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Ahmaud Arbery: Video Maker Charged With Felony Murder

Ahmaud Arbery: Video Maker Charged With Felony Murder

Felony murder charge predicated on criminal attempted false imprisonment appears to have been tortuously constructed.

https://www.youtube.com/watch?v=fIve50vSeLQ&bpctr=1589762735

Hey folks,

The man who filmed the attack by Ahmaud Arbery on Travis McMichael, William “Roddy” Bryan, has been charged by the Georgia Bureau of Investigation (GBI) with felony murder predicated on criminal attempted false imprisonment, according to various news reports.

If that sounds like a mouthful of a charge, that’s because it appears to have been tortuously constructed. Indeed, I cannot find any record in Georgia legal history, searched via LEXIS, of any case involving a charge of attempted false imprisonment, much less a case of felony murder predicated on attempted false imprisonment.

That said, attempted false imprisonment is found in the legal records of other states, including California, Missouri, Wyoming, and others, so it’s not like it’s an entirely fabricated charge—but I can find no record of it being previously used in Georgia. Also, it’s unclear to me to what extent felony false imprisonment is an appropriate predicate crime for felony murder, again I find no record of this being done in Georgia before, but it is at least discussed in the appellate records of other states.  I’ll come back to this point in a few moments.

One interpretation of this back-bending, apparent first-in-Georgia-legal-history, effort to charge Bryan with felony murder predicated on attempted false imprisonment is that the authorities have simply chosen to completely bend the knee to the outrage mob orchestrated by Benjamin Crump, Al Sharpton R. Lee Merritt, et al., and their demands to arrest and charge with murder everyone having anything whatever to do with Arbery’s death.

One might also consider the expansion of these felony murder charges to Bryan on this basis to be a kind of Public Service Announcement to Georgia residents generally, to the effect of:  We don’t care what Georgia citizens arrest statute (§17-4-60) may permit, if you pursue a black suspect and that suspect dies in the course of that pursuit, even if as a result of his own conduct, and no matter what your claimed legal justification or the legal merits, we will charge you with murder and put you at risk of spending the rest of your life in prison, in the worst case, and certainly compel you to expend vast sums of money and reputation in order to avoid conviction, in the best case.

As always, of course, we seek to base our legal analysis on actual law, so let’s take a look at the relevant laws applicable to this felony murder charge against Bryan.

First let’s consider Georgia’s false imprisonment law, §16-5-41, which reads in relevant part:

(a) A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.

(b) A person convicted of the offense of false imprisonment shall be punished by imprisonment for not less than one nor more than ten years.

Of course, there was no actual false imprisonment in this case, so Bryan is instead charged with a criminal attempt at false imprisonment.  Georgia’s criminal attempt law, §16-4-1, reads in its entirety:

A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.

In terms of the possible sentence for attempted false imprisonment, it is set at no more than one-half of the possible sentence for an actual false imprisonment, which works out to a maximum of 5 years on the attempt charge, per §16-4-6. Penalties for criminal attempt.

That said, the attempted false imprisonment is being used as the predicate for felony murder, and the penalty for felony murder, per §16-5-1, is punishable by life in prison, life in prison without possibility of parole, or even execution.

It’s also worth asking what evidentiary basis exists for this charge of attempted false imprisonment, meaning that Bryan intentionally attempted to arrest, confine or detain Ahmaud Arbery without legal justification.

In the initial police report generated after Arbery’s death (embedded below) Greg McMichaels is said to have told the officer that “[Bryan] attempted to block [Arbery] which was unsuccessful.”  That is, of course, not actually evidence of an intent on Bryan’s part to block Arbery, but merely evidence of McMichaels interpretation of Bryan’s intent.

In any case, “blocking” would seem to be a different matter than “arresting,” “confining,” or “detaining” someone, particularly in the open area in which Arbery was running.

Further, it must also be noted that false imprisonment, or more accurately in this case attempted false imprisonment, occurs only when the arrest, confinement, or detention is without legal authority—but that legal authority might well be provided by §17-4-60. Grounds for arrest, which provides in its entirety that:

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.

I haven’t time today to thoroughly review the actual evidence available on Bryan’s conduct that would support either the charge of attempted false imprisonment, on the one hand, or the justification of citizens arrest, on the other, but I expect folks in the comments will jump in to link such evidence as exists, which I’ll review over the weekend for further analysis.

It’s also unclear if the law of attempt is appropriate under the facts of this case.  Attempt is a well-established area of the law, and generally has two elements:  one is an intent to commit an unlawful act, and the other is an overt act in furtherance of that underlying unlawful act.

An example would be some who breaks a car window in order to steal property inside the vehicle, who gets frightened away before the theft can be consummated.   He had the intent to commit the crime of theft, and the breaking of the car window was an overt act in furtherance of that underlying crime of theft, so we have attempted theft.

That said, it is normally the case that the overt act be something that is itself unlawful.  I’ve done a quick search for examples of criminal attempts in which the overt act was itself lawful, and I’m difficulty finding any.  If it is required that the overt act necessary for attempt be itself unlawful, Bryan’s following (normally not unlawful) or “blocking” (if true, but also normally not unlawful) of Ahmed would need to have been done for unlawful purpose in order for the attempt charge to stick.

Finally, it’s also unclear if the doctrine of felony murder is properly applied to an underlying felony of attempted false imprisonment.  Although not stated in the felony murder statute, and I haven’t had time to do a thorough review on this issue of Georgia case law, the doctrine of felony murder typically requires that the underlying felony have a reasonably foreseeable danger to life.  That is, not just any felony will do.

To illustrate this point, under Georgia §16-9-20. Deposit account fraud the passing of a bad check in excess of $1,500 is a felony.  If that check is passed to a recipient who has a fatal anaphylactic shock reaction the ink used in printing the shock, we technically meet the literal conditions of Georgia’s felony murder statutory language under §16-5-1:  “(c) A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.”

Such a death would not typically be considered to be a reasonably foreseeable risk of passing a bad check, however, and thus the felony passing of a bad check would not typically be an appropriate underlying crime for a felony murder charge.

It is, of course, much easier to imagine an attempt at an arrest requiring the use of physical force, and for that physical force to escalate to a deadly force level, and for death to occur as a result—but it’s not at all as clearly foreseeable as a death that occurs in the course of, say, an armed robbery.  This is particular the case if the person seeking to make the arrest is accompanying men he knows to be armed.  It is unclear to me whether Bryan was aware that the McMichaels were armed during his pursuit and filming of Arbery, however.

In any case, that’s all I have on this matter for the moment, so until next time, remember:

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict!

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC
Platinum Protection Program

P.S. Here’s that initial police report immediately following Arbery’s death:

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Comments

I had a feeling the prosecution was going to nifong the McMichaels. Wrapping up anyone and everyone closely associated with them or the case is a clear indication of that. This is the model the mueller team followed. What’s next, early morning SWAT team raids with the local TV news crews coincidentally standing by?

