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It is my understanding that three defendants face a Federal hate crime involving the shooting death of Ahmaud Arbery.

In April 2021, all three men were indicted on federal charges of one count each of interference with rights (a hate crime) and one count each of attempted kidnapping, while the McMichaels were also charged with separate counts of using firearms during a crime of violence.

Furthermore:

The next day on May 11, the U.S. Department of Justice responded that the Justice Department's Civil Rights Division, the FBI, and the U.S. Attorney for the Southern District of Georgia "have been supporting and will continue fully to support and participate in the state investigation. We are assessing all of the evidence to determine whether federal hate crimes charges are appropriate."[121][122] In April 2021, all three men were indicted for federal crimes – one count each of interference with rights (a hate crime), one count each of attempted kidnapping, and one count for each McMichael of using a firearm during a crime of violence.2

Waycross Judicial Circuit District Attorney George Barnhill issued an opinion prior to the arrest of the three defendants:

On April 1, Arbery's autopsy report was given to Barnhill.[78] On April 2, Barnhill wrote a memorandum to Glynn County police, recommending that no arrests be made.[11][12] Barnhill wrote that the McMichaels were within their rights to chase "a burglary suspect, with solid firsthand probable cause";[31][78] that "Arbery initiated the fight"; and that Travis McMichael "was allowed to use deadly force to protect himself" when "Arbery grabbed the shotgun".[78][79]

Barnhill cited Georgia's citizen arrest law, dating to the Civil War era, as justifying the killing of Arbery (the Georgia law says that either a crime must be committed within the citizen's "immediate knowledge", or there must be "reasonable and probable grounds of suspicion" for a felony crime). Barnhill alleged that videos of Arbery entering the home under construction on the day of the shooting showed Arbery "burglarizing a home immediately preceding the chase and confrontation.

It is my understanding that defendants will seek to invoke state (Georgia) laws as a defense:

The legal defense being argued by the defendants accused of murdering Arbery is that they were only attempting to perform a lawful citizen's arrest

IANAL: I would think Federal precedent does not enable (i.e. forbids) citizens (including retired law enforcement) to perform arrests or other law enforcment activities through the use of deadly force (i.e. giving chase with firearms, resulting in a fatality and then claim self-defense).

Does a claim of exercising state law, permitting citizens arrest, have any weight? Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time? If so, any clarification is appreciated.

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  • 1
    Defendants always have standing to try any defense. Plaintiffs have to show standing to sue if that is challenged. Standing is the right to bring a lawsuit.
    – Trish
    Oct 19 at 11:19
  • 2
    @Trish plaintiffs have to show standing before the court will even consider the defense. If the plaintiffs have no standing, the complaint is dismissed, there is no trial, and there is no need for a defense.
    – phoog
    Oct 19 at 11:35
  • The current trial is a murder trial in Georgia state court, so there's no issue.
    – cpast
    Oct 19 at 12:07
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Be careful: from the Wikipedia article, it appears that there is a state criminal trial and there will be a federal criminal trial. In addition, there is a federal civil suit which incorporates some stats law claims. The defense in each trial may be different.

Have you read the complaint in the civil case? As an example, count 1 alleges, in paragraph 214, that the defendants' actions were "without legal cause." An obvious defense is to show that the actions were actually justified under the law. The law under which they would have been justified would be state law. It's still possible that the state law justification isn't sufficient, but that is another point to be argued in court. If they can't prevail in showing that state law did authorize their actions then the act was certainly unlawful under both state and federal law.

Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time?

Standing is a threshold that plaintiffs must meet. But defendants can certainly argue self defense. Whether they can prevail on that argument depends on the facts of the case as determined by the court, in particular by the "finder of fact," which is the jury in a jury trial and the judge in a bench trial. The facts that I'm aware of in the public record suggest that the defendants would not prevail on such an argument, but that doesn't deprive them of the right to advance it in court. If someone claims that Arbery was grabbing for the shotgun then the defendants have a right to introduce any evidence of that fact that they may have. It is for the finder of fact to judge the credibility of the evidence.

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The answer to your direct question is that you are mixing things up: a state law like a Citizen's Arrest statute would only be a valid defense in a state trial. A federal trial would require a federal law that allowed for some exception. Because the trial that is beginning now is a state trial taking place in Glynn County Superior Court, the defendants can attempt to use the state law of Citizen's Arrest that was on the books at the time as a defense.

However, as something of a frame challenge to the question, whose premise revolves around a valid application of Georgia's then-Citizen's Arrest law...

The law on the books at the time was:

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.

