furthermore, Arbery did not engage the father until he had a shot gun pointed in his face and any reasonable person would defend himself in such circumstances especially considering the culture of the South. Arbery was attacked by the father and and fought to prevent harm to himself that is until the other murder, the son, Travis, shot Arbery. Those two pieces of shits were acting in a vigilante manner, gunning for the blood of an unarmed black man. They should have allowed police to come on scene once they made their 911 call, but they felt they were the law and above the law.

        1. Attorney Andrew Branca

          “You’re full of BS and obvious racial bias/black hatred.”

          Hahahaha, have a nice night. 🙂

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

  2. Left Coast Conservative

    Thanks for leaving this posts available. I do indeed use your media to discuss with my family and friends to discuss the law of self defense. As you know there are many, many incorrect notions about self defense law out there.

    Left Coast Conservative
    Millersburg, MO.

  3. With all due respect, I don’t care for your theory that there was no citizens arrest. There are facts that could be introduced into evidence, if the court allows, that would support a finding that the defendant arrested the homicide victim by shooting him. The hue and cry went up and the chase began when the offender exited the home and started fleeing the scene of the crime. In the circumstances the shooting was a reasonable use of force to arrest the offender. That being said, neither justification nor excuse (accident), are a defense to felony murder. What has to be defended in this case is the predicate felony of brandishing, or aggravated assault as it is called under Georgia law. There are two defenses, first being I didn’t do it, there was no display of a deadly weapon in a threatening manner and therefore no predicate felony committed; and the second being, if there was a display of a deadly weapon in a threatening manner the display/threat was a justified use of reasonable force in making a citizens arrest. and therefore no predicate felony was committed. Limiting your defense to an argument that the display wasn’t brandishing, when you could justify brandishing, isn’t, in my opinion, advisable. Loosing sight of your primary objective of defending against the more relatively minor offense of aggravated assault can get you convicted of the felony murder charge.

  4. Pingback: Ahmaud Arbery Files – Law of Self Defense

  5. The Georgia Statue on burglary requires that an person unlawfully enter a “dwelling” (trepass) ……” AND with the intent to commit a felony or theft therein,” So one question will be what hard evidence is there that Aubery intended to commit a felony therein? The information I can find here in Georgia does not provide prima facie evidence that he did. The game cam that captured his actions does not show Arbery attempting to take anything. Second question: The owner has stated he had no relationship with the McMichaels. That being the case, Counselor Branca in his own course has stated that unless you have a formal agreement with a neighbor to protect their property in their absence, going to your neighbor’s house to stop a felony is very problematic legally. Third. In Prayor vs. State the court ruled that… “The transcript reveals the charge given by the trial court was taken from the Supreme Court case of Hayes v. State, 261 Ga. 439, 443 (6) (a) (405 SE2d 660) (1991), wherein that Court stated *58 as follows: “OCGA § 17-4-60 provides that a private citizen may make an arrest if a felony is committed in his presence or within his immediate knowledge. A private citizen may make an arrest upon reasonable and probable grounds of suspicion if the offense is a felony and the offender is escaping or trying to escape. For a citizen’s arrest to be valid, the citizen must use no more force than is reasonable under the circumstances. . . . Also, . .. deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony.”

    In the video, Arbery is running down the street to the stopped truck. McMichaels is already out of the vehicle, presumably with firearm in hand. At this point the question begged is: Is the presentation of a firearm “reasonable under the circumstances” considering the McMichaels had apparently passed Arbery and no doubt ascertained he was unarmed? When McMichaels exited the truck with firearm in hand, this was a clear offer of force at a moment when Arbery offered no threat to McMichaels. One may presume that the McMichaels were ordering Arbery to stop. I believe an argument can be made that since Arbery had not stolen anything, that he was in fear for his life at that moment. Would a reasonable person believe that two unknown and armed men, attempting a forcible stop with firearms in hand pose an immediate threat of imminent serious bodily harm or death?

    Fourth: Another question is whether the McMichaels had “an immediate knowledge” of Aubery’s entry into the dwelling or did they sally forth based on hearsay? (the reports of neighbors or the owner – who stated he had no relationship with the McMichaels) Ergo, were the McMichaels in the immediate vicinity of the house. (within sight of it). To look at it another way, would a sober, prudent, and cautious individual, on hearing from neighbors of a burglar that they themselves are not aware of, arm themselves and go hunting for the burglar?

    Finally the attorney for the house owner himself released several security videos and, observing consistent behavior in each video, HE suggested that Arbery was merely stopping to get a drink of water as in each video he does not appear to take anything and his movements are consistently toward water sources in the house. Remember the Georgia code requirement regarding burglary that states: “AND with the intent to commit a felony or theft therein,”

    https://chicago.suntimes.com/2020/5/15/21260345/ahmaud-arbery-shooting-video-water-breaks-lawyer

    1. One thing that is perplexing to me is that the house under construction had cameras hooked up and running. Generally homes under construction do NOT have their electricity turned on until the project is fully wired, received inspection and permission from the zoning board to do so….

      1. Cameras were hooked up and running because there had been an ongoing problem with trespassers, prowlers, and burglars on the property, The owner had reported the theft of $2,500.00 in fishing gear from a boat behind the house and there had been a number of recent thefts in the immediate vicinity of the house.

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