Wut? Branca’s post has been up for 15 minutes and the new crop of race-agit-trolls haven’t arrived yet?

    objection in reply to Paul. | May 23, 2020 at 12:37 pm

    Mr. Branca, you know you have arrived when your writings are targeted by organized troll farms. That means you are known and you have an impact. Congratulations.

      Tom Servo in reply to objection. | May 23, 2020 at 3:54 pm

      “Although not stated in the felony murder statute, and I haven’t had time to do a thorough review on this issue of Georgia case law, the doctrine of felony murder typically requires that the underlying felony have a reasonably foreseeable danger to life. That is, not just any felony will do.”

      Aggravated Assault, aka Assault with a Deadly Weapon, which is what I believe the McMichaels are charged with, as well as Attempted False Imprisonment, aided by the use of a Deadly Weapon (the shotgun), both clearly involve a reasonably forseeable danger to life. The instant the younger McMichael stepped out of the cab holding that shotgun, that bridge was crossed. The instant Arbery was shot (doesn’t matter how), the bridge to Felony Murder was crossed.

      I say again, this is one of the most slam dunk cases for conviction I’ve ever seen. Every element necessary for the case is there in that one video. Now, the icing on the cake is that Bryant is going to be pressured to take a deal to turn State’s Evidence, and send the McMichael’s down the river for a long, long, time to come.

        The post is about Bryan, not the McMichaels, so the aggravated assault charge made against the McMichaels and not against Bryan would not be relevant to a felony murder charge against Bryan.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

          Tom Servo in reply to Andrew Branca. | May 24, 2020 at 1:30 am

          I do agree; and I believe the entire point of his charge against Bryan is to frighten him into turning State’s Evidence to save himself and sell out the McMichael’s. From the few public statements by Bryan’s attorney, I think that is very likely to work. I’m not saying that’s necessarily a good thing, but especially after this, I don’t see any way out for the McMichaels, since I believe Bryan will testify against them now.

Racial racketeers typically take umbrage on cases they know are losers. This methodology allows for greater public outrage.

It would seem here that Bryan, even if he attempted to block Arbrey, dissociated himself from further attempts and disengaged. He was merely the videographer.

    practicalconservative in reply to dystopia. | May 23, 2020 at 12:22 pm

    Yes, if they lose the case they get to further stoke public outrage. In the event the win, there is that big civil suit payday.

    I do not believe for a moment Arbrey was a “jogger”.

      It doesn’t matter what Arbery was, it doesn’t matter if everything everyone has said about him is absolutely true – this is still Felony Murder on the part of the McMichael’s, because they had not the right to brandish a weapon (the shotgun) while they attempted to detain with no legal authorization.

      Here’s how harsh that Felony Murder statute is: suppose Arbery had charged the younger McMichael, succeeded in grabbing the shotgun, and the younger McMichael was killed in the struggle? Then the Police get called to the scene. In that case, Arbery is the one who has the claim to self defense, because the McMichael’s initiated the confrontation by following him, and the elder McMichael is STILL liable for the Felony Murder of his son, because HIS felony set in motion the chain of events leading to the death.

      Felony Murder is a harsh, harsh law.

        I’ve seen zero evidence of brandishing, at least prior to Arbery’s attack on Travis McMichaels.

        If you have such evidence feel free to share it with us.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

          Tom Servo in reply to Andrew Branca. | May 24, 2020 at 1:34 am

          ???? It’s right there, in the video. The younger McMichael steps out of the truck, holding his shotgun with both hands. In a confrontation like this, that easily satisfies the brandishing requirement. You don’t have to aim a gun to brandish, you just have to present it in a manner that could reasonably be perceived to be threatening. Somebody chases me and then walks up to me holding a shotgun, it’s very reasonable for me to feel threatened.

        Barry Soetoro in reply to Tom Servo. | May 24, 2020 at 8:22 am

        I can’t find a GA statute on brandishing, but it is illegal to point a firearm at someone without lawful cause. Travis McM is nowhere seen to be pointing his shotgun at Ahmaud A until after being feloniously attacked by the latter.

    JusticeDelivered in reply to dystopia. | May 24, 2020 at 11:12 pm

    The video grafter who captured a known criminal’s assault and attempt to take a gun. How dare he do such a dastardly thing.

Has the concept “felony murder” ever been contested in court? It is a bit excessive to charge murder when no action of the defendant was the act that caused the death. A case in Maryland where a police car was two miles behind the suspect in hot pursuit when the officer lost control of the vehicle and dies in the crash. the chasee was charged with felony murder, which seems a bit ridiculous as the death was a result of the victim’s negligence, not any action of the defendant.

    sequester in reply to MarkS. | May 23, 2020 at 12:31 pm

    I’ve seen felony murder charged in cases where the victim died from Medical Malpractice. The Courts take the view that if death is a foreseeable consequence of the underlying crime then any death wit a nexus to the crime is a Felony Murder.

    Mac45 in reply to MarkS. | May 23, 2020 at 1:05 pm

    Felony murder has been challenged repeatedly in courts, as it charges a person, who did not commit the immediate act which caused the death of another with that death. I has been repeatedly upheld. The usual conditions for the application of felony murder are that a person has to die from a specific act, committed during the commission of a felony crime, which was likely to lead to the death of another and which results in such a death. And, the person so charged has to be a knowing participant in the felonious criminal act itself. This is the old situation where the get-away driver in a bank robbery is charged with felony murder after another participant in the bank robbery kills someone.

    freddy33 in reply to MarkS. | May 23, 2020 at 1:10 pm

    The US is one of the few countries with the felony murder rule (and then only 46 states). It started in England and has been abolished there along with moist countries that had it.

    There are eighth amendment considerations which look like they will come into play in this case.

    Tom Servo in reply to MarkS. | May 23, 2020 at 4:05 pm

    In Texas and other Southern States, Felony Murder has a long, long history. It goes back to English Common Law, I believe.

    Typical Felony Murder Case – 2 accomplices go in to rob a store. A policeman shows up, and shoots one of accomplices to death, while capturing the other. The policeman, of course, is justified. The accomplice, even if he was unarmed – even if he was sitting out in the car at the time the shooting – will now be charged with Felony Murder, for the death of his accomplice. (who was actually shot by the policeman)

    You see why there is no “intent” necessary for this crime, except for the intent to commit the Felony which started the chain of events rolling?

      MarkS in reply to Tom Servo. | May 23, 2020 at 6:06 pm

      If I’m on the jury, before I convict a person of felony or any other type of murder, the prosecution must first convince me that a murder has taken place, and a justifiable police shooting isn’t murder unless the cop is a codefendant

        DaveGinOly in reply to MarkS. | May 23, 2020 at 8:19 pm

        In Tom’s scenario, the getaway driver “gets his buddy killed” by facilitating the felony.

