Arbery Killers Convicted
But Civil War Era Citizen’s Arrest Laws Remain
Mack Brown was lynched in Fulton, Ga., in 1936 for kissing a white woman on the hand. Warren Powell, just 14, from East Point, Ga., was lynched in 1889 for “frightening” a white girl. Robert Mallard was lynched in Lyons, Ga., for exercising his right to vote in 1948.
Ahmaud Arbery, a 25-year-old Black man, was lynched with a shotgun blast after he was seen jogging in the all-white Satilla Shores neighborhood outside of Brunswick Ga., on Feb. 23, 2020. But unlike in the cases of Brown, Powell and Mallard, this time Arbery’s three, White killers have been found guilty on multiple murder counts and other charges by a jury of nine White men, two White women and one Black man.
The convicted assailants said they shot Arbery in self-defense after they allegedly had attempted to make a citizen’s arrest, claiming that they suspected Arbery of committing a crime in the neighborhood. Citizens’s arrest, the arcane law passed in 1863 that was used largely to persecute Blacks in the Jim Crow period after the Civil War, has since been reversed in Georgia, but similar laws are still in place in many states.
I had only been acquainted with the term, citizen’s arrest, in the Dec. 16, 1963, episode of the Andy Griffith Show, set in Maybery, N.C., when Andy’s friend, Gomer, claimed citizen’s arrest when he arrested Deputy Sheriff Barney Fife for committing the same traffic violation that Barney just ticketed Gomer for. It was a comedy but it was based on a real law that has been used for dire reasons after arrests on trumped up charges.
The Rittenhouse verdict gave another boost to the current, so-called, Jim Crow Light era, a time when multiple states have been passing laws to make it difficult for people of color to vote. Rittenhouse was hailed as a hero vigilante by right wingers, including ex-president trump, while the NRA offered Rittenhouse a free semi-automatic rifle.
Karl Rittenhouse, an 18-year-old white man from Antioch, Ill., was cleared of murdering two protesters and seriously wounding another after he traveled to Kenosha, Wis., the scene of unrest and protest after the fatal shooting of an unarmed black man by police. Rittenhouse said he wandered the streets of Kenosha, Wis., brandishing a semi-automatic rifle, hoping to protect the public and put out fires and render first aid when he came upon the protesters who feared for their lives. The jury believed Rittenhouse’s defense that he shot the three in self-defense.
Arbery was unarmed when he was jogging through an all-white neighborhood on Feb. 23, 2020, when he was shot fatally in a confrontation with three white men, Gregory McMichael, 65, and his son, Travis, 35. Their neighbor, William “Roddie” Bryan , 52 was charged with joining the McMichaels in pursuing Arbery.
The Georgia citizen’s arrest law allowed a person to “arrest an offender if the offense is committed in the person’s presence or within his immediate knowledge.” But in practice, the law has allowed armed vigilantes to persecute Black people as it deputized any white person to arrest any Black person based on preconceived notions of criminality.
According to police, in 2019, Hannah Payne, a white woman, was enraged at the driving of Kenneth Herring, a 62-year-old African American grandfather, and chased him down and shot him.The trial remains pending. Nine months later, Arbery was assassinated in similar fashion. Neither Herring nor Arbery were dangerous criminals but they were guilty of being Black, enough to raise suspicion, hatred and bloodshed.
The Georgia law dates back to the Civil War era and was repealed after the incident. Georgia at the time, also was one of only four states with no hate crime statutes but hate crime legislation has since been passed into law in Georgia.
The citizen’s arrest practice dates back to medieval England and the English common law, when sheriffs encouraged citizens to help apprehend law breakers. In the United States, a private person may arrest another without a warrant for a specific crime occurring in their presence. The crimes for which it is permitted vary by state but in most states, a warrantless arrest may be made by a private citizen for a felony, misdemeanor, or “breach of peace,” which historically included theft, vagrancy, and playing card and dice games, specifically targeting African Americans. In Texas, courts have defined “breach of the peace” to mean an act that disturbs or threatens to disturb the tranquility enjoyed by the citizens.
In general, the force used in a citizen’s arrest must be reasonable under the circumstances to restrain the individual arrested. In Pennsylvania, a civilian may use “reasonable” deadly force to prevent an escape from a lawful citizen’s arrest.
After publicity around the Arbery killing, Georgia’s Republican Gov. Brian Kemp signed a bill year as the first state to overturn its citizen’s arrest law, calling it a “Civil War-era law, ripe for abuse.” The new law allows citizens to detain others only in specific circumstances, including shopkeepers who witness shoplifters and restaurant owners and employees who witness “dine and dash” customers.
Delvin Davis and Isabel Otero, analysts with the Southern Poverty Law Center in Georgia, wrote in a Feb. 20 column that from 1877 to 1950, at least 594 Black people were lynched by vigilante groups in Georgia.
“The true number is likely much higher, given how the stories of violent white vigilantism during the Jim Crow era often went untold,” Davis and Otero wrote.
After the south lost the Civil War, white supremacist politicians enacted numerous laws, known as Jim Crow laws, for the sole reason of intimidating Blacks and ensuring a segregated society dominated by Whites. Severe penalties, including lynchings, were lodged against Black people who violated the law by going to an all-white movie theater, riding in the white section of a train, dining in a white section of a restaurant or attending an all-white school.
Georgia remains a “Castle Doctrine” state and has a “stand your ground” statute, allowing the use of deadly force in defense of forcible felony, such as rape, armed robbery or kidnapping.
In 2012, George Zimmerman, used Florida’s stand your ground law and was acquitted of killing 17-year-old Trayvon Martin. On the night of Feb. 26, 2012, in Sanford, Fla., Zimmerman was the neighborhood watch coordinator in a gated community where Martin was visiting relatives. Zimmerman got into an altercation with Martin and fatally shot the unarmed teen.
In September 2020, another 17-year-old Black man, Adrein Green, was killed by a homeowner who claimed the teen was trying to steal a vehicle in a gated community. The state refused to prosecute the homeowner.
Castle Doctrine is typically limited to real property, including a person’s home, property and, in some states, cars or workplaces. The doctrine says that individuals have a right to be safe and secure within their home or “castle” and should not have to retreat in order to be safe and in some instances may use deadly force against intruders without retreating.
Depending on the state, an individual may have the right to protect himself, herself, other people, and his or her property by force — in some instances even employing deadly force against intruders without retreating. States with limited castle law or judicial opinions that give citizens the right to protect their homes using force, include Georgia, Florida, California, Maryland, New Mexico, Oregon and Vermont.