- OCGA 17-4-60

There are a few things here that disqualify the defendants' use of "citizen's arrest" as a defense altogether:

  1. The defendants did not directly witness Arbery committing a criminal offense. Nor did they have "immediate knowledge" that a criminal offense was being committed by Arbery ("immediate knowledge" means they personally saw, heard, or used another of their five senses to know that the criminal offense occurred, see 9 Ga. Proc. Criminal Procedure § 6:19, also Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672).

Now, citizens can pursue someone they didn't see commit a crime if the crime is a felony and if that person is fleeing. But...

  1. Arbery did not commit a felony (criminal trespass is a misdemeanor in Georgia).

As well,

  1. Georgia's citizen's arrest law at the time (which was repealed as a direct consequence of Arbery's death at the hands of the defendants) did not afford citizens the explicit right to use deadly force to detain someone.

That the defendants did not directly witness Arbery commit a criminal offense, that they pursued him for alleged suspicion of a non-felony offense, and that they not only intentionally introduced firearms into the situation, but also brandished/pointed them at Arbery without provocation each invalidates their defense of Citizen's Arrest.

This doesn't discuss the "reasonable and probable grounds of suspicion" requirement, which I believe they fail on as well.

You can view a comprehensive timeline of the events and list of facts (along with graphical aids) on this local News channel's reporting clip: https://www.youtube.com/watch?v=PzNxSGsluSg (content warning: violence, hate speech, guns)

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  • Unless the property was posted, I am not sure that what they witnessed Arbery doing would even qualify as criminal trespass in Georgia. Unless Arbery did so with an unlawful purpose, but the defendants do not appear to be claiming any immediate knowledge of such unlawful purpose. Oct 20 at 14:23
  • @RBarryYoung I admit I'm not 100% on what the requirements are, but pretty much any time you intentionally enter a private property you don't own without permission, you are criminally trespassing. There are exceptions like when you can't possibly avoid traveling through the property to get where you need to/have a right to go, like an adjoining property or a path, etc., or if you only skirt the edge and don't cross any existing physical or demarcated boundaries. But Arbery went out of his way to enter the property and remain there for a while, and left the property the same way he came.
    – TylerH
    Oct 20 at 14:27
  • @RBarryYoung Now, whether anyone would bother prosecuting him for it (assuming it does qualify as criminal trespass) is another matter... people walk around homes under construction in their neighborhoods and check them out all the time (when construction crews aren't there, typically). There's no particular issue with the occasional lookie-loo, so "no harm, no foul" is usually the practice there. I think a jury will find the behavior of the defendants in this regard extremely excessive/unwarranted.
    – TylerH
    Oct 20 at 14:29
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Citizen's arrest is a valid form of arrest in the United States and dates back to before the United States (the concept is medieval era). The core idea is that one need not be a duly sworn law enforcement officer to lawfully detain someone who has committed a crime. The practice saw wide use in the Wild West, when often times the sheriff of a county had a lot of ground to cover. During his time as Sheriff, Pat Garratt (the man who killed Billy the Kid) ran the sole law enforcement agency for all of Lincoln County, New Mexico, which at the time was the largest county by land area in the United States. This was not uncommon in the West either... and pay for law enforcement officers was meager. Most Sheriff's had a few permanent deputies to assist them, and when that wasn't enough could deputize ordinary citizens to help keep the peace in law enforcement situations.

Most states have this codified however, it is common law throughout the United States. The reason that Georgia law is being requested to be used is that Georgia's laws on citizen's arrest would be pertinent in their case and may differ from Federal Citizen's arrest rules (which given that most law enforcement takes place at state level, might not be as well codified.).

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  • There are no federal citizen's arrest laws in the United States.
    – TylerH
    Oct 20 at 14:25
  • Many states have significantly restricted citizen's arrests by statute, and I think some may have eliminated it altogether. Oct 20 at 14:38
  • @DavidSiegel: I'll admit to the restrictions, but I'm not sure on the bans.
    – hszmv
    Oct 20 at 17:54
  • @TylerH: With that in mind, I don't think there is a law banning it outright either, otherwise the states that have it would be in violation of Citizen's Arrest Laws.
    – hszmv
    Oct 20 at 17:55
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    @hszmv A person's right to citizen's arrest is based on the laws of the state they are in at any given time, not where they are from. If GA does not have a law, for example, then a resident of Texas (where they do have a law) cannot perform a citizen's arrest while visiting in Georgia, because Georgia's laws apply within Georgia's borders, not Texas' laws.
    – TylerH
    Oct 20 at 17:58

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