      MarkSmith in reply to Tom Servo. | May 23, 2020 at 10:08 pm

      I am not a lawyer but I did stay at a Holiday Inn Express last night.

      Yea, Tom, that is my understanding too. I don’t think it is a slam dunk, though. I think they have over charged them so they will not be convicted and get off.

      I am guessing McMichaels brother and Bryant will have a hefty insurance payout to Arbey family. Depending on what is underwritten, I am guessing they get 1 M from each party. If the police are somehow connected, there is an extra couple of $$. Hey, if the MicMichaels are part of an HOA, they might be able to get another M out of it, like they did with the Zimmerman HOA.

texansamurai | May 23, 2020 at 12:48 pm

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.
____________________________________________________________

then goes on to reference a felony as justification–didn’t each of the defendants witness arbery’s tresspass of the vacant house? must it be a felony that is witnessed or would tresspassing be sufficient justification for citizen’s arrest?

the statute seems a bit vague on what’s considered sufficient ” justification ” for lawful citizen’s arrest

    The Packetman in reply to texansamurai. | May 23, 2020 at 1:45 pm

    The statue’s not vague at all. The first sentence tells what you need (crime committed in your presence or immediate knowlege) for any crime in order to attempt a citizens’ arrest. The next sentence tells you that if the crime is a felony AND the suspect is fleeing or attempting to escape you only need reasonable suspicion … I’m not even a lawyer.

    Read the police report: https://www.scribd.com/document/460042566/Ahmaud-Arbery-Police-Report

    McMichael tells the officer:

    1. There have been multiple break-ins
    2. A suspect has been recorded by surveillance cameras
    3. He has seen the suspect before at night in the neighborhood
    4. The day of the shooting he saw the same suspect (Arbery) running down the street

    Given that McMichael is a former police officer, I’m pretty sure he knew that the suspect had committed a felony, and then saw that suspect fleeing (running) or escaping. Having watched all the videos Andrew has made and posted on Facebook, plus a 3-hour marathon with Rekieta Law on Youtube, not to mention other well-known attorneys who agree with him. I’m inclined to believe that the case as charged against the McMichaels and Bryan is weak and will only get worse.

    I am, however, disappointed (but not surprised) that our governor is allowing this shit show to continue.

      James B. Shearer in reply to The Packetman. | May 23, 2020 at 3:02 pm

      “Given that McMichael is a former police officer, I’m pretty sure he knew that the suspect had committed a felony,…”

      What was the felony?

        Tom Servo in reply to James B. Shearer. | May 23, 2020 at 5:38 pm

        How can he have “known” unless he witnessed it? And McMichael has already stated that he was called by a neighbor after the event. He has no claim under Georgia’s Citizen Arrest Statutes, by his own admission. That’s why he, and his son, and Bryant, are in so much trouble now. He got sloppy with what he thought the laws were, and my guess is that at the end of this, he’ll get around 15 – 20 years in the State Pen.

          Absolute knowledge is not required in order to be justified in making a citizens arrest under Georgia law.

          It’s only a two sentence statute, Tom, it’s not that hard.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          MarkSmith in reply to Tom Servo. | May 23, 2020 at 10:25 pm

          I read the police report and it implies Citizen Arrest, but I really do not see it called out.

          Second, where did Arbery come from? If they can not connect him with previous thief’s, they are going to have issues beyond just seeing him on the video.

          Third, who is Larry English? He is listed as a victim?

          James B. Shearer in reply to Tom Servo. | May 23, 2020 at 11:05 pm

          “Third, who is Larry English? He is listed as a victim?”

          Larry English is the guy who owns the house under construction.

        Char Char Binks in reply to James B. Shearer. | May 24, 2020 at 10:24 pm

        Burglary

Welcome again, Mr. Branca! With respect to Mr. Brodie Bryan, we have circled back to the GA self defense law, have we not?

Anyway, it looks like the Republican political leadership in GA is playing to the mob with Bryan’s arrest. As you said, this charge is weak sauce. Having said that, it does make sense in a a strategic legal way to arrest Bryan in order to force him to roll over on the McMichaels to fill in some of the blanks necessary to convict them of felony murder.

Couple of issues I foresee: Will this be one, two or three trials? The McMichaels ethically need a different lawyer (not from the same firm) because their interests are conflicted. For reference on that score, see the classic legal movie “My Cousin Vinnie.” (JK)

Andrew, I’ve linked your blog to my discussion groups on FB. It’s about all I can do. And thanks so much for your time here. It makes troll bashing such a joy for me.

    Tom Servo in reply to Redneck Law. | May 23, 2020 at 5:43 pm

    Since the McMichael’s initiated the confrontation when they chased him with their truck, the only person who concievably could have had a claim of Self Defense under Georgia Law was Arbery.

    It should be obvious that the prime reason that Bryant is being charged is to get him to crack and turn State’s Evidence against the McMichael’s, which I’m sure he’ll do.

      “Since the McMichael’s initiated the confrontation when they chased him with their truck, the only person who concievably could have had a claim of Self Defense under Georgia Law was Arbery.”

      Following someone is not “initiating a confrontation,” especially if done for lawful purpose. Indeed, the privilege to follow is inherent to Georgia’s citizens arrest law re: a fleeing felon. You can’t arrest a fleeing felon you can’t pursue.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

      Barry Soetoro in reply to Tom Servo. | May 24, 2020 at 8:36 am

      TS: You are recycling an irrelevant argument used against George Zimmerman, than just getting out of his vehicle and trying to see where Trayvon went was somehow an act of violence that empowered Trayvon to attack George with lethal force.

        I don’t believe there is any valid comparison between Zimmerman’s case and this McMichaels matter. 1. Zimmerman was carrying concealed so Trayvon could not know that Zimmerman was armed. 2. Zimmerman was part of the official neighborhood watch and was supposed to keep an eye on what was happening in the neighborhood. 3. Zimmerman did not try to speak to or approach Trayvon. 4. Trayvon approached Zimmerman. 5. Trayvon had no reason to believe Zimmerman was a threat to him.

        McMichaels on the other hand: 1. Were openly displaying firearms and were trying to impede Arbery’s movements to some extent. 2. It was perfectly reasonable for Arbery to feel threatened by the McMichaels.

        These are completely different situations.

Dang. I meant circle back to GA citizens arrest law.

Pillage Idiot | May 23, 2020 at 12:53 pm

When BLM blocks I20 highway in Atlanta during the trial and 15,000 people are “detained” by the protesters, will GBI charge each of the protesters with 15,000 counts of false imprisonment?

