Like most people I was unaware of this case prior to this week. I didn't comment on it for a while due to a number of things:
1) I know about as much about this case as most people: not much. And so any comment I would have would be woefully uninformed.
2) It's election season and there are people out there with an interest in inflaming the emotions of black people for political gain. Hence when black people die in say Chicago at 50 a clip on days in the summer, there's not much more than "that's what niggas do", but if some random white man does something, it's a return to Jim Crow.
3) It is in fact notable that a black man was shot and killed by a white man insofar as it is a rare event when compared to the other way around. Black people in America kill far more white people than the other way around. Sometimes with clear racial animus. Not much gets said about it. Why? Generally there's an attitude that white folks get what karma is coming to them so it's not a thing. I don't know about you but I don't think that various racial groups enacting revenge or lynch fantasies against other groups over past misdeeds is a good thing in the long run. But that's me. But let's get to the subject at hand.
When the story hit my radar the story was that Ahmaud was taking his regular run through a neighborhood I assume he either lived in or close to when he was set upon by two white men who thought he was a burglar. They then shot him for no reason and that was murder.
I learned an extremely hard lesson when I was covering the Sean Bell shooting in NYC. It's not what you think you know. It's what you can prove in a court of law. If you want to charge someone with murder then you have to prove criminal intent, referred to an mens rea. If you cannot prove criminal intent then you cannot get a murder conviction. The Sean Bell case should have been one of negligent homicide. Same for Zimmerman. In a negligent homicide case you only need to show that the person acted negligently, That is they should have realized that their actions could
reasonably lead to a death of a person and acted anyway. In my opinion, based on what I've seen thus far the case involving Ahmaud can only proceed as a negligence case rather than murder. Of course new evidence [or old] may change things.
This
article has the video. And here is the Tweet with it:
https://twitter.com/i/status/1257740136168722434
Now a few comments on what I see.
1) As a runner I know it is common and safe practice to run on the side of the road opposed to traffic so you can see what's happening ahead in case a car veers in your direction. We see Ahmaud on the left side of the road. What we don't see are any water bottles or the like. This is important because most people can go about an hour without needing to carry water or liquids before getting dehydrated. For a lot of people that translates to between 6 and 8 miles. So this means that Ahmaud must have been close to his point of origins.
Why is this important? Well if Ahmaud is a regular runner with a regular route then the people along his route would be familiar with his face. Even if they don't know him personally, they would know the black guy who runs through the neighborhood every so and so time. As a runner the people in my neighborhood know I run. The people in neighborhoods I run through "know" me as well. Some wave. Some cross the street (I know the deal). Southern people are generally more social than northerners so I suspect that in Ga. such mannerisms would be more prevalent than where I am located. The reason I bring this up is that it would undercut the shooter's story if Ahmaud was known to run through the neighborhood. On the flip side if Ahmaud was a new face, then the idea that he was "out of place" supports the shooter's story. I don't know which is the case, I only know that this will be a factor in the "beyond reasonable doubt" argument the state will have to provide to a jury.
In the video we see Ahmaud go from the far left of the road to the far right of the road and around the truck that was driven by the shooter. I thought that to be very odd. First, we don't know when or why Ahmaud made that decision as the cameraman lost sight of the situation. In Ahmaud's defense we could presume that the shooter was out of his vehicle and pointing a gun at Ahmaud. Ahmaud seeing the gun tried to use the truck as cover.
The problem with this scenario is the man at the back of the truck. The report says that he is also armed. Did Ahmaud not see him? Clearly if two armed men have locked on you, evading one by going closer to the other doesn't make sense.
Perhaps this was a case of very poor defensive decision making a-la Trayvon Martin. To summarize, Trayvon's fatal mistake when he took on Zimmerman was that he failed to control Zimmerman's hands. This allowed Zimmerman to get to his weapon and shoot it. In any conflict with an armed attacker, IF you are going to take on the armed attacker while empty handed you MUST control the hand and arm with the weapon. Or if the weapon has not been drawn, you must prevent the weapon from being drawn by pinning it or otherwise keeping it out of reach.
It is entirely possible that in the portion of the video that we do not see, the shooter is menacing Ahmaud with his long gun and Ahmaud panicked and tried to put an object (the truck) between him and the gun man. However; what happens next is where we get the difference between murder, negligent homicide and self-defense.
