Arbery Case Trial: Judge Walmsley Drops the Ball On Ambiguous Citizen’s Arrest Law

UPDATE: Because it seems possibly helpful to the discussion, I’ve appended to the bottom of this post the video, and a transcript, of the entirety of the citizen’s arrest portion of Judge Walmsley’s instructions to the jury.

Today the jury heard the last of argument and received their jury instructions in the Arbery case trial, in which defendants Greg McMichael, Travis McMichael, and Roddy Bryan are each facing a count of malice murder, four counts of felony murder, and then the four predicate felony counts (two for aggravated assault and two for false imprisonment).

In the interests of keeping our coverage somewhat orderly, I’m going to address each of the day’s major events—the closing rebuttal of ADA Linda Dunikoski and the reading of the instructions to the jury by Judge Timothy Walmsley—separately.  I covered the Dunikoski rebuttal in my previous piece of content, so here I’ll cover Judge Walmsley’s instruction of the jury.

Well, more accurately, I’ll cover the small portion of that instruction that’s the part that really matters here—the instruction on citizen’s arrest, §17-4-60. Grounds for arrest.  And that instruction was an exercise in patent professional failure of duty on the part of Judge Walmsley.

This entire case essentially hinges on the question of the underlying citizen’s arrests.  If the effort to make a citizen’s arrest of Ahmaud Arbery was lawful, then everything that follows was likely also lawful.

Conversely, if the effort to make a citizen’s arrest of Arbery was unlawful, then everything that follow was also likely unlawful.

And both sides fully understand this.  In particular, ADA Linda Dunikoski is fully aware that if she loses the jury on the question of citizen’s arrest, she loses the trial entirely.

Naturally, then it’s in her interest to have the citizen’s arrest statute interpreted as narrowly as possible—and there’s definitely room for interpretation in this statute that was first made law back around the Civil War, and makes use of legal terms of art that likely don’t mean today what they might have meant back in the day.

Certainly, nobody drafting a citizen’s arrest statute today would construct it as this one is constructed.

The amount of ambiguity in the statute is really remarkable if only because of the statute’s brevity—it is only two sentences long.  Those two sentences are:

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.

My own reading of that statute, applying normal rules of statutory construction, is that the two sentences present two different scenarios for a citizen’s arrest.  The second sentence refers explicitly to a felony scenario and sets out certain requirements for that scenario that differ from the requirements set out in the first sentence.  My reading is that the first sentence is therefore contemplating the alternative criminal scenario, the non-felony, the misdemeanor.

So, if the citizen’s arrest is being made for a serious felony, like murder, the person making the arrest is required to have reasonable and probable grounds of suspicion, which Judge Walmsley is interpreting as probable cause.  Fair enough.

If the citizen’s arrest is being made merely for a misdemeanor, however, then probable cause is not enough.  After all, an arrest is a real burden on a person’s personal liberty, and ought not be done lightly

Before we’ll allow a citizen’s arrest for a relatively minor crime, then—imagine shoplifting, for example—we’ll require more than just probable cause, we’ll require that the offense was committed in the presence of the person making the arrest, or that they have immediate knowledge of the offense (perhaps observed from a distance, for example).

So, my reading of this citizen’s arrest statute is that the first sentence refers to arrests premised on a misdemeanor offense, and the second sentence refers to arrests premised on a felony offense.

ADA Dunikoski urges a different reading of this statute. She argues that the first sentence is supposed to apply to all citizen’s arrests, whether for misdemeanor or felony offenses, such that any citizen’s arrest requires that the offense be committed in the presence of or with the immediate knowledge of the person making the arrest.  The second sentence then adds additional conditions—the probable cause requirement—that must be met in the case of felony arrests.

This construction makes no sense to me, if only from a public policy perspective.  Why? Because it makes it easier to make a citizen’s arrest, to constrain a person’s liberty if they’ve merely committed a misdemeanor like shoplifting than if they’ve committed a heinous felony like murder.  That doesn’t make sense to me.

In addition, if we’re supposed to read in the “presence/immediate knowledge” into the second sentence, then the “probable cause” language in the second sentence serves no purpose.

If the offense occurred in your presence or with your immediate knowledge you have a degree of certainty that’s vastly greater than mere probable cause—you know for certain that the offense happened.  Probable cause is merely a probability that it happened. That’s less than certainty.

It’s like saying that before you can make any arrest you have to be 100% certain of the offense, but before you can make a felony arrest you also have to be 51% certain. That makes no sense.

So, as you might expect, I favor my reading of the Georgia citizen’s arrest statute over the reading that ADA Dunikoski urges.