If the protesters each get the one-year minimum sentence, but the judge says each charge is to be served consecutively, then I think we will see a future reduction in people forcing false imprisonment on others in the state of Georgia.

    healthguyfsu in reply to Pillage Idiot. | May 23, 2020 at 2:52 pm

    The powers that be would first have to care enough to charge them with something already on the books like trespassing, public endangerment (for organizers), disturbing the peace (if they get violent), etc.

Mr. Branca better be careful or the Georgia Bureau of Investigation might decide to charge him with being an accessory after the fact.

Pillage Idiot | May 23, 2020 at 1:00 pm

texansamurai,

The trespassing laws in Georgia have multiple conditions that change the severity of the offense.

There are ways to commit “misdemeanor” trespass and ways to commit “felony” trespass.

I believe walking onto the property with a house under construction would normally be construed as a misdemeanor trespass. Obviously, things could change if the McMichaels observed additional criminal behavior.

IANAL.

    Mr. Branca has covered this. I believe he wrote that it depends on McMichaels having reasonable probable cause to believe that a felony had been committed inside the house, not actual knowledge.

      James B. Shearer in reply to Redneck Law. | May 23, 2020 at 3:00 pm

      Working against this is that apparently nothing had ever been damaged or stolen in any of the previous trespasses making it harder to reasonably suspect that something had been damaged or stolen this time (which I believe is needed to make it a criminal trespass).

        Tom Servo in reply to James B. Shearer. | May 23, 2020 at 5:45 pm

        Also, under the law it was legally impossible for McMichael, a private citizen, to obtain “Legal Probable Cause” from a single phone call from a friend.

          “Also, under the law it was legally impossible for McMichael, a private citizen, to obtain “Legal Probable Cause” from a single phone call from a friend.”

          This statement is pure nonsense, or you should provide the relevant law that demands this result.

          You seem to be shooting for the world record for incorrect legal comments to a single blog post. Good for you, everyone should have a dream.

          Also, under the law it was legally impossible for McMichael, a private citizen, to obtain “Legal Probable Cause” from a single phone call from a friend.

        Char Char Binks in reply to James B. Shearer. | May 24, 2020 at 10:31 pm

        Expensive fishing tackle was supposedly stolen from the boat Arbery is shown walking to and putting his hands on in one video. English is now denying that anything was ever stolen, of course. He’s not stupid.

Seems pretty weak to try and describe an unsuccessful attempt to block somebody’s movements, in an open area, as an “attempted” false imprisonment. There was no arrest, no confinement, no detention, and no apparent effort to commit any of those acts. The blocking attempt (if that is what it was) was unsuccessful, so there was no “substantial step” toward the commission of false imprisonment. With no underlying felony, there is no felony murder.

I don’t see any downside to the prosecution charging Bryan in order to scare him into a plea deal and cooperative testimony against the McMichaels. It helps the prosecution politically, and it scares the hell out of Bryan regardless of the weak evidence.

My initial impression of this charge(s) for Bryan:
1. This is a very large, very long reach by prosecution
2. The prosecution knows that this is unlikely to survive
3. The prosecution did this to appease the community in an attempt to show they are not leaving any possible action undone

So, in sum, the prosecution will use these charges in attempting to get a more favorable, to them, statement from Bryon. If Bryan has a halfway decent attorney this will fail.

All Bryan needs to do is be quiet. The prosecution has the burden of proving this expansive theory. Not only to a jury but also to a Judge, who isn’t likely to be willing to endorse what would be a huge expansion of the elements of the crime.

Why? Well every time in the future of GA, that an individual or group takes it upon themselves to ‘attempt to block’ travel they are now guilty of false imprisonment or attempt of same.
No way GA wants to prosecute that. No way civil rights organizations want that.

Easy example: Abortion clinic protest. Person must move around the protesters to gain entry. Have the protesters imprisoned anyone?

Example: A group of protesters block travel on Friday evening rush hour on public streets. Have the protesters imprisoned anyone? Remember, this has occurred in GA very recently. It might occur during this trial or leading up to the trial. Will those protesters also be charged under this theory? If not why not?

    James B. Shearer in reply to CommoChief. | May 23, 2020 at 2:51 pm

    “So, in sum, the prosecution will use these charges in attempting to get a more favorable, to them, statement from Bryon. If Bryan has a halfway decent attorney this will fail.”

    Bryan’s attorney had been calling Bryan the chief witness for the prosecution. So I expect Bryan is willing to deal. However the prosecution may have boxed themselves in a little by making it hard for them to offer a lenient deal after charging Bryan with murder.

      CommoChief in reply to James B. Shearer. | May 23, 2020 at 3:56 pm

      James,

      I will defer to your statement about Bryan. I am limiting myself to commentary based upon the info in the post, as I don’t have the desire to do more.

      Still, was the charge before or after that statement by Bryan attorney? If before that infers one angle if after that infers something else.

      In any event, the charge based upon the what we could fairly describe as the unsuccessful attempt to block the movement of another seems like very weak sauce. If all Arbery did to avoid this action by Bryan was move around it….how is that any different than the what folks do to move around protesters at an abortion clinic?

      This is a reach by prosecution. If successful will be opening up a Pandora’s box for future prosecution of currently lawful activity.

      Further, let’s see wait and see what Bryan says. Maybe he is going to say ‘oh Hell yeah we criminally conspired to murder Arbery by waiting for him to return and staged and choreographed every activity to create a situation in which Arbery would have no alternative but to charge in and assail a man holding a shotgun.

      I ain’t holding my breath for Bryan to say that. Neither do I think that is true nor provable beyond a reasonable doubt.

        James B. Shearer in reply to CommoChief. | May 23, 2020 at 4:23 pm

        “Still, was the charge before or after that statement by Bryan attorney? If before that infers one angle if after that infers something else.”

        The attorney made the statements before Bryan was charged in an attempt to disassociate Bryan from the McMichaels. One news story can be found here .

        I didn’t remember the quote exactly right. Bryan’s lawyer called Bryan the “star witness” for the prosecution not the “chief witness”.

        The Packetman in reply to CommoChief. | May 24, 2020 at 10:59 am

        Commo,

        It appears (from the article James linked) that Bryan’s attorney (Kevin Gough) made that statement in an effort to keep the Arbery family from pushing for charges against Bryan. As that was for naught, I’d expect that Bryan may harden up a bit. Maybe not.

scrmndemon07 | May 23, 2020 at 2:45 pm

Andrew, this seems short sighted to me. Now that Bryan is charged, he has the right against self incrimination. If he invokes that, how does the DA plan to authenticate his video?

    Tom Servo in reply to scrmndemon07. | May 23, 2020 at 5:49 pm

    He gave it to them before they charged him, and now it’s on the web. Too bad for him, that cat is out of the bag.

    He should NEVER have taken that video, or he should have destroyed that phone immediately. He’s hung them all by his foolishness.