When Ahmaud re-appears from in front of the truck we can see him grabbing at the gun. People, DO NOT DO THIS. Once someone has a gun on you, you comply and
wait your turn. While its always a bad idea to allow yourself to be taken to a secondary crime scene, how you resist that is important. That said, without any doubt in my mind, the lawyer(s) for the shooter is going to say that Ahmaud was the one doing the threatening here. I know this is going to be hard for some to understand but that video can be seen by a competent jury as Ahmaud going after the shooter and the shooter taking the two shots in self-defense to an attack that is clearly on video.
How?
Georgia
law allows for citizen arrests:
O.C.G.A. 17-4-60 (2010)
17-4-60. Grounds for arrest
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.
By raising the 'recent burglaries" the shooter makes a claim of citizen's arrest. I think this claim is weak
under the law since like Zimmerman's claim, there was no immediate evidence of law breaking. There is no claim or evidence that Ahmaud had committed a crime right there and then. So that part is not in effect. What does "within his immediate knowledge" mean? Does it mean, I saw a suspect two days ago and I see him again so I can arrest him? I don't know. If it does then the law is in the shooter's favor if not it is in Ahmaud's favour.
There is a twist here as well. In this Washington Post article we find:
McMichael, 64, called his son, Travis McMichael, 34, and they armed themselves with a handgun and shotgun, respectively, Gregory McMichael told police. They chased Arbery in a truck, according to the report, and Gregory McMichael told police that he shouted to Arbery, “Stop, stop, we want to talk to you,” before, according to their statements, they pulled up beside him in their truck. The report suggests a third person may also have been involved in the pursuit.
This quote is misleading because
the police report has the following:
If it is the case that the shooter had thrice attempted to block Ahmaud prior to speaking to him, then that changes the situation dramatically. It is one thing for someone to simply pull up next to someone and ask a question. It is an entirely different matter when one attempts to cut off a runner. Three times no less.
Another problem I have here is that unless Ahmuad thought he could outrun a motor vehicle, what was the point of simply changing directions? No one outruns a vehicle. He had to know that. I do understand running into the woods. I do understand running between houses. I do not understand running up or down an empty street.
Next we deal with another legal issue, Stand your ground. Below is a screenshot of the relevant law:
If the shooter thought he was clear under citizen's arrest laws to pursue someone he thought had committed a felony (with due consideration of whether that felony had to have happened "right then and there") and his initial contact was non-hostile, then the GA stand your ground law probably takes effect.
If the shooter believes he has a suspect of a felony and goes after him, asks to speak with him and during that conflict a struggle ensues that was not initiated by the shooter and the shooter kills Ahmaud, who he believes to be a felon attempting to get away, then it's going to be next to impossible to convict on a murder charge.
However; if it is shown that the shooter had for example brandished his gun when asking to speak wot Ahmaud" then the defense argument wings into Ahmaud's favor. In that scenario Ahmaud believes he's being threatened with deadly force and possible kidnap to a secondary crime scene. The brandishing of the weapon becomes a deadly threat under law to which Ahmaud would have been totally within his rights to defend against, including deadly force and the shooter in indeed criminally liable for the homicide as negligent homicide at the minimum
All of the intricacies of how citizen arrests and stand your ground laws work are going to be in play and they will not be an easy thing to untangle for a jury (petit no grand).
Lastly I want to discuss the situation from a strictly self-defense position. I'm not blaming the victim here but there are things to be learned from this encounter:
1) If a person gets the drop on you with a firearm you wait your turn. Gun disarms on TV rarely go that well in real life. Most people do not have the empty handed skills to effectively defend against an armed attacker. Compliance can buy you time and time buys you options.
2) De-escalate the situation. Don't let your ego write a check for a bullet to the chest. If someone asks to speak to you while you're on your run. Slow down, pause the music and say "hey how may I help you?" Keep your distance so you can't be grabbed up easily but being friendly can pay large dividends.
Say these guys come out of pocket on some "There have been some robberies and we've seen you running around here". Yeah, that's offensive. This is when you start dialing 911 and recording video. You know what's coming next. The 911 call establishes your innocence. The video establishes evidence. If you are killed, these two things convict your killer rather than hoping some camera footage shows up later.
