By Rich McKay and Jonathan Allen
(Reuters) – A pivotal defense argument of the three white men on trial in Georgia for killing Ahmaud Arbery, a Black jogger, is that they were trying to make a citizen's arrest under a Civil War-era law that was later repealed amid an uproar over the shooting.
When the fatal encounter occurred on Feb. 23, 2020, it was legal in Georgia for people to arrest someone where they had "reasonable and probable grounds of suspicion" that the person had just committed a felony. Outcry over the killing led to lawmakers revoking the statute in May.
Legal observers say prosecutors will seek to convince the jury that there was no felony over which to arrest Arbery, 25, and that the three men lacked the "reasonable and probable suspicion" required under the old citizen's arrest law. The trial is in the second week of jury selection.
Before Arbery's killing, the law had been largely unchanged since it was codified in 1863, when Georgia was part of the slaveholding Southern Confederacy during the U.S. Civil War.
Most U.S. states have codified some form of a law allowing citizen's arrests. The American Civil Liberties Union and others that successfully sought to repeal the law said the state's statute was originally passed to enable the capture of escaped slaves.
Chris Slobogin, a law professor at Tennessee's Vanderbilt University, said citizen's arrest laws put dangerous powers in untrained hands.
"Things can get out of control quickly," he said.
Travis McMichael, 35, his father, Gregory McMichael, 65, and their neighbor William "Roddie" Bryan, 52, say they suspected Arbery was a burglar and chased him in two pickup trucks as he ran down a street in mostly white Satilla Shores, a suburb of the small coastal city of Brunswick.
Just before he was cornered and shot to death, Arbery had entered an unoccupied property where a house was under construction. The owner of the property has said nothing was taken and that Arbery, who was on a Sunday afternoon jog, probably just stopped there for a drink of water.
"Citizen's arrest is a big part of our case, a big part," Kevin Gough, a lawyer for Bryan, said in an interview earlier this month before the judge presiding over the murder trial in Glynn County Superior Court issued a partial gag order.
"They changed the law, but changing the law doesn't affect us. It doesn't change what was the law of the land at the time."
Arbery's family believes, however, that the three men were suspicious of Arbery simply because he was Black. In a statement made to investigators, Bryan said the younger McMichael cursed Arbery, using a racial slur while standing over the body.
Ira Robbins, a law professor at American University in Washington, wrote in an academic paper that many states' citizen's arrest laws are broad. In California, for example, someone can make an arrest for a felony if the person has probable cause to believe it was committed.
"While recruiting citizens to aid in eradicating crime is a noble idea," Robbins wrote, strict safeguards are needed to prevent the law being abused.
New York state has the strictest law, holding residents liable for false arrest if no crime was committed, even if they had reasonable belief, "leaving no room for mistakes," Robbins wrote.
In Georgia, the elected county prosecutor who first looked at the Arbery case accepted the citizen's arrest rationale offered by the three white men and concluded they should not be arrested, according to Glynn County police.
That decision drew outrage after May 5, when a cellphone video recorded by Bryan showing the men chasing and killing Arbery was published by a local news outlet and quickly spread online.
After the Georgia Bureau of Investigation took over the case from the police, the men were quickly arrested and charged with crimes including false imprisonment, aggravated assault and murder, which carries a maximum sentence of life in prison.
In repealing the law, Georgia Governor Brian Kemp said Arbery was "the victim of vigilante-style violence that has no place in Georgia," and that the statute was "ripe for abuse."
The ACLU's Georgia chapter said the old law was an example of systemic racism and empowered mobs that lynched Black people in more than 500 recorded cases in Georgia between 1882 and 1968.
A new, narrower law still allows for private citizens to detain people in a few limited circumstances, such as a shopkeeper who catches someone shoplifting.
(Reporting by Rich McKay and Jonathan Allen; Editing by Ross Colvin and Peter Cooney)
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