      Besides, destroying evidence in a crime is very bad. Destroying evidence in a crime that you may be implicated in is REALLY bad. From my limited legal understanding, the prosecution can literally claim the video showed you committed the crime you’re being prosecuted for, and your destruction is proof.

    Why would they need the video? I’m sure they’ll use it if they can, but they don’t NEED it.

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC

      James B. Shearer in reply to Andrew Branca. | May 24, 2020 at 1:13 pm

      “… I’m sure they’ll use it if they can …”

      This raises a question that as a layman I don’t know the answer to. Can the prosecution get the video into evidence against the McMichaels without testimony from Bryan?

A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.

That word “substantial” would seem to be there to preclude charges based on “intent” or similar insubstantial claims. An imputed desire to “detain” someone is hardly substantial. A suspect apprehended while carrying a large hank of rope might indeed have the intent to confine someone by tying him up, and a rope could be a substantial means of doing so. But a suspect apprehended while not possessing any physical means—anything real or substantial—of doing that, well, not so much.

James B. Shearer | May 23, 2020 at 2:47 pm

The police report embedded in the post is not displaying for me however another (redacted) copy can be found here . An interesting point is on page 4 the officer says his body camera was on and the video has been uploaded.

So there is video of Gregory McMichaels (and maybe Bryan or Travis McMichaels) talking to the officer right after the incident. If one of them said something like “all we were trying to do was hold him for the police” or said anything about “citizen’s arrest” this would be quite helpful for the prosecution.

    Not sure what was wrong with my Scribd embed of the police report, but I’ve replaced the embed code with one that works. Thanks for the heads up.

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC

healthguyfsu | May 23, 2020 at 2:48 pm

The weapon of choice for this middle aged out of shape white guy to imprison Arbery? A cell phone.

Millenials would be hit hard by this as precedent if it actually weren’t a joke of an attempt.

charge Bryan with felony murder predicted on attempted false imprisonment

should that be predicated or is predicted used in a legal manner I am unaware of?
very easily could be me not aware of correct term.

fwiw I am on the fence about this whole thing, initially thought it more of an ex leo not used to being a civilian (as opposed to a racial lynching) but the charging of the videographer really struck me as odd even with the mentioned statements.

Over-charged for politics and to see if they can get plea deals. The DA is gonna bankrupt these defendants if they try and get bail, due to the seriousness of the charges, and they’re gonna have to hire VERY competent attorneys to wade into this morass. No doubt in my mind, the prosecutors are gonna try and get the video guy to say incriminating stuff about the other two… or invent a conspiracy to entrap the jogger. Huge mess. Election year. Obama has already declared this a Trayvon event…. so it’s all political race BS now.

The first element of self defense, as we learned from Professor Branca in the George Zimmerman case, is “Innocence.”

Georgia law requires that a private person may arrest someone if the offense is committed in his Presence, or within his Immediate knowledge.

“ARTICLE 4. ARREST BY PRIVATE PERSONS

§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.”

It does not appear (so far) that the defendants were present or had immediate knowledge of any crime by Arbery on the day of the killing.

For an understanding of the element of Innocence necessary for a valid self defense claim, see the following:

“Innocence

You can’t start the fight.

That’s the first element—you can’t have been the initial aggressor, and then justify your use of force as self-defense. Pretty simple, huh? What could be more obvious than that, right? You got this.

Often, however, whether you, in fact, started the confrontation can easily be a fact in dispute. Naturally, you’ll say the other guy was the initial aggressor. But that other guy—or his buddies—could say that you were. That kind of uncertainty is the “messy” part of this “simple” element.

Bottom line, if a prosecutor reviews your case and sees evidence that suggests you might have started the fight, you’ve just made yourself way more likely to be brought to trial on criminal charges, because now you look like a vulnerable target for conviction.”

https://lawofselfdefense.com/foundations-the-5-elements-of-self-defense-law/

    Like so many others, you insist on mis-reading a two-sentence statute.

    If there is reasonable suspicion that a felony has been committed and the suspect is in flight, that reasonable suspicion is sufficient to justify a citizens arrest under GA law, per the second sentence of the statute you yourself cited. There’s an evidentiary foundation in this case for a reasonable suspicion of felony burglary.

    It’s really not that complicated.

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC

      Tom Servo in reply to Andrew Branca. | May 23, 2020 at 6:11 pm

      Suppose, as a thought experiment, you and I know each other and live near each other in Georgia. I call you on the phone and say “hey I just saw this guy doing something awful! I did!!!” Are you now legally justified, based only on my phone call, in heading out, tracking that guy down, and putting a gun to his head? You’re just a private person, remember, not an officer. Suppose you get the wrong guy. When you’re arraigned for Aggravated Assault, will the Judge let you go when you say “But He Told me to Do it!!!!”

        “putting a gun to his head?”

        This is why you lack any credibility whatever.

        There’s zero evidence of this happening, or anything like it, in this case.

        You’re just making up your own facts, as well as your own law, out of whole cloth. You’re simply writing a work of fiction.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

      Andrew does “reasonable suspician” refer to the belief that a felony has been committed. OR does it refer to the belief that one is arresting the right person.

      Is it not possible those two simple sentences are meant to be read together. 1st sentence says one can only make citizens arrest if crime is committed in presence of or within immediate knowledge of the person making the arrest. The second sentence says a person who saw crime committed or has immediate knowledge of the crime being committed may only pursue and arrest the fleeing criminal if the crime was a felony and they have reasonable suspicion they are arresting the correct person.

      This way the two sentences work together. Whereas you want to make them into completely unrelated provisions. Given the history of Georgia’s citizen arrest statute being primarily intended for shop lifters and purse snatchers you might be using the wrong interpretation.

        The two sentences cannot be intended to be read together because they establish two entirely different standards.

        A “suspicion” that something happened is obviously and substantively a lesser degree of certainty than “knowledge” that something happened

        “Immediate knowledge or presence” and mere “reasonable suspicion” are therefore obviously two very different things. If I have immediate knowledge or the offense occurred in my presence, there’s no need for the much lower “reasonable suspicion” standard because I’ve already met the much higher standard of actual knowledge.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

          But you aren’t addressing whether reasonable suspicion applies to belief one is arresting the correct person as opposed to referring to one’s belief that a felony was committed.

          You’re overthinking it. What’s required is that you have a reasonable suspicion that dude X is in flight from a felony.

          That’s it.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          James B. Shearer in reply to Andrew Branca. | May 25, 2020 at 8:03 am

          Is there any Georgia case law about the meaning of the citizen’s arrest law? It doesn’t matter what we think the law means if the Georgia courts have ruled in the past that it means something different.

          FWIW I would read the sentences together so that the reasonable suspicion in the second sentence has to be based on something you witnessed or had immediate knowledge of. And attempting to escape means from the scene of the crime.

