Justice Cedes its Ground

May 18, 2020

I wish my father were still alive. I’d like to talk to him about Ahmaud Arbery’s killing.

Dad was a homicide detective who taught me the value of due process of law. He also carried a concealed weapon every time he left the house. He’s not here to see the ugly intersection laid bare: Second Amendment activism overlapping with naked racism in America.

If he were here, I would ask him about the difference between policing and self-defense. I’m pretty sure he’d tell me self-defense doesn’t entail chasing down other people with guns, as video released today in Arbery’s case purports to show. Arbery’s killers, according to news accounts, pursued him for four minutes before they confronted, shot, and killed him.

I wonder how my father would feel about Stand Your Ground authorizing everyone to work a job to which he dedicated his life for 26 years.

I never thought twice about my father’s ability to defend himself or the public. Policing was his profession, after all. He’d long ago been screened, trained, armed, and entrusted by the state to serve and protect the public at large.

That training included chapter and verse about meeting force with force—a split-second calculus designed to ensure, among other things, a police officer’s ability to return to his family after his shift ended.

He also swore to uphold the United States Constitution. I’d like to think the solemnity of taking that oath involved something more than “grab your gun and hop in the truck, son.”

Those are the words I imagine retired district attorney investigator Gregory McMichael uttered to his son, Travis, before the two chased, confronted, shot, and killed 25-year-old Arbery.

Now it’s the McMichaels, not Arbery, who are being afforded due process of law.

***

Instead of calling the currently badged professionals, the father-and-son duo took it upon themselves to patrol their mostly white, unincorporated “Satilla Shores” community in Glynn County, Georgia. The two maintain Arbery, who was black, resembled a burglary suspect they had viewed on video.

The first DA assigned to the case recused herself, noting the elder McMichael worked for her office for two decades. She’s on record stating the incident was portrayed by police as an attempted robbery, followed by the McMichaels’ attempted “citizen’s arrest.”

The second district attorney, George Barnhill, recused himself only after Arbery’s family, citing conflict of interest, demanded the case be assigned to someone else. Before his recusal, Barnhill had made the decision not to prosecute the McMichaels or the man who video-recorded the shooting, William Bryan.

In a widely publicized letter, Barnhill outlined the reasons he didn’t think any of the three men should be arrested for Arbery’s homicide. Barnhill cited laws pertaining to citizen’s arrest, open carry, self-defense, Georgia’s “no duty to retreat” statutes, and the defenders’ “reasonable belief” about an impending felony.

With prosecutors like that, who needs defense attorneys?

In Barnhill’s defense, prosecutors are trained to file charges only for cases they believe they can win in court. It’s an in-depth legal calculus necessitating evidence. (I’m not a lawyer, but I’m married to a former prosecutor.)

After two months, but within only two days of receiving the case, the Georgia Bureau of Investigation calculated differently and arrested Arbery’s attackers.

Before GBI took the case, however, Stand Your Ground had clicked into place, like a lens in an optometrist’s phoropter, zooming in on the potential defenses of killers while blurring evidence that could speak on behalf of the victim.

This farsighted analysis also overlooked a critical factor, one meant for jurors to decide: are the killers telling the truth?

Whether the McMicheals’ “perceived a threat” and whether their beliefs and actions were “reasonable” also seem like questions for a jury to answer, in this non-lawyer’s opinion.

Assume Arbery’s killers were telling the truth. Assume—though there’s no evidence of it—that Arbery was committing a felony. Can the US Constitution withstand how Stand Your Ground’s matrix of “perceptions and beliefs” eclipses a young man’s right to live?

***

There is a newspaper photo from the 1980s, featuring my father bringing a suspect to jail. The perpetrator in the photo, escorted by Dad and his partner, was accused of pistol whipping a police officer to the point of broken bones.

I asked him why he was smiling in the picture. He told me it was because they had brought in the suspect unharmed.

A white policeman who graduated the academy in the 1960s, Dad joined the force about when Miranda v. Arizona began to change the manner in which police did business. He explained to me bringing in suspects unharmed—particularly in cases involving injured police officers—had not always been a top priority.

From the perspective of black family members who have survived a loved one’s police victimization, it still isn’t. Bad cops exist.

Good ones do, too.

Suspects have rights, my father taught me, and the challenge was to protect those rights so the system—the criminal justice process—could work. He acknowledged the system wasn’t perfect, but he insisted it was better than anything else the world had yet tried.

He abhorred vigilantism, aka “street justice.”

While my father is not here to shake his head, pause before speaking—as he always did—and then judiciously explain what he might have done differently in the same situation, I have no doubt: he would not have approved of the McMichaels’ actions.

Instead of acting like police, if they were concerned about a burglary, they should have called the police.

***

SYG repealed centuries of common law and a millennium of common sense.

In Stand-Your-Ground states, lawmakers have removed the “duty to retreat” from the laws of self-defense, ostensibly deputizing every cop-wannabe in the land. The streets of Florida and Georgia, as a result, belong to any armed person who would claim them as his “castle.”

George Zimmerman. Michael Dunn. Gregory and Travis McMichael.

Dunn failed in his attempt to get away with murder against former State Attorney Angela Corey’s office. Though it took two juries to accomplish it, as the first one was split on the murder charge, the State Attorney in Jacksonville was a quick study. After Zimmerman, her office wasn’t about to let Dunn get away. He’s now serving life in prison for the first degree murder of Jordan Davis.

Citizen patrollers have now imbued themselves with the once-reserved power to police, thanks to SYG–as if factually fraught police use-of-force scenarios weren’t enough for society to contend with.

The laws of self-defense sufficed, before 2005, for force-users in public who were unable to retreat. The Castle Doctrine, as old as common law itself, has never required any defender to retreat from his own home.

Ahmaud Arbery, Jordan Davis, and Trayvon Martin would all be alive today if overzealous, unbadged, gun-toting white men had not felt empowered by the police authority Stand Your Ground purports to confer.

That ought to offend all good cops who take seriously their distinct position of public trust, their professionalism, their training, and their oath to uphold the US Constitution.

Instead, SYG licenses Wild-West style vigilantism. To this cop’s daughter, that’s untenable.

This opinion column is dedicated to the beloved memories of Ahmaud Arbery, Trayvon Martin, and Jordan Davis. I pray for your families, for those who uphold and enforce the US Constitution, for justice, and for the abomination that is “Stand Your Ground” to be forever stricken from our law.