By now you may have seen the horrific — but sadly, these days, no-longer-shocking — video of 25-year-old Ahmaud Arbery running down a Georgia street in broad daylight, past a pickup truck parked in the middle of the road: One of the truck’s occupants holds a shotgun, the other a pistol, as Arbery runs around the truck. There’s a confrontation, Arbery defends himself, trying to pull the shotgun away as he’s shot, falling to the ground, dead.
This tragedy can be seen as many things at once: the racial profiling of yet another black man; a young life snatched because armed men suspected a minor property crime; brutal racial violence rendered almost routine as it gets replayed on a seemingly endless loop. And, perhaps, the deepest injustice is the way these elements are bound together and codified in state laws that allow white people to weaponize self-defense while claiming retroactively to have been in fear for their lives — while denying the same right to African Americans.
On Thursday, Gregory and Travis McMichael, father and son, were arrested in connection with the shooting and charged with murder and aggravated assault — more than two months after Arbery was killed. Any reasonable reading of the law, not to mention the application of common sense, will tell you that Arbery’s death should have been seen from the start as a racial vigilante killing disguised as self-defense.
Look no further than the letter written by the Waycross, Ga., judicial circuit district attorney, George Barnhill, to Glynn County Police Department Capt. Tom Jump, explaining why, in his view, no charges should be filed against the men Barnhill identifies as the pickup’s occupants, the McMichaels, both apparently white. In the letter, Barnhill recuses himself from handling the case, but not before putting his thumb on the scales of justice; he attempts to persuade his law-enforcement colleague that the men who waylaid and killed Arbery should not be arrested, nor criminally charged. (A Washington Post editor attempted to reach Barnhill by phone, but calls were not answered.)
In the course of explaining why he didn’t find sufficient probable cause to make arrests, Barnhill cites several Georgia statutes, including those governing open carry of firearms, use of force in self-defense and “No Duty to Retreat,” and describes the McMichaels intent to stop Arbery and make a citizen’s arrest as “perfectly legal.” To advance his argument, Barnhill distorts several legal norms.
As noted in his letter, Georgia’s citizen’s arrest law, which allows a citizen to “arrest an offender if the offense is committed in his presence or within his immediate knowledge.” However, while Barnhill says the deadly confrontation was precipitated by “solid firsthand probable cause,” his letter presents no explanation of what that probable cause was, nor does it state that the McMichaels witnessed Arbery attempting to commit a crime. Last month, the New York Times reported on the then not-public video of the shooting, and that “In a separate document, Mr. Barnhill stated that video exists of Mr. Arbery ‘burglarizing a home immediately preceding the chase and confrontation,’” though no reference to the earlier video is made in his letter.
Barnhill defends the McMichaels’ open carry of firearms under Georgia law, which states, “Any person who is not prohibited by law from possessing a handgun or long gun may have or carry on his or her person a weapon or long gun on his or her property or inside his or her home, motor vehicle, or place of business without a valid weapons carry license.” But his letter states with apparent certainty that Arbery “attacks Travis McMichael,” even though that’s not at all clear from the publicly available video. And his assessment provides no acknowledgment that under ordinary circumstances, and under Georgia law, pointing a gun at an unarmed person would itself constitute a form of assault. Georgia’s definition of simple assault says “A person commits the offense of simple assault when he or she … Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” According to Barnhill, these were not ordinary circumstances because the McMichaels apparently claimed to have seen Arbery on a prior surveillance video. Yet nothing contained in the letter is proof that Arbery was the surveillance suspect, and nowhere in the letter does he appear to entertain the possibility that the McMichaels first assaulted Arbery by blocking his path and brandishing firearms.
And, apart from the obvious, that the video doesn’t appear to show Arbery carrying anything that could be construed as stolen property, Barnhill’s letter elides a crucial point in one of the very statutes that he cites: Georgia’s self-defense law specifically states that deadly force “is not justified” in the interdiction of a suspected minor property crime. In other words, even if there had been “solid” probable cause to believe that Arbery was fleeing the scene of a “burglary,” (Barnhill’s term) Barnhill doesn’t distinguish the facts from a situation where self-defense is necessary to protect human life or prevent the invasion of one’s abode, and not as a way to end “hot pursuit.”
Barnhill’s conclusion, that Arbery was the initial aggressor in the incident and was killed in self-defense — and which provides much of the basis for his overall finding — seems to be based on scant support, particularly after seeing the video. It just doesn’t pass a common-sense test.
Most telling, though, is what Barnhill’s letter ignores: Georgia’s “No Duty to Retreat” law says “an individual is not required to back away from or submit to an attack.” But Barnhill only applies this as a legal defense for the McMichaels, never evaluating whether Arbery was proceeding under the same provision when he tried to grab the shotgun, presumably to prevent himself from being shot and killed. And even though Barnhill takes pains in his letter to outline specific sections of law, he leaves out the portion of the “No Duty to Retreat” provision that denies the self-defense claim to anyone who “initially provokes the use of force against himself” or is the initial aggressor. A plain interpretation of the video would suggest that the McMichaels initiated the physical confrontation with Arbery. If so, as the aggressors, they would not have access to the claim of justifiable use of force.
Another way to say this is that it was as likely, if not more likely, that it was Arbery, not either of the McMichaels, who was standing his ground. The scenario calls to mind the killing of Trayvon Martin, a case in which it was never disputed that an armed adult, George Zimmerman — acquitted of any crime — approached an unarmed teenager, and the teenager wound up dead.
Indeed, an integral part of the broader stand-your-ground legal architecture involves the exclusion of (often black and unarmed) shooting victims from “reasonable fear” and their subsequent depiction as somehow responsible for their own deaths. Barnhill’s letter is instructive in its characterization of Arbery as a criminal whose “mental health records” and “prior convictions” for, according to reports, shoplifting, rendered him a threat to public safety. These accusations serve to undermine Arbery’s status as a victim in this case while providing no value in deciphering the immediate events that led to him being killed.
Just in case his insinuations of Arbery’s criminality leave any doubt, Barnhill takes time in his letter to entertain the possibility that Arbery could have accidentally shot himself: “while we know McMichael had his finger on the trigger,” Barnhill concedes, “we do not know who caused the firings. Arbery would only had to pull the shotgun approximately 1/16th to 1/8th of one inch to fire the weapon himself and in the height of an altercation this is entirely possible.” Under this distorted logic, he comes close to hypothesizing that the encounter was actually an inadvertent suicide. In this way, he absolves the McMichaels of any responsibility in Arbery’s death, despite the events that play out starkly in the video.
Barnhill’s analysis ultimately questions Arbery’s humanity — ignoring the possibility that a black man could fear for his life when confronted by armed men — and strips Arbery of his right, as a citizen, to self-defense. Without expressly invoking race, Barnhill manages to perpetuate the well-worn tropes that reverse of the roles of victim and perpetrator when violence against a black man seeks legal absolution. Who, after all, could seriously entertain the idea that if Arbery were white, the case would have resulted in no arrests made — and been obscured from public scrutiny until video evidence came to light?
Surely, Barnhill recognized the weight of his opinion on subsequent events. His letter sanctions vigilantism. Another way to describe vigilante killing is lynching, which at least one district attorney has deemed perfectly legal.
Correction: An earlier version of this story referenced Barnhill’s “perfectly legal” statement with respect to Arbery’s killing. The quote refers to Georgia’s citizen’s arrest law.