          Your reading of the statute, James, make the entire second sentence superfluous and unnecessary, and that’s not how statutory interpretation works.

          If one has immediate knowledge or presence they can arrest for any offense, per the first sentence, and if that were intended to be the only acceptable standard for making a citizens arrest under any circumstances there would be no need for the second sentence addressing the specialized case of a fleeing felon and allowing for the lesser state of knowledge of “reasonable suspicion.” If “immediate knowledge or presence” were required even in the special case of a fleeing felon, there would be no need of the second sentence at all. Yet there it is.

          It’s only a two-sentence statute, and statutes are not intended to be interpreted as if one-half of the statutory language was unnecessary and could be effectively ignored.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          James B. Shearer in reply to Andrew Branca. | May 25, 2020 at 1:09 pm

          “It’s only a two-sentence statute, and statutes are not intended to be interpreted as if one-half of the statutory language was unnecessary and could be effectively ignored.”

          I would argue my interpretation is not redundant because it allows for a lesser degree of certainty. That is if you are in the bank and witness a bank robbery you can arrest under the first sentence. If you are outside a bank and see someone run out carrying a bag of money you can arrest under the second sentence.

          But it doesn’t matter what I think, it matters what the courts of Georgia think. What does the case law say?

          “aren’t you supposed to say something like “stop, you are under arrest” ”

          Well, of course, the McMichaels would say they were NOT making an arrest at that point, they were simply asking a suspicious person a question, for which the citizens arrest requirements do not apply. Anybody is permitted to ask any other person a question, there’s no particular justification required for doing so.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

      billb in reply to Andrew Branca. | May 24, 2020 at 2:53 am

      Professor Branca, what is your understanding of the meaning of the word “immediate” in the following sentence;

      “A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.“

        My interpretation is that “immediate” is irrelevant for GA citizens arrest purposes if there’s reasonable suspicion that the fleeing suspect committed a felony.

        It’s not that complicated.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

          We shall soon see who is correct, but i still believe the courts in Georgia are going to rule that the first sentence of the GA citizen’s arrest statutes informs or provides context for the second sentence. I believe they will say that if the legislature intended the two sentences to be completely unrelated provisions the legislature would have made them separately numbered or lettered paragraphs.

          My belief is the courts will rule that pursuit of and arrest of a “fleeing felon” only applies if the fleeing and pursuit takes place immediately after the felony was committed. It can’t be a felony that was committed days or weeks prior to the pursuit.

          Since the McMichaels can’t show reasonable suspicion of a felony committed immediately prior to the pursuit the citizen’s arrest statute will not protect them. I could be wrong, we will have to see.

          I practiced law in Georgia for 17 years but I have never been a criminal lawyer. So I could certainly be wrong.

          Andrew: This thread is now quite lengthy and I apologize if you have already addressed this, but it seems that the statute would require that the McMichaels’ “reasonable and probable suspicion” be related to a suspected burglary on 23 February, not to the actual burglary of the fishing gear some weeks prior. It seems unlikely to me that the legislature intended, or the courts would interpret, the statute to authorize any private citizen to arrest anyone he suspects of a felony, no matter how far in the past, on the grounds that he is “fleeing”. Fleeing what? That annoying person pointing at you saying “I suspect you of a felony”? I’m honestly not sure what that is supposed to look like.

          My reading of the statute is that the McMichaels would need a reasonable suspicion that Arbery was in flight from a felony. One is not in flight from conduct committed weeks prior, so some event not contemporaneous would not be useful for purposes of satisfying the felony act requirement–that’s what the criminal trespass serves. So pursuit of the fleeing suspect requires that the suspect is fleeing from a just-committed offense. In this case, that’s the criminal trespass, not the prior theft.

          However, the prior theft could contribute to the suspicion that the just occurred criminal trespass was not merely a criminal trespass but also involved an intent to steal, which is what would be required to satisfy GA’s felony burglary law, if there was reason to suspect it was the same person committing the criminal trespass as who had committed the previous thefts.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          James B. Shearer in reply to Andrew Branca. | May 25, 2020 at 1:03 pm

          ” … In this case, that’s the criminal trespass, not the prior theft.”

          What made the trespass criminal trespass?

          The fact that the trespass was made without any possible rational for believing there was license to be present on the property. In other words, that it was not of the sort of trespass that could be an innocent unlawful entry. Example? Arbery was not a UPS driver accidentally delivering a package to the wrong address, and in the process accidentally committing a trespass.

          Arbery clearly was aware he had no license to be on the property.

          Or show me evidence to the contrary.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          James B. Shearer in reply to Andrew Branca. | May 25, 2020 at 10:42 pm

          “The fact that the trespass was made without any possible rational for believing there was license to be present on the property. …”

          Georgia has a criminal trespass statute that can be found here . As I read the statute it is not enough to be on the property without permission.

          Also note criminal trespass is a misdemeanor.

          Criminal trespass with an intent to steal is a felony, regardless of whether any property is stolen.

          The citizens arrest law requires a mere reasonable suspicion (a suspicion based on reason) that a felony might have occurred and the suspect is in flight.

          Do the facts in this case support such a suspicion? I would suggest they do, although reasonable people could disagree.

          Do the facts in this case suggest that the prosecution can prove BEYOND A REASONABLE DOUBT that there was no basis for reasonable suspicion? I think that’s unlikely.

          At least, not to an unbiased jury.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          James B. Shearer in reply to Andrew Branca. | May 26, 2020 at 10:59 am

          “Criminal trespass with an intent to steal is a felony, regardless of whether any property is stolen.”

          That’s not what the Georgia statue says.

          “(b) A person commits the offense of criminal trespass when he or she knowingly and without authority:

          (1) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose;”

          and

          “(d) A person who commits the offense of criminal trespass shall be guilty of a misdemeanor.”

          James B. Shearer in reply to Andrew Branca. | May 26, 2020 at 11:11 am

          “Do the facts in this case suggest that the prosecution can prove BEYOND A REASONABLE DOUBT that there was no basis for reasonable suspicion? I think that’s unlikely.”

          Is that how the burden of proof works in a citizen’s arrest case?

          Does the defense get to argue in the alternative? That is

          a) maybe they were trying to make a citizen’s arrest in which case they were allowed to detain Arbery

          or

          b) maybe they weren’t trying to make a citizen’s arrest and didn’t try to detain Arbery

          and the prosecution has to disprove both theories beyond a reasonable doubt. Or does the defense have to pick one alternative and then the prosecution just has to disprove that theory beyond a reasonable doubt?

          You’re looking in the wrong place. Criminal trespass with intent to steal is felony burglary per Georgia’s burglary statute §16-7-1. Of course you won’t find the elements of burglary in the trespass statute.

          §16-7-1. Burglary, reads in relevant part:

          (b) A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another. A person who commits the offense of burglary in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years.