In any case, however, at the end of the day, the question of how this law is to be applied in this criminal trial is not up to me, and it’s not up to ADA Dunikoski

And most definitely of all, it’s absolutely not up to the jury, whose job is to be the finder of fact, to work through any ambiguity of evidence—not to work through the ambiguity of law.

The person in charge of the law in a trial is the judge—in this case, Judge Timothy Walmsley.  It is his duty to decide how the law is to be applied to the facts as the jury determines those facts to be proven or not proven.

And this Judge Walmsley abjectly failed to do.  And in a trial with three defendants looking at life in prison, that’s a contemptible professional failure.

Remember—the key issue is whether the two sentences in the citizen’s arrest statute are intended to be melded together so that both apply to all arrests, or whether the conditions of the first sentence refer to misdemeanor arrests and the conditions of the second sentence refer to felony arrests.

That’s the fundamental issue that Judge Walmsley needed to resolve.

And he did not.

Here’s the video and a transcript of the relevant portion of his instruction to the jury on citizen’s arrest, with the critical paragraph italicized:

 

The 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.

At no point does the Judge tell the jury whether they are to treat the two statutory sentences as both applying in all arrests, or whether the separate felony conditions are to be independently applied in the case of an arrest predicated on a felony offense.

So with all the legal experts in that courtroom—three attorneys for the State, and apparently 6 attorneys for the defense, plus Judge Walmsley—we are going to leave the fate of these three defendants to however the jury decides to interpret an ambiguous statute that appears to befuddle even the experts.

It’s ridiculous.

It was the duty of Judge Walmsley to decisively construct a non-ambiguous jury instruction from this ambiguous statute. Sure, maybe a later appellate court would decide he’d done it wrong, and reverse him—but at least he’d have done it, which is his duty.

I would also note, that had Judge Walmsley done his duty and resolved the ambiguity of this statute, there’s only one possible legally-sound outcome—that the two sentences not be conflated, but rather be treated separately.

Why is that?  Because under the legal doctrine of lenity, when a criminal statute is ambiguous, that ambiguity is always to be resolved in the favor of the defendant, never in the favor of the State.  It is the government that drafted that statute and passed it into law, not the defendant.  If they left in ambiguity, that’s on the government, not the defendant.

In short, Judge Walmsley dropping the ball on this all-important citizen’s arrest jury instruction simply makes this entire trial little better than a train wreck, and any guilty verdict this jury delivers is inevitably tainted by the failure to provide the jury with clear and unambiguous instructions on the key legal issue in the case, the issue that determines guilt or acquittal for these three men on charges that would put them in prison for the rest of their lives.

It’s contemptible.

Sigh.

In any case, here’s the entirety of the instruction of the jury by Judge Walmsley—other than the bungled citizen’s arrest jury instruction, everything else was boringly common:

OK, folks, that’s all I have for you on this topic.

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

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

UPDATE: Judge Timothy Walmsley: Citizens Arrest Instruction (emphasis added)

The defense of justification can be claimed a when the person’s conduct is justified, as the use of force in defense of self or when the person’s conduct is reasonable and is performed in the course of making a lawful arrest.

The 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.

The terms in his presence and within his immediate knowledge are synonymous in a crime committed in one’s presence only if, by the exercise of any of his senses, he has knowledge of its Commission, or by the accused admitting that such a crime is being or has been committed.

A private person may not act on the unsupported statement of others alone.

A private citizens warrantless arrest must occur immediately after the perpetration of the offence or in the case of felonies during escape.

If the observer fails to make the arrest immediately after the commission of the offense or during escape, in the case of felonies, his power to do so is extinguished.

A private person may arrest an offender upon reasonable and probable grounds of suspicion that is on probable cause, which is defined as facts and circumstances that are sufficient toward a prudent person, or one of reasonable caution in believing in the circumstances shown that the suspect has committed an offense.

The facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial. The test merely requires a probability less than a certainty, but more than a mere suspicion or possibility.

In determining whether probable cause exists, the totality of the circumstances must be considered.

Whether probable cause existed is for the determination of the jury.

Now, an arrest is defined as the taking seizing or detaining of the person of another, either by touching or putting hands on him or by any act indicating an intention to take such person into custody, and which subjects such person to the actual control and we’ll have the person making the arrest. An arrest can occur, even when a subject is not told that he is under arrest.

A person is authorized to use in making a lawful arrest only that degree of force that is reasonably necessary to accomplish the arrest. The mere fact that a lawful arrest is being made, does not give the person the right to use excessive force or an unlawful degree of force upon the upon the person being arrested.

