Citizens arrest law under discussion in Georgia state House after Arbery shooting

The law allows private citizens to arrest another if a crime is committed “in his presence or within his immediate knowledge”

By Taylor Cooper
The Brunswick News, Ga.

ATLANTA — The Feb. 23 slaying of Ahmaud Arbery in Glynn County was front-and-center in the Georgia House Judicial Non-Civil Committee’s Monday hearing on whether to keep or toss the state’s citizen’s arrest law.

“This summer we’re going to hold a series of committee hearings to review and consider this citizen’s arrest law,” said committee chairman Rep. Chuck Efstration, R-Dacula. “We will hear testimony on what the law is and if it should remain in the (state) code.”

In this May 17, 2020, photo, a recently painted mural of Ahmaud Arbery is on display in Brunswick, Ga., where the 25-year-old man was shot and killed in February. It was painted by Miami artist Marvin Weeks. (AP Photo/Sarah Blake Morgan)
In this May 17, 2020, photo, a recently painted mural of Ahmaud Arbery is on display in Brunswick, Ga., where the 25-year-old man was shot and killed in February. It was painted by Miami artist Marvin Weeks. (AP Photo/Sarah Blake Morgan)

A relatively obscure law before the fatal shooting of Arbery in the Satilla Shores neighborhood, it allows private citizens to arrest another if a crime is committed “in his presence or within his immediate knowledge.”

An arrest can be made on “reasonable and probable grounds of suspicion” if the crime is a felony and the offender is attempting to escape.

Waycross Judicial Circuit District Attorney George Barnhill cited the law in a letter to the Glynn County Police Department justifying Arbery’s death at the hands of Gregory McMichael and his adult son Travis.

The McMichaels were arrested by the Georgia Bureau of Investigation in May and charged with felony and malice murder, among other crimes.

“The Ahmaud Arbery case is by no means or any interpretation a (situation to) use of the citizen’s arrest law,” said Gwinnett County District Attorney Danny Porter, who was on hand to provide the committee with background information on the law and its application.

“In my opinion, in the Arbery case, first of all, there was not sufficient probable cause to believe a crime had occurred from what I have seen; therefore there was no excuse for pursuit and detainment.”

Porter told the committee the idea of a citizen’s arrest comes “literally from medieval times” in Europe.

“Citizens were given an affirmative duty to detain and hold criminals for government officials, usually sheriffs, who came and brought them before the king’s justice or a grand jury under the Magna Carta,” Porter said.

Similar rules have been included in the Georgia Constitution since the early 19th century. The current state code “tracks the language of the 1864 amendment,” he explained.

Completely repealing the law could have some unintended knock-on effects in regards to home defense and theft prevention, he said. Outside that, the law is usually misinterpreted.

“They usually turn out badly,” Porter said of the typical citizen’s arrest case.

The committee should seriously consider excluding those two examples from any amendments to the law, he said.

“That’s something that needs to be looked at by the committee,” Porter said. “I’m not advocating one way or another, but it could cause a problem.”

Local legislators were quick to take stances on the issue following Arbery’s death.

Outgoing Rep. Jeff Jones, R-St. Simons Island, is advocating for major changes to the law while Rep. Don Hogan, R-St. Simons Island, has taken the position that citizen’s arrest should be completely repealed.

“The problem with totally eliminating the citizen’s arrest law is it will eliminate the ability of a non-law enforcement person from stopping someone from shoplifting,” Jones said.

Porter referred to the concept as the “shopkeeper’s privilege,” the ability of a business owner to stop and detain someone who tries to steal from him.

To keep from abridging this privilege, Jones said he’s worked with human rights and defense attorneys in Georgia and Florida and the Prosecuting Attorneys’ Council of Georgia to author legislation that would largely ban the use of deadly force outside of self-defense or defense of others while allowing for citizens to detain others following the commission of a crime.

“Fundamentally, it states a citizen can’t use deadly force to stop someone from committing a property crime,” Jones said. “I don’t think we want anyone by accident or otherwise to be killed over stuff.”

He introduced the bill during the busy conclusion of the state General Assembly’s 2019-2020 legislative session knowing it wouldn’t pass but hoping to start a conversation around the issue.

Monday’s committee meeting is the kind of thing he wanted to see.

Hogan just wants it gone, plain and simple.

“I think it’s just outdated,” Hogan said. ‘I think it’s dangerous, people thinking they’re going out there to make a citizen’s arrest. They’re not policemen.”

He hopes to introduce legislation soon along with Rep. Carl Gilliard, D-Garden City, to that effect.

Jones’ legislation may be something he would support after the fact, Hogan said, but he had not had a chance to read it or speak with Jones about it.

Representatives from the state NAACP, ACLU and Southern Center for Human Rights testified to the committee.

Marissa Dodson, lawyer and public policy director with the center, noted law enforcement officers must be trained and certified by the state Peace Officer Standards and Training Council before making an arrest.

“By contrast, every citizen in Georgia is given the power to conduct a warrantless arrest without any training or certification,” Dodson said, which has led to hundreds of thousands of pages of court documents in litigation related to allegedly unlawful detainment.

Home defense is covered under the state code’s “castle doctrine,” she explained, and would be impacted by a repeal of citizen’s arrest laws. As for the shopkeeper’s privilege, Dodson said she could make an argument that it would not be impacted but added that new laws could be passed to address it if needed.

State Rep. Ed Setzler, R-Acworth, challenged her on the need to repeal anything. Barnhill tried to use the citizen’s arrest statute in the Arbery case, but it did not hold up.

The leaking of a video showing the last seconds of Arbery’s life is the only reason the defense didn’t work, Dodson countered.

The prosecutor in the case was one who made the defense, Efstration pointed out, not the defense attorney, which he also found concerning.

The Rev. James Woodall, Georgia NAACP president, and Christopher Bruce, political director of the ACLU of Georgia, also weighed in during the committee meeting.

Both gave short history lessons on their own, drawing connections between the citizen’s arrest law and laws passed when slavery was legal to keep slaves from fleeing to the free Northern United States and later joining the Union army in the American Civil War.

Woodall cited instances in Georgia since the 1860s in which the law was used to justify the lynching and murder of Black citizens.

“There is no evidence it has served its purpose,” Woodall said.

Following Woodall’s testimony, Setzler responded to his claims that the citizen’s arrest law was rooted in racism, saying Woodall made “wild claims” and that he should “do better next time.”

Woodall pointed to a statement made by a GBI special agent that Travis McMichael used a racial slur after the Arbery shooting and said that to ignore “the number of Black lives taken and justified by this law would be an injustice.”

State Rep. Bert Reeves, R-Marietta, brought up the subject of detainment during home invasions or someone breaking into a car.

“If someone entered my home, but they did not use force against me, do I have the right to detain them for law enforcement or do I just tell them to leave?” Reeves asked.

Woodall said the NAACP supports the right of citizens to defend themselves, but not the ability of a private citizen to detain another.

Speaking for the ACLU, Bruce said the organization’s end goal is the preservation of life. It would not support anything that might involve the use of deadly force outside of self-defense, he said.

©2020 The Brunswick News (Brunswick, Ga.)

McClatchy-Tribune News Service

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