          Entire statute here:

          https://lawofselfdefense.com/statute/ga-16-7-1-burglary/

          That said, you’ve exhausted my patience. Good luck.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          Does the defense get to argue in the alternative?

          Perhaps this is why the prosecution is attempting to extort testimony from Roddy Bryan, to establish that the McMichaels’ intent was indeed to effect an “arrest” rather than a “stop”. This would allow them to argue that:

          1. The McMichaels neither “witnessed” nor had “immediate knowledge” of Arbery’s criminal trespass (the misdemeanor); and

          2. While Arbery’s behavior may have been “suspicious” (the legal standard for a “stop”), it did not establish “probable cause” (the legal standard for an “arrest”) for burglary (the felony).

          I would agree with Andrew that to a fair judge and jury, this line of argument doesn’t clear the “reasonable doubt” threshold. But it may be sufficiently plausible for the biased judge and jury they are likely to get.

    Char Char Binks in reply to billb. | May 24, 2020 at 10:59 pm

    Nothing in that law says the citizen’s arrest has to be for an offense committed the day of the arrest. Seeing a suspect in a crime that someone knows of from witnessing it on a previous day, or seeing on surveillance video, is immediate knowledge.

      “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.”

      “If the offense is a felony” refers to what offense? I think the courts will rule it refers to the offense described in the first sentence. An offense that was witnessed or within the person’s immediate knowledge. Immediate in immediate knowledge refers to knowledge that is acquired immediately at the time of commission of the offense. Viewing video tapes hours or days later is NOT immediate knowledge.

      “escaping or attempting to escape”, in the context of this statute, can only happen when a person is more or less caught in the act of committing the crime. A person who walks or jogs past another person without having just committed a felony is NOT escaping or attempting to escape anything. He is merely walking or jogging.

      Again, I could be wrong but this is my opinion of what the Georgia courts will do. The Georgia courts are not going to lay down a rule of law on citizen’s arrest that authorizes private persons to investigate crimes, look for suspects, and make citizen’s arrests of those suspects days or weeks or months or years after the alleged crime was committed. Yet that would be the result if yours or Mr. Branca’s interpretation of the statute were upheld.

        It would make no sense to read the statute as “adding” the requirement of “reasonable suspicion” of the second sentence “onto” the requirement of “immediate knowledge or presence” of the first sentence.

        “Immediate knowledge” is a higher state of knowing than mere “suspicion.” If you have immediate knowledge there’s no need to “also” require a lower state of knowing of mere “suspicion.”

        Clearly “immediate knowledge or presence” provides justification for a citizens arrest generally, regardless of the nature of the underlying offense, and the “reasonable suspicion” in the second sentence provides justification under that lesser state of knowing for the special case defined in the second sentence, that of a fleeing felon.

        If the only standard that would satisfy for citizens arrest is that of “immediate knowledge or presence,” there would be no need for the second sentence at all, and statutes are not intended to be read as if 50% of the statute is irrelevant.

        It’s only a two sentence statute, and yet purportedly grown and educated adults purport to understand it only if twisted beyond any rational understanding.

        Strange, that. 🙂

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

          Char Char Binks in reply to Andrew Branca. | May 25, 2020 at 10:30 pm

          Does immediate knowledge have to be of an offense committed at that moment, or immediately previous? What if someone committed a robbery, for instance, and someone who saw that suspect on the street the next day, or two weeks later, and knew of the crime, and recognized the suspect, because he was an eyewitness, or because he saw surveillance images, made a citizen’s arrest as he attempted to flee? Doesn’t the law, as written, allow that? The offense isn’t “immediate”, but the knowledge is.

          I know there’s no evidence that anyone was trying to make a citizen’s arrest, but Bryan is charged with the attempt.

          I disagree. While the reasonable suspicion language is a bit troublesome, the two sentences are clear that the right of a private person to pursue and arrest someone only applies in the case of the commussion of a felony AND only if the perpetrator is escaping or attempting to escape. I believe you are wrong to equate escaping or attemoting to escape with fleeing felon. I belueve the Georgia coyrts will rule that escaping or attempting to escape requires that the perpetrator is caught in the act, more or less, and then tries to escape. Only in that instance is pursuit authorized and only if the crime was a felony.

          The courts will not treat the two sentences as wholly separate from each other because the legislature didn’t make them separate privusions or separately numbered paragraphs. They will also look at legislative intent and the fact that the statute was primarily intended for shoplifting and purse snatching situations.

          The Georgia courts are not going to create a citizen’s arrest law that allows private persons to pursue and arrest persons days or months after the offense was committed and to make an arrest under a LESSER standard than applies to the police (reasonable suspicuan versus probable cause).

          And we haven’t even touched the 4th and 5th amendment problem that the constitution demands probable cause to make an arrest and an arrest based on reasonable suspician may not satisfy the constitution.

          I don’t know for sure if the McMichaels will have a successful defense or not, but I believe citizen’s arrest will not be allowed to even go to the jury. If somehow it does go to the jury the instructions for it will make it impossible for the jury to find it applies.

          If i had to guess I’d say the McMichaels are toast and the videographer has a better than 50 percent chance of getting off at trial, but good chance he takes a plea deal.

          You are, of course, entitled to your incorrect opinion.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          “escaping or attempting to escape”

          That is required BEFORE a pursuit and citizens arrest is authorized.

          I would note that a person can’t escape or attempt to escape unless they have first been caught. This is an important distinction between escapin or attempting to escape and a fleeing felon. A fleeing felon can be a person who has never been caught and is fleeing to avoid being caught. Fleeing is NOT always the same meaning as escaping. The statute requires escaping which requires first having been caught. For example: Woman screams stop that man, he just stole my purse. A male turns and sees a man running away and carrying a purse. The male is authorized to chase after and arrest the escaping purse snatcher.

          A man sees person walking down the street. The man has reasonable suspicion to believe the person he sees is a known wanted felon. The man shouts at the person hey stop I want to talk to you. The person begins running away. The man is NOT authorized to pursue and arrest the fleeing felon.

          I’ve stated from the beginning I could be wrong about what I have written and that I am not a criminal lawyer. We will soon see whose opinion on these things is correct and incorrect.

Lesson learned: If you shoot a video and something goes bad, and your video might be useful to law enforcement, then go home and erase the video using some kind of permanent erasure method. Then shut up and don’t answer any questions.

More trash like trayvon martin.

The sons of obama seem to do everything they can to get themselves killed. Then people get made when the obama-sons get the assist?

James B. Shearer | May 23, 2020 at 5:23 pm

“Lesson learned: If you shoot a video and something goes bad, and your video might be useful to law enforcement, then go home and erase the video using some kind of permanent erasure method. Then shut up and don’t answer any questions.”

This requires realizing you may have crossed the line (into illegal conduct). These guys don’t appear to have understood that they were anywhere near the line. If they had they would presumably have behaved differently and stayed out of trouble.