 

 

 

 

9 thoughts on “Arbery Case Trial: Judge Walmsley Drops the Ball On Ambiguous Citizen’s Arrest Law”

  1. I had a similar problem with the jury instructions in the Chauvin trial. The judge refused to clarify what “substantial cause” meant in the context of the death of Floyd. Does it mean the “but for” cause? The 51% cause? If not, then what does it mean? This was a monumentally important question given the multitude of contributing factors to Floyd’s death. I felt like this vagueness left the all-important legal meaning of causation entirely up to the imagination of the jurors.

  2. Andrew, obviously there was evidence that Arbery committed misdemeanors in the presence of Travis and that this was the first opportunity Travis had to arrest hiim. Did the judge instruct the jury that a citizen could make an arrest for a misdemeanor committed in their presence? I am not aware of any stale misdemeanor rule. All the cases I have seen held that the arrest had to be made as soon as reasonably possible, and this was the first time that it was reasonably possible for Travis to make the arrest for the misdemeanor offesnes. I have see case law holding that criminals do not have a get out of jail free card just because they escaped from the scene of the crime.

    1. Attorney Andrew Branca

      I think nobody knew really what to do with the citizen’s arrest stuff–the key to the whole trial–because there were no coherent boundaries set out by the court.

      1. Yes, that’s certainly the rub. As you pointed out, it’s archaic law that would have been crystal clear back in its time, given the circumstances and sensibilities of the day, but not exactly clear in contemporary “civilized” society. However, the proper way to deal with that is, as you said, to construe the vagueness against the state, who drafted the statue, and had every opportunity to revise it if they chose to do that. Frankly, the repeal of the Georgia citizens’ arrest statute is a positive benefit that came out of this mishap, and plenty good enough for me, without squeezing every pound of flesh from the defendants who simply wound up on the wrong side of a legal anachronism. Alas, the angry mob is not satisfied by compromise or reason.

        1. Attorney Andrew Branca

          There’s very little case law on point. Almost all the case law on citizen’s arrest involves out-of-jurisdiction law enforcement officers making arrests in Georgia, most of the rest involves shopkeeper type cases, and the few that are traditional citizen arrest cases don’t touch on the issues relevant in this trial.

        2. Attorney Andrew Branca

          One way to interpret the general absence of case law on this issue: citizen’s arrests were fairly routine and accepted, so didn’t get prosecuted, didn’t make it to the appellate courts where case law would be created and discoverable. Or, citizen’s arrests were so rare that there was never a real opportunity for case law to be generated. That second one would not be so helpful to the McMichaels and Bryan.

          1. 1863 was actually just a codification of the existing citizens arrest law which dated back to 1776. And I suppose the citizens arrest law adopted in 1776 dated back to the establishment of the English Colony of Georgia in1732. Probably don’t have many of those cases on the computer. lol

  3. Andrew: here is Missouri’s CORRECT codification of as much of the English law of citizens arrest as is not repugnant to the U.S. Constitution and as was aopted by all the states pursuant to reception statutes or case law of the states. Not all state legislatures did this good of a job of codifing it, but it is what it is and those ambigous codifications in other statesmust be interpreted by the courts to say what this correct codification says simply because the law is what it is.

    2. A private person acting on his or her own account may, subject to the limitations of subsection 3 of this section, use physical force to arrest or prevent the escape of a person whom such private person reasonably believes has committed an offense, and who in fact has committed such offense, when the private person’s actions are immediately necessary to arrest the offender or prevent his or her escape from custody.

    3. A private person in effecting an arrest or in preventing escape from custody is justified in using deadly force only:
    (1) When deadly force is authorized under other sections of this chapter; or
    (2) When he or she reasonably believes deadly force is authorized under the circumstances and he or she is directed or authorized by a law enforcement officer to use deadly force; or
    (3) When he or she reasonably believes such use of deadly force is immediately necessary to arrest a person who at that time and in his or her presence:
    (a) Committed or attempted to commit a class A felony or murder; or
    (b) Is attempting to escape by use of a deadly weapon.

    4. The defendant shall have the burden of injecting the issue of justification under this section.

    There is substantial evidence in the record that the McMichaels reasonably believed Arbery had committed an offense. There is substantial evidence in the record that Arbery had in fact committed an offense (tresspass, proweling, reasonable apprehension type of assault on Travis, and burglary). There is substantial evidence in the record that the McMichaels actions were immediately necessary to arrest the offender or prevent his or her escape from custody.

    There is substantial evidence in the record that Travis was justified in using deadly force to make the arrest because there is substantial evidence in the record that Arbery was attempting to escape by use of deadly force and a deadly weapon (fists were being used as deadly weapons and he was attempting to gain possession of Travis’s shotgun) and Arbery’s attempt to kill or wound Travis was the commission of a forcible felony in Travis’s presence that justified Travis’s use of deadly force to prevent the felony from being accomplished. There is no evidence in the record that Travis used deadly force before he was justified in using it.

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