    CommoChief in reply to James B. Shearer. | May 23, 2020 at 7:46 pm

    James,

    I am happy to stipulate that the actions by the McMichaels were not prudent. However, they do retain a presumption of innocence. The state must still prove their case beyond a reasonable doubt. I am not sure they can do so.

    Mr Bryan likewise gets a presumption of innocence. The state must prove it’s case. Likewise, not certain they can.

    Could the whole thing have been avoided had the McMichaels refrained from their actions that day? Sure. I would point out that would be equally true had Mr Arbery refrained from his actions.

    The prosecution is under considerable pressure to bring charges. They have made charges now they have to either:
    1. Go to trial and prove them beyond reasonable doubt
    2. Survive appellate review, if any
    3. Force a plea agreement, via economic pressure and the potential for a worse outcome at trial

    My guess is that they are hanging their hat on option 3. With option 1 being their fall back position.

      The Packetman in reply to CommoChief. | May 24, 2020 at 8:43 am

      “I am happy to stipulate that the actions by the McMichaels were not prudent. ”

      And this is one of the first things Andrew Branca started hammering in his many videos and analysis of this event because so many were guilty of it … don’t conflate poor judgment with unlawful action.

FELONY MURDER means you didn’t commit murder. Otherwise, they would just call it “murder.”

the doctrine of felony murder typically requires that the underlying felony have a reasonably foreseeable danger to life. That is, not just any felony will do.

However, ambitious prosecutors routinely stretch this requirement, and usually succeed at trial. Consider the case of the Elkhart 4 in Indiana.

[Full disclosure: I am NOT an attorney.]

    James B. Shearer in reply to DR. Φ. | May 23, 2020 at 8:59 pm

    “However, ambitious prosecutors routinely stretch this requirement,…”

    I don’t see the stretch in the Elkhart 4 case. This was a home invasion by 5 guys (one of whom was shot dead by the homeowner). Home invasions seem like one of the most reckless (in terms of possibly getting somebody killed) things you can do.

      Perhaps. On the other hand, if I’m reading the case correctly, it wasn’t intended to be a home invasion but a burglary, since the perpetrators thought the house was unoccupied. I agree that had one of them then attacked and killed the homeowner, then felon murder would be appropriate for the lot.

    Mac45 in reply to DR. Φ. | May 23, 2020 at 10:44 pm

    The Elkhart 4 case had two glaring deficiencies. The first was that the three defendants, who had their Felony murder convictions reversed, were never charged or convicted of a felony crime, other than felony murder. They should have been charged as principles in the initial burglary, as they all had participated in the crime, in one capacity or another and were all on scene at the time that the burglary occurred. The Court noted this deficiency, as one of the main reasons for vacating the guilty verdict. The second sticking point was the youth of the defendants. This, coupled with the fact that no evidence was presented that they intended to harm anyone, made the defendants objects of sympathy.

Dejectedhead | May 23, 2020 at 8:09 pm

If this case creates any legal precedent, they’ll have receipt checkers at CostCo thrown in jail for kidnapping every customer that attempts to leave their store.

Here is the problem with the Bryan charges. The charges against him have ti be reconciled with those lodged against the McMichaels.

This is all one incident, as it stems from the same origins and occurs in the same short time period. This is based upon the assumption of the investigators and current prosecutor that the McMichaels were attempting to perform a citizens arrest. And, there is NO evidence that such was the case. IUf Bryan is being considered as a principle in the crimes committed by the McMichaels, then he should have been charged with aggravated assault and felony murder, just as they were. Or, they should have been charged with “attempted” false imprisonment as well. Now, it is possible that the prosecution will add-charge the McMichaels with “attempted false imprisonment”, as well. However, juries tend to be skeptical of add-charges, unless some evidence, developed after the initial charges are filed, is used as the basis for the additional charges. Otherwise it reeks of stacking. However, in order to charge Bryan with agg assault ir the McMichaels with attempted false imprisonment, the prosecution has to attempt to prove that these people conspired to commit these crimes. Something that can be very tricky.

These charges are all incredibly weak, especially for charges which carry a life sentence.

The only thing I can say with surety is that I’m glad it’s not me in this situation.

This is a mess and the vultures of racialism are circling.

texansamurai | May 24, 2020 at 8:42 am

not a lawyer but see this as a tough sell for a jury–unless prosesecution has clear proof that mcmichaels/bryan intended to murder arbery, then seems nothing more than an accident

to me, this entire sequence of events was initiated by arbery–his presence, lawful or otherwise, motivated the phone call from a neighbor that, in so many words, was asking for help–southern men(of every color)are raised to help their neighbors and so the mcmichaels/bryan, lawful or otherwise, responded–would have done the same myself–do not believe the ” brandishing ” nonsense attributed to them being in possession of firearms–they were lawfully carrying–arbery would be alive if he had just kept walking/running as he was obviously free to do–arbery is the one who clearly escalated the incident–he caused his own death

Char Char Binks | May 24, 2020 at 10:19 pm

The lesson is clear: Maintain social distancing, not just six feet away, not just in Georgia, and not just during the official shutdown. Avoid those people at all costs.

James B. Shearer | May 25, 2020 at 1:19 pm

Regarding using the citizen’s arrest provision as a defense, if you are making a citizen’s arrest aren’t you supposed to say something like “stop, you are under arrest” not “stop, stop, we want to talk to you” as quoted in the police report. The language used would suggest to me that they weren’t trying to make a citizen’s arrest.

    “aren’t you supposed to say something like “stop, you are under arrest”

    Q: Does the GA citizens arrest statute set out that requirement?

    A: No, it does not.

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC

      James B. Shearer in reply to Andrew Branca. | May 25, 2020 at 11:17 pm

      “A: No, it does not.”

      Unless it is part of the meaning of “arrest”. Can you arrest someone without telling them they are under arrest?

It appears the McMichaels had no right to make a citizens arrest because Arbery’s mere reported presence at the construction site was, at most, a misdemeanor under GA’s criminal trespass statute. I If he were immediately known by the McMichaels of having just committed a burglary at the site, then that would be a felony that could possibly justify a citizens arrest (assuming further that he was “fleeing”); but the Michaels certainly did not have any particular reason to think that Arbery had just stolen/vandalized anything at the site. He wasn’t carrying away any stolen items or in possession of any burglary tools, and whoever called them in the first place presumably did not tell them that Arbery had actually stolen/vandalized anything.

So the McMichaels can’t succeed with any claim that their actions were authorized by the citizens arrest statute. If they can’t get off that way, then their conduct looks to me like assault with a deadly weapon (i.e., chasing Arbery down with weapons constitutes assault). And then the resulting death when Arbery wisely or unwisely tries to get the gun away makes it felony murder.

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